Chang Wa Shan v. Esther Chan Pui Kwan also known as Chan Pui Chun

HCA 1855/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1855 OF 2010

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JUDGMENT
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BACKGROUND

1.This action arose out of events that took place in the course of a high profile and widely publicized probate trial over the estate of the late Nina Wang (“the Probate Action”) between Mr Tony Chan Chun Chuen (“Tony Chan”), Chinachem Charitable Foundation Limited (“Chinachem”) and the Secretary for Justice.  In the Probate Action, Tony Chan sought to propound the validity of a purported last will of Nina Wang and claimed to be the sole beneficiary of her entire estate.

2.Tony Chan was represented by Haldanes in the Probate Action with Mr Jonathan Midgley (“Mr Midgley”) being the handling partner and solicitor in charge.  Leading counsel for Tony Chan was Mr Ian Mill QC (“Mr Mill”). Ms Frances Lok (“Ms Lok”) of the Hong Kong Bar was the junior counsel.  As will appear in greater detail, there was also another legal team engaged to advise Tony Chan including another London Silk, Mr John McDonnell QC (“Mr McDonnell”).  There is a dispute as to whether the defendant was, at the material time, part of Tony Chan’s legal team assisting Mr McDonnell.

3.The trial of the Probate Action began in May 2009 (“the Probate Trial”).  On the 8^th day of the trial, one of the witnesses for Chinachem, namely Mr Gilbert Leung Kam Ho (“Gilbert Leung”) started to give evidence for Chinachem.

4.Gilbert Leung was cross‑examined by Mr Mill who referred him to an article in the Apple Daily dated 7 May 2009 which reported that shortly after Nina Wang passed away and in July 2007, Chinachem sold a piece of land in Tai Po (“the Land”) to Gilbert Leung’s company.  The article suggested that the Land had a conservative estimated value of $10 million yet Chinachem sold it at a low price of $1.01 million (which was the price at which Chinachem acquired it in 1988).  Gilbert Leung disagreed that the value of the Land at the time was about $10 million.  He claimed that he had not attempted to estimate the value of the Land at all.  He claimed that when he made his witness statement for Chinachem in relation to the Probate Action (ie on 15 May 2007), he did not think anything at all about the Land.  The credibility of Gilbert Leung was in issue at the Probate Trial.  Tony Chan’s legal team was seeking to demonstrate that Gilbert Leung’s evidence had been “bought” by Chinachem.

5.On the 9^th day of the Probate Trial, before Mr Mill continued with his cross‑examination of Gilbert Leung, he produced to the trial judge (Lam J as he then was) and the parties a bundle of documents which included a lot index plan, a land search, and a document in Chinese (“the Document”) purporting to be an investment proposal for the development of the Land into a cinerarium.  Mr Mill explained to Lam J that he sought to produce the Document to test Gilbert Leung’s evidence given the earlier day that there was no valuation of the profitability of the business.  Mr Mill said that it would be relevant to the assessment of Gilbert Leung’s credibility. The Document was also used to attack Gilbert Leung’s independence as a witness to the effect that he received a very large financial benefit from Chinachem shortly after he provided a witness statement to Chinachem for use in the Probate Action.

6.Lam J asked Mr Mill to explain the provenance of the bundle of documents, including the Document, and the following exchanges took place in open court:

“His Lordship: It depends on how the questions are put. Perhaps, Mr Mill, can you tell us the provenance of these Chinese documents before I decide whether ---

Mr Mill: Yes, I can, my Lord. The individual who provided it to us is a Mr Edmund Tsang. He says that he was given that by Mr Gilbert Leung.

His Lordship: Yes, who is this Edmund Tsang and on what occasion was he given this document?

Mr Mill: My Lord, as I understand it, Mr Leung was trying to interest Mr Tsang in the investment, but that’s the extent of my understanding, my Lord.”

PLAINTIFF’ S PLEADED CASE ON PUBLICATION

7.According to the plaintiff’s case[1], the statement made by Mr Mill was false.  It was however not the subject matter of the claim for defamation.  The Amended Statement of Claim pleaded that the source of Mr Mill’s statement was a mobile telephone conversation between the defendant and Mr Midgley “when she was providing instructions to Mr Midgley”[2]. The defendant was acting as a representative of Dr Sidney Siu (“Dr Siu”). The defendant was the person who gave the Document to Mr Midgley.  At the material time, the conversation between the defendant and Mr Midgley took place over the speaker phone and Mr Mill heard it.  Mr Midgley asked the defendant where she had got the Document from.  The defendant replied: “Edmund Tsang”. Mr Mill then asked the defendant, through Mr Midgley, whether he could reveal the name Edmund Tsang to the court.  The defendant said “yes”.

8.The plaintiff then pleaded that the defendant’s answer to Mr Midgley’s question was false and defamatory of the plaintiff[3].  The plaintiff’s case on defamation is thus based on a slander uttered by the defendant to Mr Mill and Mr Midgley.  This was the subject publication.

ABSOLUTE PRIVILEGE

9.The foremost defence put forward by the defendant is that the occasion whereby she uttered the words “Edmund Tsang” was covered by absolute privilege.  The pleaded basis for the absolute privilege is that “the only purpose of the said conversation was to obtain documents and information for use in the trial of the Probate Action”[4]. The defendant then pleaded that it is apparent from the facts pleaded in the Re‑Amended Statement of Claim that such absolute privileged existed to protect the said conversation. 

10.The defence of absolute privilege is absolute in nature.  It provides a complete answer to any claim for defamation even when the subject statement is completely untrue or made with malice.  If I find that the said occasion is covered by absolute privilege, it is not even necessary to embark on analyzing whether the defendant’s utterance constituted a slander at all.  It is thus the first issue that I have to resolve.

11.The defendant’s pleaded basis for absolute privilege necessitates a careful consideration as to the application and possible extension of the legal principles summarized in the seminal dictum of Devlin LJ in Lincoln vDaniels[5]:

“The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second category covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult to define. It is based on the authority of Watson v M’ Ewan[6] in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White[7], the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”

12.In Lincoln v Daniels, the subject defamation was contained in communications sent to the secretary of the Bar Council raising allegations of professional misconduct by the plaintiff.  At the material time, it was the Bench of an Inn of Court which possessed the jurisdiction of disciplinary proceedings against a barrister.  There was no doubt that an inquiry before the Bench of an Inn of Court was a judicial process in which absolute privilege attached to the full extent as if it were proceedings before a court of justice.  The defendant argued that the complaint to the Bar Council fell within either the second or the third categories.  Devlin LJ began with dismissing the argument based on the second category[8]:

“In submitting that it comes within the second he relies chiefly on Lilley v Roney in which it was held that a letter of complaint against a solicitor sent to the Law Society was absolutely privileged. Mr Campbell argues that …the Bar Council must be regarded as the proper channel of communication with the Benchers of the Inns, and therefore that a complaint addressed to the Bar Council is to be treated in the same way as one addressed to the appropriate Bench. I think this argument fails. If there was evidence that the Bar Council was authorized by the Benchers to receive complaints on their behalf my conclusion might be different.”

13.If the complaint letter was sent to the Benchers of the Inns, it would have constituted the act of commencing the judicial proceedings and hence covered by absolute privilege (second category).  Similarly, if there was evidence to establish that the Bar Council was an authorized agent of the Benchers of the Inns in receiving complaints, the sending of a complaint letter to the Bar Council could equally be treated as the initiation of judicial proceedings and hence equally protected under the second category.

14.The arguments then turned on the possible application of the third category.  Devlin LJ said in relation to Watson vM’ Ewan[9]:

“I now turn to the third category. It is obvious that unless there were a category of this sort the absolute privilege granted for matters said and done coram judice might be rendered illusory…

…

I do not treat this principle as necessarily limited to the proofs of witnesses. I think it might well cover, for example, instructions given by a party to his solicitors, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document. …

…

It is a question of how far the principle in Watson v M’ Ewan is to be taken. The other authorities in which the case has been considered show that the connection between the two things – the evidence and the precognition, the document and the draft, the actuality that is undeniably privileged and the foreshadowing of it – must be reasonably close.” (my emphasis)

15.In my judgment it is firstly important, in any given case where a defendant seeks to extend the coverage of absolute privilege on the basis of the third category ie the Watson v M’ Ewan principle, to identify what constitutes the “actuality” and what is argued to be the “foreshadowing of it”.  For instance, in Watson v M’ Ewan, the “actuality” was a witness giving evidence in court.  That was unquestionably protected by absolute privilege being coram judice.  The argued “foreshadowing of it” was the precognition or proof of that evidence taken by a solicitor.  In the case of Lincoln v Daniels, the “actuality” was the actual conduct of disciplinary proceedings before the Benchers of the Inn of Court.  The argued “foreshadowing” was the complaint letter sent, not to the Benchers of the Inn of Court, but to the Bar Council.  With this understanding, one can then better appreciate the following dictum of Devlin LJ[10]:

“It is not at all easy to determine the scope and extent of the principle in Watson v M’ Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails.” (my emphasis)

In other words, the pertinent question is: whether the argued “foreshadowing” act can properly be regarded as practically necessary for the attainment of the “actuality” which unquestionably deserves the protection of absolute privilege.

16.Secondly, it is common ground that this court has to examine closely the related issues of public policy.  It is intuitive and extremely helpful to be reminded of the dictum of Ma JA (as he then was) in Wong Shui Kee Roger v Victor LL Chu & oths[11]:

“23. The defence of absolute privilege is, as the name suggests, absolute in nature. It will provide a complete answer to any claim for defamation even where the relevant remarks are completely untrue or made with malice. It is precisely because of the intrusive nature of this defence into what otherwise would be a person’s right to sue for defamation that the courts have traditionally been quite guarded in its application. In Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 QB 431, at 451, Lopes LJ remarked in relation to absolute privilege that, ‘It is, however, a privilege which ought not to be extended’.

24. It would be wrong to say that the categories of absolute privilege are closed and one can see how absolute privilege has been made to apply to situations not envisaged at the time of the Royal Aquarium case (see for example the application of the defence to statements made prior to legal proceedings). Nevertheless, it is important to bear in mind, when considering this defence, the underlying rationale.

25. This is of course the public interest. As Devlin LJ said in Lincoln v. Daniels [1962] 1 QB 237, at 255, ‘But absolute privilege is granted only as a matter of public policy and must therefore in principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed’.

26. As to the defence of absolute privilege in judicial proceedings, which is relevant in the present case, the public interest consists of the administration of justice. As Brett LJ said in Munster v. Lamb (1883) 11 QBD 588, at 604, ‘the rule of law is that what is said in the course of the administration of the law, is privileged’.

27. Thus, in considering questions of absolute privilege in relation to judicial proceedings and the acts of those involved in it (among them judges, barristers and solicitors), it is I think important that one bears in mind at all times this aspect of the administration of justice.

28. There is a danger when having regard to the three categories of absolute privilege identified by Devlin LJ in Lincoln v. Daniels at 257, to analyse them as words in a statute. Such an approach is apt to give rise to confusion and unnecessary difficulties. Esoteric and ultimately quite pointless questions arise such as whether document brought into existence for ‘the purpose of the proceedings’ (second category) must also be ‘practically necessary’ (third category).

29. In my view, so long as it is borne in mind that the underlying them is the administration of justice and that the three categories can and often do overlap, they provide in most cases a ready answer to any questions involving absolute privilege.

30. It is of course crucial to bear in mind in the application of the three categories, the question of publication. Devlin LJ’s dicta in Lincoln v. Daniels at 257, do not expressly mention this aspect. Publication is of course crucial in defamation actions. In the context of the three categories, one must further ask the question: to whom was the statement, even if created or made in circumstances falling within one or more of the said three categories, published? For example, statements contained in pleadings are absolutely privileged, but if the pleadings are then sent to a newspaper and published, absolute privilege does not apply…” (my emphasis)

17.In the present case, senior counsel for the plaintiff, Mr Yu SC, argued that absolute privilege should not be extended to the subject communication for the following reasons:

(i) The defendant did not supply the information to Tony Chan (or his legal team) with a view to becoming a witness.  She was no more than a paid informer.  Her contact with Mr Midgley was and exclusively to do with the supply of material for cross‑examining Gilbert.

(ii) In the circumstances, it cannot be said that absolute privilege is necessary for the administration of justice, there being no hindrance on potential witnesses to come to give evidence in the Probate Action.

(iii) There is a clear distinction between a person who speaks to a lawyer with a view to being a possible witness in a lawsuit, and a person who supplies material for possible use in discrediting a party or witness in court proceedings.  A potential witness speaks to the lawyer on the basis that if required, he will supply a signed statement verified by a Statement of Truth.  He would give evidence under oath and be cross‑examined.  He would be subject to prosecution for forgery.  On the other hand, the supplier of material for use in cross‑examination does so covertly with his identity concealed.

(iv) The public policy of affording absolute privilege is not extended beyond the protection of persons who come forward to give testimony before the court and be a participant in the process.

(v) It is not the public policy to afford absolute privilege to all persons who profess to be able to provide information for use in cross‑examination.  Otherwise it may encourage the supply of malicious information which would be contrary to the interests of justice.

(vi) Insofar as it is recognized in Westcott v Westcott[12] that absolute privilege extended to an informant in criminal proceedings, no such public policy applies to an informant in civil proceedings.

18.It can be seen that the main focus of Mr Yu’s arguments was that the defendant was not a witness or potential witness in the Probate Action.  He argued that absolute privilege attaching to a witness’s giving of evidence should not be extended to protect a mere informer.  With respect, such arguments were too narrowly defined and lost sight of the following important facts relating to the nature of the “publication” in question:

(1) According to the evidence of Mr Midgley, a witness for the plaintiff, the defendant became known to him when she claimed to be in a position to provide papers of a previous trial in which she was engaged with Gilbert Leung.  To access the papers, she had to go to England. She said that the judge in that trial made remarks critical of Gilbert Leung’s credibility.  Arrangement was thus set up by the defendant to retrieve the relevant papers from her former solicitors in England.  That was supervised by Mr McDonnell.

(2) Although parties disagreed on the exact description of the defendant’s involvement[13], it is not in dispute that the defendant did provide services for which she issued bills to Haldanes and was paid by them.[14]  Mr Midgley gave evidence that the defendant also became involved in some other issues[15].  Mr Midgley’s evidence was consistent with that of Mr McDonnell (a defence witness) who gave more detail evidence as to the various types of assistance he received from the defendant which he considered valuable[16].  He even mentioned the assistance the defendant gave to Mr Mill. When the defendant gave evidence that she was invited by Tony Chan to join his legal team and did so, she was not challenged in cross‑examination[17].  Mr McDonnell emphatically regarded the defendant as part of the legal team.  Mr Midgley did not use that description but he was not specifically asked in detail.  In the circumstances, I am satisfied on the evidence that prior to the subject communication on 21 May 2009, the defendant had actively participated in the preparation of the Probate Trial as part of the legal team of Tony Chan.  The defendant was not a “stranger” to the proceedings in the Probate Action immediately prior to the subject communication. 

(3) Mr Midgley said that amongst those issues in which the defendant was involved, she informed Tony Chan’s legal team that a third party can point to a document which would be useful in impeaching Gilbert Leung’s credibility[18].  That third party however asked for a substantial sum to be paid for the provision of the document.  Eventually, it was arranged through the defendant that the English members of Tony Chan’s team, Mr Mill and Mr McDonnell, would be given the document to consider its potency.  On the other hand, the Hong Kong team would be kept away from this document.  It was accepted that pursuant to this arrangement, the Document was provided by the defendant to Mr McDonnell and Mr Mill in March 2009.

(4) There is no suggestion that the Document was other than an authentic document.  Neither is it suggested that the Document contained any defamatory statement.  Mr McDonnell considered the Document relevant and useful in the cross‑examination of Gilbert Leung[19].  Mr Mill (who would have the last word[20]) did not consider the Document irrelevant or not useful but he opined that the third party asked for too much.  Thereupon, the matter was shelved[21].  It was only on 21 May 2009 that there was a change of heart on the part of the third party who agreed to allow Tony Chan’s lawyers to make use of the Document in the cross‑examination of Gilbert Leung without making the payment as a precondition.  The third party was contended to be paid in the event of Tony Chan winning in the Probate Action. 

(5) Consequently, Mr Mill was able to release the Document to the Hong Kong team shortly before the trial started at 10 o’clock on 21 May 2009.  An hour’s adjournment was sought during which junior counsel Ms Lok translated the Document from Chinese to English[22].  Mr Mill was clearly contemplating the use of the Document in open court for the cross‑examination of Gilbert Leung.  It was with this in mind that Mr Mill asked Mr Midgley to make a call to the defendant “seeking instructions” from her[23].  It is the plaintiff’s case that Mr Mill was seeking instructions from the defendant as to the provenance of the Document, expecting that he might be questioned by the trial judge.

(6) It was under the above circumstances that the mobile telephone conversation, which was the “occasion of the publication”, took place between Mr Midgley and the defendant.  The defendant uttered the words “Edmund Tsang” in response to a request for information from Mr Midgley as to the provenance of the Document which the defendant had provided earlier to Mr McDonnell and Mr Mill.  The information was sought due to Mr Mill’s imminent intention of using the Document in the cross‑examination of Gilbert Leung right after the short adjournment. 

19.In my view, the argument of Mr Yu also lost sight of the “actuality” in question. In the present case, Mr Mill was intending to produce the Document for its use in the further cross‑examination of a witness.  In answering the court’s query on the provenance of the Document, he told the court that the plaintiff’s name was mentioned as the source of the Document.  What Mr Mill did and said in open court was the “actuality” that was undoubtedly absolutely privileged.  The issue in this case is whether this absolute privilege applied also to the argued “foreshadowing of it”: the communication between Mr Midgley/Mr Mill and the defendant on the issue of provenance of the Document at a time when Mr Mill was imminently contemplating and intending to make use of the Document in the cross‑examination of Gilbert Leung in open court proceedings.  In my judgment, it is important to bear this identification in mind in the subsequent analysis of policy considerations.  This is, after all, what the defendant argues in her pleaded case.

THE PUBLIC POLICY INVOLVED

20.The important public policy involved is the effective administration of justice.  In Taylor v Director of the Serious Fraud Office[24], Lord Hoffmann explained the policy rationale as “to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say”.  In examining whether an established type of absolute privilege should be extended, Lord Hoffmann quoted with approval the following judgment in the Australian case of Mann v O’ Neill[25] which described the rationale as one of necessity:

“It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.’ Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privilege.” (my emphasis)

It is also helpful to bear in mind the list of relevant questions posed by Lord Woolf MR in S v Newham London Borough Council[26]:

“a. what is the nature and importance of the interest which the [defendant] is seeking to protect? (the nature and significance of the interests);

b. whether the scale and risk of damage to that interest is sufficiently serious to create a pressing need to protect that interest? (the degree of risk);

c. what is the breadth of the immunity which will have to be granted in order to provide protection for that interest? (the breadth of the immunity);

d. as a matter of principle would it be appropriate to extend to this situation the immunity from suit which has been applied in other situation? (the point of principle); and

e. is the risk to public interest which the [defendant] is seeking to protect so great that it should over-ride the public interest that a person should be entitled to have access to the courts to seek a remedy for a wrong which he alleges he has suffered? (the balance between the competing public interests).”

21.In our adversarial system of civil justice, an advocate participates in the administration of justice through fearlessly and effectively presenting his client’s case for the court’s consideration.  As a corollary, he is also required to fearlessly and effectively challenge the veracity of his opponent’s case.  Cross‑examination of witnesses is one of the key features in our system of administration of justice.  It is through cross‑examination that the court can properly assess the reliability of a witness before deciding whether or not to accept his evidence.  The maintenance of an effective process of cross‑examination is as important to judges as it is to lawyers in the discharge of their functions and duties.  It is clearly in the public interest (subject to rules of law relating to evidence and procedure) that lawyers be free to present and the court be fully appraised of all relevant information pertaining to the reliability or otherwise of a witness.  If encouraging the coming forward of witnesses to give evidence in court constitutes an important public interest, the facilitation of an effective mechanism of testing witnesses’ veracity is also keenly in the public interest.  In my view, maintenance of an effective process of cross‑examination is no less important than ensuring that witnesses can fearlessly come forward to give evidence.  They are two prongs of a tuning fork.

22.Credibility of a witness is normally tested with reference to inherent probabilities of his evidence; consistency with contemporaneous documentary evidence; and consistency with the evidence of other witnesses.  These will normally relate to “facts in issue” or “facts relevant to a fact in issue”.  Mr Yu submitted that there is a clear distinction with cross‑examination on matters going solely to credit.  He referred to the rule of “Finality of Answers”.  The learned author of Phipson on Evidence defined the rule as follows:

“Answers to questions as to collateral facts, put in cross‑examination, are generally regarded as final, in the sense that the cross‑examining party may not then seek to contradict such answers by other evidence. There is no means of determining what is collateral to the main issues in the case; the concept of collateral issues is just another way of expressing degrees of relevance.”[27]

23.The learned author then pointed out that there are three recognized exception to the rule one of which is “evidence to show the witness is biased in favour of the party calling him”.  In the present case, the Document was intended to be used by Mr Mill in the cross‑examination of Gilbert Leung to demonstrate that he had been “bought” by Chinachem to act as its witness.  It thus fell squarely within the recognized exception.  Mr Mill was in my view perfectly entitled to adduce the Document irrespective of Gilbert Leung’s answers.  The fact that Mr Mill did not eventually seek reliance on this exception is irrelevant for the present analysis.  In my judgment, the Document was clearly a relevant document that could and should have been used in the cross‑examination of Gilbert Leung.

24.The use of a relevant document by an advocate in cross‑examination in open court proceedings is obviously protected by absolute privilege even if the contents bear statements defamatory of others.  In the present case, I am of the view that Mr Mill was entitled to consider the Document as a relevant document to be used in cross‑examining Gilbert Leung.  The question then becomes: is it “practically necessary” for Mr Mill to seek and obtain instructions as to the provenance of the Document so as to enable him to make proper use of the Document in the open court proceedings?

25.Before an advocate sets out to test the credibility of a witness with reference to a document he possesses, common sense of justice dictates that he should have access to information or instructions relevant to the contents, purport and provenance of that document so that he could exercise his professional judgment. He would need such information to properly plan his cross‑examination and his trial strategy.  He would also need such information to satisfy plausible queries from the trial judge in the course of his attempt to make use of the said document in cross‑examination.  In my judgment, proper administration of justice requires freedom of speech and communication between an advocate and the provider of such a document on matters directly pertinent to the contents, purport and provenance of that document.  It is practically necessary for the administration of justice to ensure that an advocate be afforded with such free and uninhibited communication, otherwise he would not be in a position to properly discharge his role and duty.  If the provider of the document is at risk of being sued for defamation in respect of such information he provides to the advocate, he would likely be deterred from speaking honestly and freely to the advocate.  In the end, the advocate would be seriously disadvantaged in his assessment of whether or not and how he could make use of the document in cross‑examination. Ultimately, the efficacy of cross‑examination as a mechanism to attain justice may be seriously jeopardized. 

26.In my view, the existence or otherwise of absolute privilege cannot depend on whether the provider of such document is the client, a planned witness, a potential witness or an informer.  The important starting point is that the document was provided to the advocate in the course of preparing for the court proceedings.  When asked by the advocate to provide information relating to the contents, purport and provenance of such document, the provider of the document should not be inhibited from providing such relevant information to the advocate.  As Devlin LJ observed in Lincoln v Daniels[28], the principle of Watson v M’ Ewan was not limited to proofs of witnesses and might cover for instance “instructions given by a party to his solicitors going beyond matters to which the party could himself depose…”. In my view, the rationale behind the necessity of such freedom of communication lies in the facilitation of the advocate’s proper discharge of his function in the machinery of cross‑examination.  Hence, the provider of such relevant information should enjoy the same freedom of communication with the advocate whether or not he is the client, a planned witness, a potential witness or an informer.  In providing such relevant information to the advocate, the provider should not be inhibited by the fear of subsequent flank attack.  Another way of seeing the matter is: the communication of relevant information from such a person is proximately connected with the actual use of the document in court proceedings by the advocate — the “actuality” (ie the use of the document by the advocate in court being protected by absolute privilege) is closely connected with the “foreshadowing of it” (ie the provision of relevant information pertaining to the contents, purport and provenance of the document which the advocate possesses and is contemplating its use in court). 

27.It can be seen from the above that the “occasion” that is sought in this case to be protected by absolute privilege is fairly circumscribed.  Extension of absolute privilege to this restrictive situation can in my view be justified by its very limited scope — it would merely protect publication by the provider of a document (which the advocate possesses and is contemplating its use in actual court proceedings) to the advocate in respect of information pertinent to the contents, purport and provenance of such a document.  It may also justifiably be extended to cover such communication between such a provider to the instructing solicitors of the advocate. 

28.I need to point out that it is not necessary for me to decide on a more generalized question posed by Mr Yu: “whether absolute privilege extends to all persons who profess to be able to provide information for use in cross‑examination in civil proceedings”.  Such generalized question does not arise from the facts of this case.  It must be noted that the Document (which is not suggested to contain any defamatory statement) had already been supplied by the defendant to the legal team of Tony Chan.  The supply of the Document was not the occasion/publication in issue.  Furthermore, prior to the occurrence of the occasion/publication on 21 May 2009, Mr McDonnell and Mr Mill already formed a view as to the relevance and usefulness of the Document.  The subject occasion/publication related solely to Mr Mill’s request for instructions/information on the provenance of the Document shortly prior to his intended use of the Document in open court in the cross‑examination of Gilbert Leung.  The special factual context under which absolute privilege is argued in this case should be firmly borne in mind.  The far more general proposition posed by Mr Yu may have to be considered and answered in a subsequent case when the facts so demands. 

29.For the above reasons, I do not find it necessary or relevant to distinguish between the positions of a witness, a potential witness and a “mere informer”. I do not find such distinction elucidative or determinative.  My analysis of public policy does not proceed by way of extending the absolute privilege on witnesses’ evidence to the situation of a mere informer or provider of information.  My analysis is grounded upon on the close proximity between the subject occasion/publication and Mr Mill’s actual utterance in open court in the course of making use of the Document.  For the same reason, I do not need to resolve the differences between Mr Yu and Mr Kenneth Lam (counsel for the defendant) on the relevance and impact of Westcott v Westcott which is a case in which the English Court of Appeal extended absolute privilege to out of court statements (whether made by witnesses, informants, investigators or prosecutors) which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution. 

30.Before I conclude on the matter, as suggested by Lord Woolf MR in S v Newham Longdon Borough Council, it is helpful to conduct a cross‑check by studying and comparing with the genesis of the gradual extensions of absolute privilege originating from that afforded to witnesses giving evidence in the course of judicial proceedings.  The starting point was the entrenched recognition that all matters done coram judice are absolutely privileged.  Then in Watson v M’ Ewan, it was extended to the precognition or proof of the witness’s evidence (who actually gave evidence in court) by a solicitor.  In other words, the absolute privilege was then still attached to the document that contained the evidence that a witness eventually gave coram judice.  The justification for this extension was explained by Lord Halsbury as follows[29]:

“Could a plaintiff say: ‘I do not bring the action against you for what you said in the witness box, but I bring the action against you for what you told the solicitor you were about to say in the witness box?’... If that could be done, the object for which the privilege exists is gone, because no witness could be called, no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say: ‘I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all.’ It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice‑namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony.” (my emphasis)

31.The logic of Lord Halsbury was soon applied by the Court of Appeal in Beresford v White[30] to extend absolute privilege to the preliminary examination of a person who might or might not be in a position to be a witness on behalf of a party in contemplated proceedings.  In Darker v Chief Constable of West Midlands[31], Lord Hope explained that this extension, ie to things not said or done in court, was based on one and only one public policy: “to encourage honest and well‑meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity”[32].  Lord Hope then continued:

“It is clear that, if that objective is to be achieved, it would not be satisfactory to confine the immunity to evidence given by witness while they are actually in the witness box. Witnesses seldom enter the witness box without having been interviewed beforehand by a solicitor or an investigating officer. As the Earl of Halsbury said in Watson v M’ Ewan…, the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were not merely in contemplation but had not yet commenced. The same view was taken in the case of an expert’s report prepared in the knowledge that, if there was evidence to bring proceedings for child abuse, proceedings would be brought and the report would form part of the evidence in those proceedings: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755G, per Lord Browne-Wilkinson. …

A similar extension of the immunity to statements given by police officers who later gave evidence or were potential witnesses at the trial can be justified on public policy grounds. Here again, it is normal for police witnesses to undergo a preliminary examination during the preparatory stage in order to find out what they can prove. Prosecutors and defence solicitors require this information in order that they may take an informed decision as to which witnesses to call and whether they should be cross‑examined and, if so, on what grounds. The trial process would be inhibited if police witnesses and potential witnesses were to be exposed to action for things said or done by them during the preparatory stage when they are undergoing this preliminary examination. The same approach can properly be taken to the preparation of technical reports by police officers with expertise in such matters as ballistic, explosives or fingerprinting. As in the case of other witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.”(my emphasis)

Lord Clyde also explained the genesis of the extension of the “witnesses’ privilege” as follows:[33]

“The immunity attaches essentially to what persons who may be called to give evidence say or do before the court. It is an immunity ‘in respect of evidence given in court’ … or ‘for words spoken or written in the course of any judicial proceedings’ . But the immunity would be worthless if it were confined to actual giving of evidence in the court. Thus, as was recognized in Watson v M’ Ewan, the immunity should cover what is said at the stage when a witness provides a statement of the evidence which he or she is going to give in court, since the immunity relating to what occurs in the trial could otherwise readily be circumvented. Even if a potential witness provides a statement but is not in the event called as a witness, nevertheless the immunity ought to apply. As the Earl of Halsbury LC recognized in Watson v M’ Ewan, the practical answer to the fear of hardship caused by the allowance of an immunity in such a case is that no one would know anything about the statement; it would simply slumber in the solicitor’s office. But at the stage of the obtaining of the statement it would not be possible to affirm with certainty whether or not the evidence which it contained was to be used in court and the possibility is enough to support the immunity. The immunity cannot depend upon the chance of the particular person being called as a witness in court.

The same consideration of avoiding a circumvention of the immunity should serve to justify its application at the early stages of a litigation or a prosecution where evidence is being collected with a view to court proceedings. It may be that here some delicate questions of fact may arise as to whether or not the material in question was or was not provided with a view to court proceedings. But while the line may be difficult to draw in some cases the distinction in principle is clear. In the case of statements, as Drake J recognized in Evan v London Hospital Medical College (University of London), the statement must be made ‘for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered’ …”(my emphasis)

32.It can be seen that the privilege has been gradually extended beyond what the witness actually said in court.  It is now extended to early stages of a litigation where evidence is being collected from potential witnesses with a view to court proceedings.  Furthermore, the existence of the privilege is not dependent on whether a person would eventually be called as a witness to give evidence in court.  In my view, all these extensions are justified because they are practically necessary steps of evidence collection undertaken with a view to court proceedings.  Returning to the occasion of privilege argued in this case, once it is accepted that the maintenance of an effective process of cross‑examination is no less important in the administration of justice then encouraging potential witnesses to come forward, it is difficult to see why absolute privilege should be confined to the actual use of the document in the course of cross‑examination of a witnesses.  Taking instructions (regarding contents, purport and provenance) from the provider of a document is as important and proximate to the actual use of the document in court proceedings as the taking of proofs vis‑à‑vis the actual giving of witnesses’ evidence in court.  The taking of such instructions is also a necessary integral step in evidence collection/preparation.  In my view, it is a matter of necessity that absolute privilege should be extended to the communication (pertaining to the contents, purport and provenance of that document) between the provider of such document and the advocate/lawyer who was contemplating the use of that document in the cross‑examination of a witness.  As Lord Clyde observed, delicate questions of fact may arise in any given case as to whether a particular document is under contemplation for its use in cross‑examination or whether the communication is pertaining to the contents, purport or provenance of that document.  The line may indeed be difficult to draw in some cases.  It would not however justify an indiscriminate bar to the recognition of absolute privilege.  In any event, no such difficulty exists on the facts of the present case. 

33.In affirming the various extensions beyond the actual giving of evidence by witnesses in court, the courts were fully aware of the risk and hardship of depriving a claimant’s access to court even in cases of false and maliciously made statements.  Such risk and hardship were however considered outweighed by the far greater risk and hardship of potential witnesses not coming forward.

34.In the context of the present case, I consider it practically necessary for the advocate/lawyer to be able to freely obtain relevant information pertaining to the contents, purport and provenance of documents he has obtained in the course of preparation of the trial.  Otherwise, it would not be possible for the advocate/lawyer to properly understand or assess the relevance, weight and utility of such documents, hence rendering it impossible for the advocate/lawyer to properly discharge his function.  The situation is not materially different from “a preliminary examination of witnesses to find out what they can prove” as featured in Beresford v White and mentioned in the dicta of Lord Hope above.  The freedom to obtain such information by an advocate depends on a reciprocal freedom on the part of the document provider to impart such information when asked by the advocate.  The document provider should not be inhibited by the fear that he may be subjected to litigation in so doing.  Otherwise, the freedom on the advocate/lawyer to utilize all relevant documents in the process of cross‑examination may be rendered nugatory.  If absolute privilege is not so recognized, documents highly relevant to the resolution of disputes would equally “slumber in the solicitor’s office”, because the advocate would not be in a position to properly utilize them in court proceedings.  In my view, the possible risk and hardship (arising from inability to pursue against malicious communications) is outweighed by the greater risk and hardship that documents relevant to the assessment of witnesses’ credibility could not be effectively deployed by advocates in the machinery of cross‑examination. In this sense, this kind of risk and hardship is not materially different from the risk and hardship of potential witnesses not coming forward to give evidence.

35.Mr Lam referred me to the decision of the Ontario Court of Appeal in Web Offset Publications Ltd v Vickery[34].  In that case, the Ontario Court of Appeal held that where a lawyer (in preparing for court proceedings) seeks out information from another person and that other person provides the information, then whether called as a witness or not, the information is absolutely privileged.  Unfortunately, before arriving at that decision, the Ontario Court of Appeal did not undergo detail analysis on policy grounds.  It simply accepted the authority of a passage in Gatley on Libel and Slander, 9^th edn, §13.10.  With respect, I cannot derive any assistance from this decision or the subsequent Canadian case of McDaniel v McDaniel[35] which simply endorsed and applied Web Offset Publications Ltd v Vickery without any further analysis.

CONCLUSION ON ABSOLUTE PRIVILEGE

36.For the above reasons, I conclude that the communication between Midgley/Mr Mill and the defendant over the mobile telephone on 21 May 2009 was protected by absolute privilege.  Accordingly, no action can be brought upon it and the plaintiff’s claim should be dismissed on this ground alone.

37.Nevertheless, Mr Yu politely reminded me that my decision would involve a novel point of law which parties may wish to take it further to the appeal courts.  He thus invited me to proceed to make findings of fact on the evidence and to deal with other legal issues on the assumption that the subject communication was not so protected by absolute privilege.  I shall do so as invited. 

WHETHER THE DEFENDANT PUBLISHED THE ALLEGED SLANDER

38.This factual issue arose curiously from the facts of this case.  There is no [36]dispute between the parties as to what the defendant actually uttered in response to a question put to her by Mr Midgley over the phone.  The defendant only uttered the name “Edmund Tsang”.  The parties’ cases differ on what was the question put by Mr Midgley to the defendant.  It is only through a combination of the question and answer that the defendant could possibly be said to have made a “statement”.  The plaintiff’s case is that Mr Midgley asked the defendant: “where had you got the Document from”.  According to Mr Lam’s Written Opening, he invited me to find that the question put by Mr Midgley was: “to whom had Gilbert Leung submitted the investment proposal in the Document to”.

(I) The defendant’s evidence

39.In the witness statement of the defendant (which she adopted as her evidence‑in‑chief), after explaining why she became involved in the preparation for Tony Chan’s defence in the Probate Action, she continued to say as follows:

“38. As I have already indicated, however, Dr Siu wanted to be paid by Tony Chan for providing this evidence; and he asked me to explain that to Tony. Moreover he did not want his own identity or the details of the transaction between Chinachem and Gilbert to be disclosed until the payment had been agreed; and he asked me to explain that also.

39. I reported this to Tony Chan who was prepared to pay in principle but wanted the value of Dr Siu’s information assessed by his own legal team and asked me to explain it to them.

40. I met Tony again on 9 March 2009 with his solicitor Mr Jonathan Midgley (‘Mr Midgley’), at Mr Midgley’s office; and I had a further meeting with Mr Midgley the next day. The upshot was that I should be sent to London to recover the Court files from my own case against Gilbert and to discuss with Mr McDonnell and Mr Ian Mill QC, the leader of Tony Chan’s legal team (‘Mr Mill’), what Dr Siu’s information would be worth. Dr Siu was willing for his identity and details of his story and the supporting documents to be disclosed to Mr Mill and Mr McDonnell for them to evaluate but not for any of them to be disclosed to Tony or any of the legal team in Hong Kong.

41. Initially there was some hesitation over proceedings with this plan, but on 17 March 2009, a letter to me from Wilkinson & Grist was faxed to Hill House asking for my assistance on behalf of the other side. I reported that to Mr Midgley and a decision was made very quickly to send me to London to recover my Court files and show them to Mr McDonnell and Mr Mill and also to show them the details of Mr Siu’s information so that Mr Mill could decide whether it should be used, and, if so, what it would be worth Tony Chan paying for it.

42. An Agreement was also drawn up and signed between me and Tony Chan under which I was to provide a signed statement setting out everything relevant which I knew but it was agreed that the statement would not be used without my consent. That was signed by Tony Chan on 23 March 2009 and by me on 27 March 2009.

43. Between 24 and 28 March 2009, I was in London collecting and sorting out my papers concerning my case against Gilbert from Mr Thrower and from Hill House. There were four or five boxes of them. I met Mr Midgley and Mr McDonnell in London and spent several days preparing notes for Mr McDonnell explaining references to Tony Chan and other relevant matters in the voluminous letters I received from Gilbert while he was in prison.

44. I also gave Mr McDonnell copies of Dr Siu’s document. I did not meet Mr Mill in London, but I know that he received from Mr McDonnell the information which I had given him concerning Dr Siu’s information, including Dr Siu’s identity.

45. I know that because Mr McDonnell forwarded to me on 24 April 2009 an email which he had sent to Mr Mill the previous day with various attachments including a file called ‘Anon.pdf’ which contains a tabular note of the transactions concerning the land which Gilbert received from Chinachem in return for his Witness Statement and of relevant details about the various companies involved: that note includes Dr Siu’s full name ‘Dr Sidney Siu Yim-kwan’…

46. There was no change in the situation so far as I was concerned until about a week before Gilbert gave evidence. I was interviewed by Tony Chan’s Junior Counsel, Miss Frances Lok Man-yin (‘Ms Lok’, presumably for purpose of preparing the statement I was supposed to provide. But there was no progress towards agreeing terms with Dr Siu for the use of his information and that caused him to become aggrieved and frustrated.

47. Then towards the end of the week before Gilbert was to give evidence, I was asked to invite Dr Siu to meet Tony Chan at Mr Midgley’s office. The meeting took place on Sunday afternoon, 17 May 2009, and was attended by Tony Chan, Mr Midgley, Ms Lok, Dr Siu and me. Dr Siu gave his name card to Tony Chan and Mr Midgley at the outset. There was then a lengthy discussion, mainly in Cantonese, about the terms on which Dr Siu’s information might be used and also about a compromise of the Probate Action which some associates of Dr Siu were offering to finance. The discussion was inconclusive and ended acrimoniously. Ms Lok appeared to be making a full note of the discussion on her laptop. I should mention that Mr Midgley does not appear to speak or understand Cantonese.

48. After that meeting I went back to my factory in China. Gilbert’s evidence in the witness-box began on Wednesday 20 May 2009; and the Transcript was sent to me overnight by e-mail.

49. On Thursday 21 May 2009, I had an early conversation by telephone with Mr Mill to discuss Gilbert’s evidence on Wednesday. I was then telephoned by Ms Lok who wanted further clarification of the information being provided by Dr Siu and the terms on which he would allow Gilbert’s Land Searches and investment proposal to be used in cross‑examination. Ms Lok spoke with me in Cantonese, though I gathered Mr Midgley was with her.

50. There was a series of such conversations between me and Ms Lok interspersed with calls from me to Dr Siu; and in the end agreement was reached on terms which permitted Dr Siu’s information to be used by Mr Mill.

51. Finally there was a call from Mr Midgley to me in which he asked me who Gilbert had submitted the investment proposal to. I answered ‘Edmund Tsang’ because that is what I had been told by Dr Siu. It has now been confirmed that that is correct by emails between the plaintiff and Gilbert which the plaintiff has disclosed by way of Discovery.

52. I know that Mr Midgley says that that is not what he asked me, but that is how I understood his question. I cannot understand why he or Mr Mill would have been asking me at that stage who had provided the information. Mr Mill had been given Dr Siu’s name by Mr McDonnell in April (if not before); and Mr Midgley had met Dr Siu and been presented with his name card at the meeting at his own office on the previous Sunday.

53. There was clearly a mistake or misunderstanding which led to the plaintiff’s name being mentioned in Court that day by Mr Mill in all honesty. But I do not believe that the mistake or misunderstanding was attributed to me.” (my emphasis)

40.In her 2^nd Supplemental Witness Statement, the defendant said:

“23. Dr. Siu’s name was again mentioned (as ‘Dr S’) in the subsequent emails which I sent to Mr John McDonnell QC on 18 May 2009 at 06:19 hours. Everything I had said in that email was true. Mr Jonathan Midgley met Dr Siu face-to-face on Sunday 17 May 2009, and was told Dr Siu was the source of the Document. He obtained Dr Siu’s business card during that meeting. Dr Siu quarreled with Tony Chan and his legal team about ‘using GL’s deal information without payment’. Mr Midgley must have known about the identity of the informant as a fact since that day, and there was simply absolutely no reason why he would ever ask me for that information again.

…

34. In fact, I believe this unfortunate saga only stemmed from the miscommunication during the telephone conversation between Mr Jonathan Midgley and me on 21 May 2009 (and to the best of my recollection and belief, that miscommunication was not a mistake on my part). I understand Mr Midgley had clarified, before this action was commenced, that there had been a miscommunication which led to the plaintiff’s name being mentioned in court as the provider of the Document. However, the plaintiff appears to have refused to accept that it was a miscommunication. But I do sincerely hope that the plaintiff can get to realize and accept that …

…

40. I uttered the 2 words in question, i.e., ‘Edmund Tsang’ (the ‘Words’), honestly believing that I was giving an answer to the question “to whom had Gilbert Leung submitted the investment proposal in the Document to”. In other words, I published the Words honestly believing that they meant ‘Gilbert Leung submitted the investment proposal in the Document to Edmund Tsang for Edmund Tsang’s consideration’, and I honestly believed that to be true at the time I uttered the Words. Indeed, as of today, I still believe that to be the truth.

41. I gave that answer, and published the Words, in complete good faith, without any malice, and without any ulterior motive, directly in response to a question asked of me by Mr Midgley, in the honest belief that it was part of my moral duty towards Tony Chan and this Honourable Court to provide that information to Mr Midgley, and in discharge of that moral duty.  …”

41.The main argument of the defendant is that at all material times prior to 21 May 2009, Mr Midgley and Mr Mill already knew that it was Dr Siu who provided the Document to Tony Chan’s legal team.  Consequently, it was inherently improbable that they had asked the question: “where had the Document come from”.

(II) Mr Midgley’s evidence

42.On this issue, the plaintiff relies on the evidence of Mr Midgley who gave evidence pursuant to a subpoena and by video‑link.  No witness statement has been filed by Mr Midgley.  He however adopted the written response he filed in relation to a Law Society’s enquiry consequent upon a complaint lodged by the plaintiff against him and Haldanes.  I shall set out the relevant part of the said written response:

“7. By the morning of the day on which Mr Leung was to be cross‑examined by Mr Mill QC, 21 May 2009, we still had not obtained from Ms Chan that third party consent, but she had supplied the material which was involved. Moreover, we had met and spoken with Ms Chan and she had appeared entirely straightforward at all times.

8. That morning, I received a telephone call from Ms Chan informing me that the (unidentified) third party who had produced the written material had now for the first time authorized her to allow us to use that written material for that purpose. I immediately went to see Mr Mill QC in his hotel prior to Court to inform him of this amongst other things.

9. Mr Mill, who had possession of that material, told me that he required to speak with Ms Chan in my presence (using my mobile telephone’s loud speaker operation for the purpose) to be sure that the necessary authority had been given, and to seek further information, before he was prepared to use that material in his cross‑examination of Mr Leung. Accordingly, I telephoned Ms Chan on my mobile telephone with the loud speaker phone function on, and Mr Mill relayed his questions through me as instructing solicitor.

10. Once Ms Chan had confirmed that authority had indeed been given to the use of the material, Mr Mill asked through me where it had come from. Mr Mill has informed me that he wanted the answer to this question because he anticipated (correctly as it turned out) that the trial judge might ask the same question before permitting cross‑examination to proceed. Ms Chan’s answer to that question was ‘Edmund Tsang’. The answer that she gave was heard by Mr Mill. Mr Mill than asked Ms Chan through me whether, if it became necessary, he could reveal the name Edmund Tsang to the Court. Ms Chan said ‘yes’. Again, Mr Mill heard the question that I put and the answer that she gave.”[37]

43.Mr Midgley’s version was backed by a written confirmation from Mr Mill to the Law Society[38].  As a matter of fact, the plaintiff also lodged a complaint to the Bar Association against Mr Mill who responded in the same fashion.  Mr Midgley’s evidence‑in‑chief was effectively his confirmation of the correctness of his written response to the Law Society’s enquiry.  He added the following points:

(1) The defendant became known to Mr Midgley when she claimed to be in a position to provide papers of a previous trial in which she was engaged with Gilbert Leung.  To access the papers, she had to go to England.  She said that the judge in that trial made remarks critical of Gilbert’s credibility.  Arrangement was thus set up by the defendant rather enthusiastically to retrieve the relevant papers from her former solicitors in England.  That was supervised by Mr McDonnell. 

(2) The defendant also became involved in some other issues and amongst those issues in which she was involved, she inform the team that a third party can point to a document which would be useful in impeaching Gilbert Leung’s credibility.  That third party however expected to be paid for the information.  On the one hand, in order to advise client as to whether the information was worthy, the team had to see the document.  On the other hand, the third party did not have confidence in letting Tony Chan’s team know either the name of the provider or the contents of the document.  There was some distrust on the part of the third party as to whether he would get paid.  Eventually, it was arranged through the defendant that the English part of team, Mr Mill and Mr McDonnell would be given the Document to consider.  When the Document was reviewed by Mr Mill, he advised client against paying the sum asked for, being HK$10 million.  The matter was then shelved.  This agreement was adhered to and Mr Midgely was not told about anything concerning the Document.  That was why Mr Midgely was confident to say that up to 17 May 2009, he did not know who was the provider of the Document. 

(3) In relation to a meeting in the evening of 17 May 2009 with Dr Siu, Mr Midgley said it was not on the topic about the Document.  As the meeting was conducted in Cantonese, his knowledge as to what was discussed was based on third party information.  As far as he was aware, the meeting was entirely to do with Dr Siu acting as a middleman in negotiation.  Dr Siu did not make it clear that he was the provider of the Document.  In fact, at some point in the evening on 17 May 2009, Mr Midgley was told by the defendant that Dr Siu was not the provider of the document.  Mr Midgley said that great pain was taken by the defendant not to let them know who was the provider of the Document.

(4) As to the telephone conversation between the defendant and Mr Midgley on 21 May 2009, he said that his concern at the time was to ensure that his client would not have to pay any fee for the permission to use the Document.  Then Mr Mill requested him to call the defendant to ask questions on the provenance of the Document.  That call was made quickly by mobile telephone inside his hotel room just before rushing to court.  There was thus no attendance note.

44.In cross‑examination, Mr Midgley was asked whether the whole incident could be one of miscommunication.  He agreed.  He was willing to say it could have been him or the defendant who had been mistaken.  However Mr Mill, who also heard the conversation, told him that he was in the right.  Mr Mill heard the questions he put to the defendant and the answer she gave.  Hence, he thought that he was not mistaken. Mr Midgley further said that he had high regard for the defendant.  As he analyzed, either it was a case of the defendant deliberately trying to hide the identity of the provider and therefore lied.  Alternatively, it was a case of the defendant making an honest mistake.  Knowing the defendant, Midgely took the view that it was an honest mistake on the part of the defendant.

(III) Discussion on evidence

45.It is important to note that the principle issue is not on what the defendant had uttered.  The dispute is on what was the question asked of her by Mr Mill through Mr Midgley.  The question was put to the defendant in English, the mother tongue of Mr Mill and Mr Midgley.  It was intentionally put by Mr Mill because he wanted information about the Document’s provenance for the imminent purpose of using the Document in court.  In fact, shortly after the subject telephone conversation, Mr Mill went to court and was asked about the provenance of the Document, which he explained that the Document came from the plaintiff.  Unless Mr Mill set out to mislead the court, he must have genuinely thought that the defendant had confirmed that she obtained the Document from the plaintiff. Being the person who posed the question in the first place, it is inherently probable that Mr Mill knew and remembered what he was asking.  The question was put by Mr Mill through the agency of Mr Midgley.  It must also be inherently probable that if Mr Midgley misunderstood him and put a wrong question to the defendant, Mr Mill would have immediately corrected him so that he could get the information he wanted.  Mr Midgley fairly conceded that it could be him that was mistaken but for Mr Mill’s vehement confirmation that he had asked the right question.  It is not only fair but logical.  Mr Midgley was not the person who formulated the question.  He was just a conduit.  He would not have as entrenched a recollection of the exact question as Mr Mill. In the absence of ulterior motive on the part of Mr Mill and Mr Midgley, it would have been inherently more probable that the defendant had either misheard or misunderstood the question put to her in a language that is not her mother tongue.

46.The defendant did not suggest that Mr Mill and Mr Midgley acted deliberately to give false information to the court. She said they were mistaken.  Yet, mistaken of what?  She was effectively suggesting that either: (i) Mr Mill was mistaken even as to the question that he himself posed; or (ii) Mr Mill put one question, Mr Midgley mistakenly relayed a different question to her, which was compounded by Mr Mill failing to correct Mr Midgley though he was next to Mr Midgley and listening to the conversation. 

47.In trying to resolve this issue, I also take into consideration the following unsatisfactory aspect of the defendant’s evidence:

(1) The defendant had given different versions of the question allegedly put to her by Mr Midgley and she gave different versions of her answer:

(i) In her email to Mr McDonnell on 28 May 2009[39], she said the question asked of her was: “Gilbert send the project to whom?” and her replied was: “He tried to sell it to Edmund Tsang”.  This version was different from her pleaded version[40].  It was also different from her oral evidence under cross‑examination[41].  The defendant wholly failed to provide any cogent explanation for the discrepancies[42].   

(ii) In her email dated 29 June 2009 to Mr McDonnell[43], she said she was very clear that the question put by Mr Midgley was: “Gilbert Leung sells the project to whom?” “Gilbert Leung gave the documents to whom?”  By setting out two versions in the email, it already indicated that the defendant could not have been sure about the exact wordings of the question.  She also introduced the word “sell” which was never her pleaded case.

(iii) She was cross‑examined extensively on the different versions she gave.  She then said that in fact, the word she heard was “sell”.  Her understanding of the question was to whom the proposal about the land was sold to[44].  When I sought clarification from her and asked her to give her best recollection of the question put to her in English, she reverted back to: “Gilbert Leung send the document, the proposal to whom”[45].  When pressed for an explanation as to why she mentioned earlier the word “sell” or “sold”, she said that at the time, the word she heard was “send” or “sell” which was similar to each other.  She was then in a factory and it was noisy.  For the first time, she introduced circumstances under which she could have misheard the question.  This is to be contrasted with her hitherto adamant stance of “it was not my mistake, it was their mistake”.  I find her explanation contrived.  She had clearly given different versions of the question put to her at different times which she was in vain to attempt to reconcile.

(2) In the course of her cross‑examination, the defendant mentioned that on 22 May 2009, she made a long distance call to Mr McDonnell pointing out that Mr Mill had wrongly mentioned the plaintiff’s name in court[46].  Later, she elaborated by saying that she became aware of Mr Mill’s mistaken statement to the court after she read the daily transcript in the evening of 21 May 2009[47].  She then said she alerted Mr Midgley about this on 21 or 22 May 2009[48].  She also told Mr McDonnell about the mistake on 22 May 2009. These alleged conversations with Mr Midgley and Mr McDonnell were never mentioned in any of her three witness statements or her two affirmations.  This allegation was never put to Mr Midgley by her counsel despite the fact that in Mr Midgley’s written response to the Law Society’s enquiry, he clearly stated that he only came to know about the “mistake” after receiving the plaintiff’s solicitors’ letter dated 26 May 2009[49].  More importantly, her allegation was flatly contradicted by the evidence of Mr McDonnell who was called as her witness.  Mr McDonnell said that the defendant did not tell him about the “mistake” until 28 May 2009[50].  I have no reason to doubt the veracity of Mr McDonnell’s evidence in this regard.  The evidence of Mr McDonnell was consistent with that of Mr Midgley whose evidence I also accept on this point.

(3) I am of the view that the defendant lied about telling Mr Midgley and Mr McDonnell about the “mistake” on 21 and/or 22 May 2009.  It is not difficult to see why the defendant had to lie on this point.  Since the defendant’s own evidence was that she was forwarded everyday’s court transcript for reading and she came to know about the “mistake” as early as 21 May 2009 (when she read the transcript of court proceedings for that day), a logical question must necessarily arise: why did she not raise it with the legal team until sometime after the plaintiff’s solicitors’ letter dated 26 May 2009?  As Mr McDonnell testified, the defendant is a clever and intelligent person.  The defendant must have appreciated that she only wrote an email to Mr McDonnell on 28 May 2009 mentioning for the first time about the “mistake”.  Hence the need to make up the evidence that she had made “oral” complaints to Mr McDonnell and Mr Midgley earlier on.  Unfortunately, her lie was exposed by the evidence of Mr McDonnell elicited in cross‑examination.

(4) I have previously set out §23 of the 2^nd Supplemental Witness Statement of the defendant.  As part of her oral evidence‑in‑chief, the defendant elaborated on why she said that Mr Midgley knew that Dr Siu was the provider of the Document[51].  She said that prior to attending the 17 May 2009 meeting, Dr Siu told her that there was an offer to settle the Probate Action.  The defendant told Mr Midgley about it.  The 17 May 2009 meeting was thus arranged. Mr Midgley asked who would attend the meeting and the defendant said that she and the “informant” would attend.  Mr Midgley also asked whether the settlement message came from the “informant” and the defendant answered affirmatively.  Then on 17 May 2009, she went with Dr Siu to Haldanes for the meeting.  Dr Siu exchanged name card with Mr Midgley.  Mr Midgley held Dr Siu’s name card in his hand and played with it for quite some time because it was rather long.  That was the reason why the defendant said that the “informant” who attended the meeting was the “informant” that conveyed the settlement message.  Her counsel then asked her why she said in §23 that Mr Midgley “was told Dr Siu was the source of the Document”.  The defendant then said that she told Mr Midgley about that when they finished the meeting and was leaving the conference room.  Mr Midgley walked behind her. He asked the defendant: “He was the informant?”  The defendant nodded, looked at Mr Midgley and smiled[52].

In cross‑examination, the defendant was referred to an attendance note prepared by Ms Lok in relation to the 17 May 2009 meeting[53].  Ms Lok produced her note upon a subpoena at the beginning of the trial.  The defendant said that Ms Lok’s record was not incorrect but it was insufficient.  She was then asked to list out all matters that were missed out.  The only omission she identified was that the note did not show Dr Siu and Tony Chan having some disputes in their conversation or that there were times when they were angry with each other[54].  I will set out the relevant parts of Ms Lok’s attendance note:

“1. Haldanes were recently approached in respect of an offer to settle the case. …

2. It was thereafter that client informed JNM by telephone that he was instructed to follow up through Esther (who originally been the messenger informing JNM of the offer), to ascertain if the offer was real. …

…

7:50 p.m. TC joined the meeting

5. JNM explained to TC the purpose of this meeting. To establish who is purportedly making to offer; to understand the terms and conditions of the offer; and thereafter, to establish that the agreement is lawful and appropriate.

8:00 p.m. Conference (TC, JNM, FL, Esther Chan, Mr Sidney Siu – who purports to represent a third party in these proceedings)

6. Purpose of tonight’s meeting explained. (see (5) above).

7. D1 insists on a record and Mr Siu agrees to it.

8. Mr Siu said the following:

‘Not to create any misunderstanding, the conference will be in Cantonese. Today, my position is to help both sides, as a middleman. Before I go to the substance, I explain this. Ms Chan is my good friend. I am assisting Ms Chan to do something. Ms Chan wants to provide some service to your side. She found an informant to prove that GL gives evidence based on some interest. She also can prove that Chinachem gave him cash to sell some properties (?) But there is personal safety concerned. The informant is still considering whether to give evidence, should he report to the police, etc.

Ms Chan proposed a service fee (including reimbursing other people). In principle, it is alright (but we don’t talk about the sum today). Since then, this matter was left in the air but did not materialize. I wonder if either your side or Chinachem – you are still seeking the above information, but I don’t know who disclosed these information to the press. So much service provided (even running to England), so I do not feel right.

I was in Beijing. To talk about settlement: seeing some people, making some arrangements. I am worried that what is talked about today will be in the press tomorrow. I reiterate that this is without prejudice and private and confidential. Please avoid this information be leaked to the press and used. I act fairly, not to make any threat against any side. I am scared that…someone told me not to sign anything today. The service fee…not to be disclosed in the press is important. Even if it fell through we can be friends. 5B – maximum from the other side, 5% or 4% be deducted – you shouldn’t ask who is pocketing the fee for the middlemen.’

9. Esther: I told JM how to deal with this matter (which is very sensitive). JM said he would inform IM and JNM and discuss. JNM called me in a morning. I told him 5B, however, 5% service charge to be deducted from TC’s side. In addition, 50% of the 5 is to purchase TC’s company shares. The other 5B – TC can use a very favourable price to buy the properties. JNM said he would talk with TC. I warned JNM not to tell anything except TC, because we don’t want anything that happened to happen again. Several days later, JNM told me that TC accepts 5B, but not any deduction. Any such fee would be topped-up. JNM said it would be only TC and JNM who know about this, not even IM knew. I repeatedly emphasize that IM should concentrate on the litigation.

10. Esther: on Thursday I received a call from JNM, that he called WG and told WG TC may accept 5B. Those in Beijing was very angry, because once this was known…

11. TC: no use to talk about these. A lot of people told me that they can initiate talk … I want to settle. Your offer is very close to my last acceptable line … I now listen to you. Esther’s theory is of no interest to me. In fact, NW gave me the will. I consider the other side as a charity; I will take that into consideration. If you are willing to offer, Okay, if not, let’s leave. I was having BBQ, and you drag me out… Cut it short. JNM told me ‘you accept this?’ I said if you have a cheque on the table, I can make a decision within minutes. No use to talk about these Beijing people, etc. I asked JNM ‘how much’, and ‘when’. If I don’t need to go to court tomorrow at 10:00 am, that’s it. Card or your theory, no interest to me.

12. Mr Siu: (agreeing with TC and handed out)

13. TC: reassured he has no idea who gave the information out to Apple Daily.

14. Mr Siu: let’s cut the crap. The oldies always like the younger ones, no problem with that (men or women). Those are irrelevant. She liked to give the money to his bf, not the siblings, no one can complain. All I want is to have the service charge.

15. JNM: The position is very, very simple. (1) 5 billion in total, no deductions. Whoever is paying whoever is none of our business. (2) We do not need to know who is paying it. (3) We need to know when is it going to be paid. That’s it. With great respect, we don’t need to know any theory, history, but “is it paid”, “when’s it paid, and “by whom”.

16. Mr Siu: The other side things that the service charge should be charged against your side. 5B, including the commission, I say 2%.

17. TC: how long can it be done?

18. Mr Siu: I can get back to you in 10 days, with a name. 3B in guarantee, to be paid (by this rich man) in several months…

19. Esther: they may pay 2B on the table, then shake the hand with TC and guarantee to pay the 3B balance when the whole thing concludes…

23. Esther: The problem is now it is not one draft 5B, but 2B as deposit + 3B guarantee (to shake the hand of a big tycoon).

24. JNM: I accept that we need to be comfortable with this. In the end it’s got to go with a letter in.

25. Esther: they have one more point is that TC’s side need to pay the 2% commission. I just pass the message.

26. JNM: go to the other side and say the net bottom is 5B. We are not paying commissions. We have no agent. Go and find it from whoever employing you.

27. Esther: they initially agreed 525, but then JNM called and said 5B, so they said 5B. Actually, after you called, you said 5B net, no deduction, all cash. I reported to the third party (the same). They decided it’s 5.25B., The 0.25 would be commission. They all agreed. However, you called the other side’s solicitors to accept 5B…

28. Mr Siu: don’t argue about this anymore.

29. TC: If can arrange a meeting within 10 days, then proceed with the negotiation, then communication through the law firms.

8:50 p.m.

30. JNM: will leave it and see if it works. Will go on fighting this case.” (emphasis added)

It can be seen that during the entire conversation, not only did Dr Siu not mention that he was the “informant”. He even referred to somebody else as the “informant” in relation to the information concerning Gilbert Leung. It is difficult to understand why the defendant was so forthcoming in revealing to Mr Midgley Dr Siu’s identity as the “informant” when Dr Siu was at pain of hiding his role as the “informant”. The attendance notes of Ms Lok were consistent with Mr Midgley’s evidence that he was not aware that Dr Siu was the “informant” who provided the Document. On any fair reading of §23 of the defendant’s 2^nd Supplemental Witness Statement, it seemed to suggest that Mr Midgley was told in the course of the 17 May 2009 meeting that Dr Siu was the “informant”. That would be contradicted by Ms Lok’s attendance note. When the defendant made the 2^nd Supplemental Witness Statement, she did not have sight of Ms Lok’s attendance note[55]. Mr Yu suggested that the defendant’s oral evidence of having told Mr Midgley of Mr Siu’s identify as the “informant” before and after the meeting was a recent fabrication. In an attempt to refute that suggestion, the defendant maintained that Ms Lok’s attendance notes positively proved that she did not lie[56]. The defendant pointed to §14 of the notes which mentioned Dr Siu saying that all he wanted was to get his service charge. She argued that this proved that Mr Siu was known to all as the “informant”. I cannot agree. Given the proper context of the entire note, Dr Siu was clearly referring in §14 to “service charge” for pulling together a settlement. As a matter of fact, the “service fee” mentioned in §8, which related to the provision of information to attack Gilbert Leung’s credibility, was clearly different and distinct from the “service fee”/“service charge”/ “commission” talked about in subsequent stages of the meeting. After Mr Siu’s opening statement of complaint that the defendant had not been paid the service fee she proposed for providing the Gilbert Leung information, the conference turned and focused on the settlement proposal. Subsequent references to “service fee”/“service charge”/ “commission” all related to procurement of a settlement of the Probate Action. They were expressed in form of percentage of 5 billion, the settlement sum.

(5) The defendant was then cross‑examined on an affirmation she filed on 31 May 2012[57] in which she said about the 17 May 2009 meeting as follow:

“12. In any event, latest by Sunday 17 May 2009, Mr Tony Chan’s legal team in Hong Kong should have known that the Investment Documents had been provided by Dr Siu. On that day in the afternoon, a meeting was held in the offices of Haldanes which was attended by Mr Tony Chan, Mr Jonathan Midgley, Dr Siu, Ms Frances Lok and myself. The initial purpose of the meeting was to discuss the terms on which Mr Tony Chan’s legal team may make use of the Investment Documents and related information in the Probate Action, and Dr Siu made it clear that he was the provider of the Investment Documents. So the identity of the provider of the Investment Documents were not a secrecy with the legal team of Mr Tony Chan, and it made no sense for me to mislead them subsequently by providing false information about the identity of the provider.” (emphasis added)

First of all, what the defendant said in her said affirmation was contrary to her oral testimony. Under cross‑examination, she said that Dr Siu did not say at the meeting that he was in fact the “informant”[58]. She also agreed that what Dr Siu said at the time was as recorded in Ms Lok’s attendance note §8[59]. It is clear from that paragraph that Dr Siu was referring to someone else as the “informant”. Secondly, her affirmation was also contradicted by the attendance note which showed that there was in fact no discussion about the terms upon which the Document could be used[60]. Thirdly, as I had mentioned earlier, the latest version put forward by the defendant, that Mr Midgley was told before and after the said meeting was never mentioned. One would have thought that if it indeed happened as testified by the defendant, she would at least have mentioned it in §12 of this affirmation in which she was at pain to point out that Dr Siu’s identity as the “informant” must have been known to the Hong Kong legal team by 17 May 2009.

Despite so, the defendant obstinately refused to admit that §12 of her affirmation was incorrect. Instead, she said that although Dr Siu did not say in words who the “informant” was, nevertheless, he did say “I would pursue my fee” and that proved that he was the “informant”. The defendant was thus harping back to §14 of Ms Lok’s attendance note which was clearly a reference to a distinctly separate “service charge” for brokering a settlement. I find the defendant evasive.

48.For the above reasons, I am not impressed by the defendant.  I have no difficulties preferring the evidence of Mr Midgley whom I find to be an honest and reliable witness.  He gave his evidence cogently and was fair.  His evidence was not seriously challenged in cross‑examination.  Mr Midgley confirmed the correctness of the written response of Mr Mill which I also accept as reliable.  I find that during the telephone conversation on 21 May 2009, the question put by Mr Mill through Mr Midgley to the defendant was: “where had you got the Document from?”  To this question, the defendant answered: “Edmund Tsang”. I also accept the evidence of Mr Midgley that Mr Mill also asked through him whether the name Edmund Tsang could be revealed to the court. I find that the defendant gave an affirmative answer to this question.

49.In preferring the evidence of Mr Midgley, I find that as of 21 May 2009, he did not know that Dr Siu was the provider of the Document.  In fact, Mr Midgley’s evidence was that on 17 May 2009, he was positively told by the defendant that Dr Siu was not the “informant”[61].  This aspect of Mr Midgley’s evidence was not challenged in cross‑examination.

50.As for the knowledge of Mr Mill, the defendant called Mr McDonnell as her witness.  In his witness statement (which was adopted as his evidence‑in‑chief), Mr McDonnell said as follow:

“29. Esther told me that these documents had been given to her by Dr Sidney Siu Yim-kwan (‘Dr Siu’) who was the person who had been referred to in her discussions with Haldanes as the ‘source’. She gave me a glossy programme for a charity function which had been organized by Dr Siu and supported by (among others) a company belonging to Gilbert Leung called ‘Memorial Park Hong Kong Ltd.’: the programme included photographs of Dr Siu himself and of Gilbert Leung and other supporters, together with a half-page advertisement by Memorial Park Hong Kong.

…

31. I gave Ian Mill QC copies of the Chinese document and the two Land Registry Searches which Gilbert Leung had made on 3 May 2007. I also gave him the programme for Dr Siu’s charity function and told him that Dr Siu was the ‘source’. I also explained to him the information which Esther had given me about the background to the Statement and Statutory Declaration dated 15 May 2007 and what Dr Siu had told her about how they had come to be made and what Esther had told me about Dr Siu.

…

34. I sent those Search results to Ian Mill QC by e-mail on 23 April 2009 together with a copy of another questionable transaction between Gilbert Leung and Chinachem and the first installment of Esther’s Notes on the Prison Letters and a Working Note of my own which set out the chronology of the land transactions and also noted the full name of Dr Siu. My email said I would talk him through the other Attachments when he was ready and I am sure that occurred.

35. Perhaps the most important detail about that email for present purposes is that it was copied to Esther which will have confirmed to her that Ian Mill QC knew Dr Siu’s identity, as was intended.”

51.In cross‑examination, Mr McDonnell said that he did not know from where Dr Siu obtained a copy of the Document.  He was not interested in that question and he never asked the defendant.  Neither did Mr Mill ask him where Dr Siu got the Document from[62].  Mr McDonnell was however sure that when he gave a copy of the Document to Mr Mill in London in March 2009, he did tell Mr Mill the source of the Document, ie Dr Siu[63].  He accepted however that he could not recall any discussion between Mr Mill and him as to who provided the Document to Dr Siu.

52.Mr Mill had not come to this court to refute the evidence of Mr McDonnell.  On balance of probability, I accept Mr McDonnell’s evidence that he had mentioned to Mr Mill in March 2009 that Dr Siu was “the source” of the Document.  That is however not inconsistent with Mr Midgley’s lack of knowledge because indisputably there was some sort of a Chinese Wall erected in relation to the Document between the English team and the Hong Kong team.  Neither did it mean that Mr Mill could not have asked the question on 21 May 2009 as he did.  As counsel for the defendant put to Mr Midgley in cross‑examination, the Probate Action was a very heavy one and it was impossible for every member of the legal team to know everything.  Mr Mill might not have full recollection of all information given to him some two months ago.  Furthermore, Dr Siu (even if known to Mr Mill as the “source” of the Document) might just have been an intermediary source.  When the use of the Document became imminent on 21 May 2009, it was perfectly plausible for Mr Mill to wish to ascertain directly from the defendant the ultimate source of the Document, ie its full provenance.  I do not find that the evidence of Mr McDonnell was necessarily inconsistent with the aforesaid finding which I made basing primarily on inherent probability and my rejection of the defendant’s credibility. 

(IV) Conclusion on this issue

53.I therefore find that in responding to the question put by Mr Mill to her through Mr Midgley, the defendant did utter a statement that she had obtained the Document from the plaintiff.

IS THE STATEMENT DEFAMATORY?

(I) Plaintiff’s pleaded case on meaning

54.The pleaded defamatory meanings in §8(a) to (c) were not pleaded as the ordinary and natural meanings of the words uttered by the defendant.  In fact, the plaintiff’s case is based on true innuendo.  It has been pleaded that:

“By way of innuendo, the defendant’s words meant and were understood to mean that:

(a) the plaintiff had betrayed a friend and a business associate, Gilbert Leung, by covertly giving Tony Chan or his legal team one of Gilbert Leung’s confidential business documents so that it could be used to discredit Gilbert Leung in a court of law;

(b) the plaintiff had secretly and covertly sought to assist Tony Chan and his unmeritorious challenge to Nina Kung’s will in order to try to get his hands on her fortune; and

(c) that the plaintiff had acted as set out above in order to obtain a personal advantage, possibly money from Tony Chan.”

55.In an action on slander, the plaintiff has the burden of proving publication.  The learned author of Gatley on Libel and Slander (12^th edn) wrote at §6.21:

“Proof of publication. The fundamental principle is that the matter must be communicated to a third party in such a manner as to be capable of conveying the defamatory imputation about the claimant. Where a publication is innocent on its face but extrinsic facts exist that make the publication defamatory, the claimant must plead and prove that the publication was read by persons who had knowledge of the facts from which the defamatory meaning could be drawn.” (my emphasis)

Similarly, in §32.28 when the learned author dealt with the issue of how to establish a claimant’s case on true innuendo, he said that the claimant must prove that the relevant facts and circumstances were known to those persons to whom the words were published.  This is also reflected in §3.22 which reads:

“Knowledge of extrinsic facts: (1) relied on by claimant. Where extrinsic facts or circumstances are relied on as showing that the words would not be understood in their primary meaning, such facts and circumstances must have been within the knowledge of the persons to whom the words were published, for they could not have been influenced in their understanding by facts or circumstances of which they were unaware.” (my emphasis)

Also of relevance is §26.23 on how a case based on true innuendo should be pleaded:

“Pleading innuendoes. Where the claimant relies on an innuendo meaning, he must plead particulars of the facts and matters on which he relies in support of that sense. These facts or matters will generally incorporate either a special definition of the words known only to a limited class of persons (such as slang or technical terms) or facts extrinsic to the libel which, if known about, affect the way the words complained of are understood. In either case, the claimant must identify the person or persons to whom the words were published and who are alleged to have had knowledge of the special meaning or the extrinsic facts. In default of compliance with the requirements for pleading innuendo meanings, the pleaded meaning may be struck out.” (my emphasis)

56.One would have thought that in pleading the three innuendo meanings under §8 of the Amended Statement of Claim, the plaintiff would be putting forward those meanings which would be understood by those persons to whom the slander was uttered.  One would also have thought that the “Particulars of Innuendo” pleaded in §8 would set out those extrinsic facts known to those persons to whom the slander was uttered.  That is however not the case.  I would set out the entire “Particulars of Innuendo” pleaded in §8 of the Amended Statement of Claim:

“(1) The plaintiff and Gilbert Leung were friends and close business associates, who had done business together and met each other socially. They were known to be such within their circle of friends.

(2) The basis of the cross‑examination of Gilbert Leung, was that Gilbert Leung had discussed the business proposal in the Document with the plaintiff.

(3) Further, at the trial of the Probate Action, it was put to Gilbert Leung, and he did not dispute, that he and the plaintiff had discussed the business proposal set out in the Document with the plaintiff. Although it was incorrect that this particular discussion had taken place. Gilbert Leung’s evidence rightly suggested and made it publicly known that he and the plaintiff were business associates. It therefore would have been readily understood by the public reading reports of the case that the plaintiff had betrayed his business associate by providing a confidential document to Tony Chan’s team.

(4) The Probate Action received a huge amount of publicity in Hong Kong. On the basis of reports of the case, the public perception of Tony Chan was that of an adventurer who had preyed upon Ms Nina Kung, a rich widow, in order to get at her money and who was willing to disclose intimate information about her, and his relationship with her, for personal advantage. During the trial, Tony Chan, a married man with two children, made very detailed disclosures about his sexual relationship with Ms Nina Kung, disclosures which were distasteful to the public. It was also disclosed how he had tried to worm his way to her affections with false promises that he could find her missing husband and other underhanded tactics. On 20 February 2010 Eastweek magazine published an article about the Probate Action headed, ‘The Most Despicable Man of the Century’, which heading shows Tony Chan’s notoriety in Hong Kong. Tony Chan ultimately lost his challenge to the 2002 will, the Judge finding that the 2006 will relied on by Tony Chan was a forgery, thereby suggesting that Tony Chan, as well as being an unscrupulous adventurer was also a criminal. He was arrested by the Hong Kong Police on 3 February on suspicion of forgery.

(5) In the light of Tony Chan’s notoriety, the allegation that the plaintiff was the person who had supplied Tony Chan or his team with the Document would have been readily understood as meaning that the plaintiff was in association with Tony Chan and his unmeritorious challenge to Nina Kung’s will. Given the huge amounts of money that were at stake in the Probate Action, the ready inference to be drawn from the allegation was that the plaintiff had acted in this way for some kind of personal advantage, very likely for money.” (my emphasis)

57.It is quite plain that the pleader was not directing his mind to pleading those extraneous facts known to Mr Mill and Mr Midgley (to whom the defendant uttered the allegedly defamatory words) which would cause them to understand those words in the three innuendo meanings.  Another problem with the “Particulars of Innuendo” is that it included a lot of incidents which happened after the publication of the alleged slander by the defendant to Mr Miller and Mr Midgley.  The learned author of Gatley, at §3.21 said:

“The claimant cannot rely on facts occurring or becoming known after publication to support a legal innuendo, for the cause of action, if any, is complete upon publication. In Grappelli v Derek Block (Holdings) Ltd.[64]the defendants, manager of the plaintiff, a musician, booked an appearance for him on December 4, without authority and had to cancel it. They issued a false statement, without his knowledge, to the effect that he was ill. The claimant then played another engagement on the same date. The claimant claimed damages on the basis that the statement was to be understood, by way of innuendo, as meaning that he had knowingly given a false reason for cancelling the engagement. It was held that the initial non-defamatory statement could not be converted into a defamatory one by reason of facts later coming into existence.”

58.In the course of the Opening address of the plaintiff, I sought clarification from leading counsel for the plaintiff as to the exact case that is being run by the plaintiff.  Mr Yu submitted as follows:

(1) in relation to meaning (a), the plaintiff’s case is on true innuendo;

(2) in relation to meanings (b) and (c), the plaintiff will argue that the defendant’s words did bear meanings (b) and (c) as their “ordinary and natural meanings”; and

(3) alternatively, meanings (b) and (c) can be derived by way of innuendo.

59.Mr Yu clarified that in relation to the slander, the recipients were merely Mr Mill and Mr Midgley.  I therefore pointed out that the “Particulars of Innuendos” were not in line with such stance as they were not focused on the knowledge of Mr Mill and Mr Midgley and invited Mr Yu to consider the point.  Subsequently, a proposed Re‑Amended Statement of Claim was produced.  Mr Lam, counsel for the defendant did not oppose to the re‑amendments.  Opportunity had been given to the plaintiff and in the absence of opposition, I allowed the re‑amendments.

60.I must however say, with respect, that the re-amendments served to obfuscate rather than to elucidate.  The new §8 now reads:

“8. The defendant’s answer, ‘Edmund Tsang’, as set out in paragraph 7 above was false and defamatory of the plaintiff. In their natural and ordinary meaning (in the entire context upon which they were uttered as set out in paragraphs 4 to 7 above), the defendant’s answer meant and were understood to mean that:

(a) the plaintiff had betrayed a friend and a business associate, Gilbert Leung, by covertly giving Tony Chan or his legal team one of Gilbert Leung’s confidential business documents so that it could be used to discredit Gilbert Leung in a court of law;

(b) the plaintiff had secretly and covertly sought to assist Tony Chan and his unmeritorious challenge to Nina Kung’s will in order to try to get his hands on her fortune; and

(c) that the plaintiff had acted as set out above in order to obtain a personal advantage, possibly money from Tony Chan.”

61.Firstly, these three meanings were the same innuendo meanings previously relied upon.  Unlike what Mr Yu had told me in court, the plaintiff is now seeking to argue that even meaning (a) is derivable as “ordinary and natural meaning”.

62.Secondly, the three “ordinary and natural meanings” were said to have derived from the “entire context upon which they were uttered as set out in §§4 to 7 above”.  Context and circumstances of publication is no doubt relevant to the issue of interpretation.  Yet with respect, this method of pleading failed to distinguish between “context and circumstances of publication” which are within general knowledge as opposed to those which required support of extrinsic facts passing beyond general knowledge.  Lord Morris in Jones v Skelton[65] explained as follows:

“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be part of the ordinary and natural meaning. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge, not fettered by any strict legal rules of construction would draw from the words.” (my emphasis)

63.In Gatley, para 3.20, the difference between true and false innuendoes is explained:

“Innuendoes, ‘true’ and ‘false’.  Hitherto we have been concerned with the ordinary meaning of words, though including within that cases where a defamatory imputation is conveyed by implication.  Where, however, the defamatory meaning only arises because of extrinsic facts which are known to the recipients there is said to be an “innuendo”.  This has two principal consequences.  First, the claimant must not only identify in his particulars of claim the defamatory meaning which he contends the words convey but also identify the relevant extrinsic facts and prove that those facts were known to at least one of the persons to whom the words were published.  Secondly, the meaning resulting from those facts gives rise to a cause of action separate from that (if any) arising from the words in their ordinary and natural meaning because it is an extended meaning not present in the words themselves…

A ‘true’ or ‘legal’ innuendo in this sense only exists where the extended meaning arises from facts passing beyond general knowledge.  If the defamatory meaning arises indirectly by inference or implication from the word published without the aid of any extrinsic facts there is said to be a ‘false’ or ‘popular’ innuendo and this does not give rise to a separate cause of action.”  (my emphasis)

64.Hence, in explaining what amounts to “extrinsic facts”, the learned author said at para 3.21 as follows:

“True innuendo: extrinsic facts. Such facts have also been referred to as ‘added’, ‘extraneous’ or ‘special’ facts, or ‘something outside the words’. They may, for instances, be the circumstances of publication, any accompanying gestures or expression or tone of voice, a slang or technical meaning or the meaning of a foreign language, or some additional fact which would allow those who knew it to read a defamatory meaning into the words published … The key point is that the matter is not merely one of general knowledge…” (my emphasis)

At para 3.16, the learned author said:

“… In case of words defamatory in their ordinary sense, so long as it is proved that reasonable people would have so understood them. It is true that the claimant may, by pleading an innuendo, show that the words are defamatory by reason of some special fact outside the statement itself and known to those to whom it was published, and that evidence is admissible as to the sense which a reasonable person with that knowledge would have given to the words…” (my emphasis)

65.This is to be contrasted with the very definition of “ordinary and natural meaning” of words as explained in para 3.17:

“…Words are normally construed in their natural and ordinary meaning, ie in the meaning in which reasonable people of ordinary intelligence, with ordinary person’s general knowledge and experience of worldly affairs, would likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader? The natural and ordinary meaning may also include implications or inferences. Where a party contends that the words should not be construed in their natural and ordinary meaning (as where the claimant pleads an innuendo based on extrinsic fact which makes apparently innocent words defamatory or the defendant claims that the circumstances in which the words were used prevented them being understood in a defamatory sense) the burden of proof lies on him.” (my emphasis)

66.In my judgment, the attempt to argue the same three defamatory meanings as “ordinary and natural meanings in the context as set out in §§4 to 7 above” is wholly misconceived.  To further demonstrate that, I have to include the Re‑Amended version of §§4 to 7 as an Annexure I to this judgment.  §§4 and 4A referred to the Probate trial and Gilbert Leung’s evidence given in at the trial.  Although the Probate trial received huge amount of publicity, I cannot accept that what were reported about the trial and what happened thereat (which may differ from media to media) had in any way become “an ordinary person’s general knowledge and experience of worldly affairs”.  The plea of “public perception” in §4 is a bare assertion.  There is no reliable evidence as to what was the general public perception about Tony Chan.  In any event, different persons may have different opinions as to whether the disclosure of his relationship with Ms Nina Kung was distasteful or not.  Some people may indeed find it distasteful but I cannot treat their opinion as “an ordinary person’s general knowledge and experience of worldly affairs”.  Other people may think that if what Tony Chan said was true, the truth should be ventilated in the court proceedings.  Paragraph 5 referred to an incident during the trial after the subject slander was published to Mr Midgley and Mr Mill.  I cannot see how it constitutes part of the context of publication.  In any event, they are specific facts that I cannot treat as within “an ordinary person’s general knowledge and experience of worldly affairs”.  Paragraphs 6 and 7 again clearly relate to specific knowledge of facts known to Mr Midgley and Mr Mill.  They can only be relevant to the case of true innuendo.

67.The absurdity of the argument can also be seen from examining the three pleaded defamatory meanings.  As to meaning 8(a), central to the imputation of “betrayal” is the knowledge that the plaintiff and Gilbert Leung were friends and business associates.  Unless I find that it is part of an ordinary person’s general knowledge that the plaintiff and Gilbert Leung were friends and business associates, I cannot arrive at an ordinary and natural meaning of “betrayal”.  There is simply no basis for me to so find.  Only people around the circle of the plaintiff and Gilbert Leung would know about their relationship.  That is an extrinsic fact relevant only to true innuendo.  As to meaning 8(b), I cannot see how on ordinary person would likely understand the simple question and answer (“Q&A”) between the defendant and Mr Midgley as embodying the imputation of “secretly and covertly assisting Tony Chan” and “assisting Tony Chan’s unmeritorious case”.  This meaning can only be derived by someone with specific knowledge as to how the Document became available to Tony Chan’s legal team and specific knowledge as to the merits (or the lack thereof) of Tony Chan’s case in the Probate Action.  As for meaning 8(c), again only persons with special knowledge as to how the Document became available to Tony Chan’s legal team would be able to understand, from the simple Q&A between the defendant and Mr Midgley that “remuneration” or “personal advantage” was involved in the provision of the Document. 

68.It can be seen that Mr Yu’s attempt to build a case on “ordinary and natural meanings” of the statement uttered by the defendant is wholly devoid of merits. The plaintiff case has been and remains as one based on true innuendo.

(II) True Innuendo

(a) Paragraph 8A(a) meaning

69.The relevant “Facts and Matters In Support of Innuendo” are under §8A(1) to (3). Sub‑paragraph (3) pleaded that: “It therefore would have been readily understood by the public reading reports of the case that the plaintiff had betrayed his business associate by providing a confidential document to Tony Chan’s team”.  It was not pleaded that Mr Midgley or Mr Mill would understand the Q&A in that way. 

70.In my view, the sting is in the imputation of “betrayal” which connotes disloyalty.  Mr Midgley and/or Mr Mill would not likely understand the Q&A as suggesting disloyalty on the part of the plaintiff unless they had knowledge of a friendship or close business association between Gilbert Leung and the plaintiff which could gave rise to some sense of loyalty between them.  The only evidence about their knowledge came from the cross‑examination of Mr McDonnell.  As for Mr Mill, Mr McDonnell only told him that “every time when Gilbert Leung received an investment proposal, he would let Edmund Tsang read it first.  Normally, from what I saw then, Edmund Tsang would invest on those projects”[66].  As for the Mr Midgley, he was not asked about his knowledge in his evidence.  The only evidence is that Mr McDonnell told Mr Midgley the same thing[67].  Based on this evidence, I do not find that Mr Midgley and/or Mr Mill knew that Gilbert Leung and the plaintiff were “friends”. Neither do I find that they knew of the existence of a kind of business association (eg partnership, joint venture or cooperation) which gave rise to an expectation on the part of Gilbert Leung of loyalty from the plaintiff.  If any notion of loyalty was involved, it would likely be owed from Gilbert Leung toward the plaintiff. After all, the plaintiff was the rich investor and Gilbert Leung was a deal‑broker.

71.In the circumstances, I do not find that the Q&A would likely be understood by Mr Midgley or Mr Mill as carrying an imputation that the plaintiff was acting in betrayal. 

(b) Paragraph 8A(b) meaning

72.In my view, the sting lies in the imputation that the plaintiff was helping Tony Chan in his unmeritorious case in the Probate Action.  The words “secretly and covertly” add nothing.  For instance, it will not be defamatory to say that I am secretly helping a rightful claimant in his court case.  No right‑thinking member of society would likely think lower of me.

73.The question thus becomes: did Mr Midgley and Mr Mill know that Tony Chan had an unmeritorious case such that they would likely understand the Q&A as meaning that the plaintiff was helping Tony Chan in his unmeritorious case? The answer is “No”.  There is not a thread of evidence that Mr Midgley or Mr Mill knew (or even believed) that their client had an unmeritorious case.

74.Paragraph 8A(4) purports to provide the factual basis for this innuendo meaning.  It is full of problems.  First of all, the reference to the 20 February 2010 Eastweek Magazine article is wholly irrelevant and impermissible.  It came into existence well after the publication of the slander.  Extrinsic facts to establish an innuendo meaning must have existed as at the time of publication.  The same applies to Tony Chan’s subsequent defeat in the Probate Action; the findings of Lam J in the Probate Action; and Tony Chan’s eventual arrest by the police on suspicion of forgery.  As to the rest of §8A(4), I repeat what I said in §66 above.  Mr Midgley and Mr Mill would have personal knowledge as to Tony Chan’s version of true facts.  They would have formed their own views about the merits of their client’s case.  There is no evidential basis to suggest that Mr Midgley or Mr Mill knew (or even believed) that their client had an unmeritorious case.  There is no evidence that they shared the alleged public perception of Tony Chan created in the media reports.  At most, it can be said that Mr Midgley and Mr Mill were aware that the image of their client had been badly portrayed by the media.

75.In the circumstances, I cannot find any fact known to Mr Midgley or Mr Mill (as at the time of the publication) such that they would likely understand the Q&A as meaning that the plaintiff was helping Tony Chan in pursuing an unmeritorious case in the Probate Action. 

(c)Paragraph 8A(c) meaning

76.This meaning is expressed to be built upon the imputations of “betrayal” and “helping Tony Chan in pursuing an unmeritorious case”.  It further suggested a mercenary motive in so doing.  Since I have rejected the §§8A(a) and 8A(b) meanings,  this suggested innuendo meaning also fails.

77.I have also considered a possible alternative on the basis that Mr Midgley and Mr Mill knew that in providing the Document for use in the cross‑examination of Gilbert Leung, the “informant” had asked to be remunerated by a substantial sum.  Hence, with this knowledge, how would they have likely understood the Q&A?  In my view, even with this knowledge, Mr Midgley and Mr Mill would not understand the Q&A in a defamatory sense.  They would simply have understood the Q&A as a plain statement that the plaintiff asked to be substantially remunerated for providing this weapon for the cross‑examination of Gilbert Leung.

QUALIFIED PRIVILEGE

78.Since I find against the plaintiff’s case on the innuendo meanings, I find that the defendant did not publish the alleged slander.  The plaintiff’s case based on this cause of action fails also on this ground.  It is thus not necessary for me to go into detail discussions on the alternative defence of qualified privilege relied on by Mr Lam.  Yet for the sake of completeness, if I had to consider the defence of qualified privilege, I would have ruled against it.  I refer to my discussions on evidence and findings of fact in §§38 to 53 above.  I also find that the defendant was aware of the question put to her by Mr Midgley over the phone.  When she uttered the name “Edmund Tsang” in answer to the question, she knew her answer was false.  Knowledge of falsity of one’s statement but nonetheless goes ahead to publish that untrue statement constitutes malice that destroys a defence of qualified privilege.

MALICIOUS FALSEHOOD

79.This is an alternative cause of action relied on by the plaintiff.  I enter into discussions on this alternative cause of action only on the assumption that my conclusion on “Absolute Privilege” is found to be wrong on appeal.  In the Re‑Amended Statement of Claim[68], the pleader referred back to the “ordinary and natural meanings” set out in §8.  I have already ruled against the alleged “ordinary and natural meanings” introduced by Mr Yu’s amendments.  However, I find that the Q&A bore the ordinary and natural meaning that “the defendant obtained the Document from the plaintiff”.  The Q&A in this meaning was indisputably false.  I had also found that the defendant knew that such a statement would be false.  Knowledge of falsity is malice.  Malicious falsehood is however not actionable per se.  Unless a case falls within the provisions of section 24 of the Defamation Ordinance, a plaintiff will have to prove special damage arising out of the publication of the false words.  Section 24 reads:

“Slander of title, etc

(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage –

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

80.The words were not published in writing or other permanent form, hence section 24(1)(a) does not apply.  In my judgment, section 24(1)(b) does not apply either.  It is not in dispute that the phrase “calculated to cause pecuniary damage” in section 24 meant “likely to cause pecuniary damage”.  I find that the simple Q&A in the aforesaid ordinary and natural meaning, though false, was not likely to cause pecuniary damage to the plaintiff in respect of his office, profession, calling, trade or business.  It is necessary for the plaintiff to allege and prove special damage.  It is apparent from the plea in §11(d) of the Re‑Amended Statement of Claim that the plaintiff incurred various expenses because of “the allegation made publicly in open Court” which was widely reported in the media such that the plaintiff felt obliged to correct the record himself.  In other words, the plaintiff’s case is not that the slander published by the defendant to Mr Midgley/Mr Mill directly caused any pecuniary loss.  It was the republications through the open court proceedings and the subsequent media reports of the court proceedings that gave rise to incurrence of expenses.  It is of course the plaintiff’s case that the defendant, as originator of the statement, is responsible for loss and damage caused by the republications.  This gives rise to another interesting question of law.

REPUBLICATION

81.The plaintiff pleaded that[69]:

“(a) By her response to Mr Midgley’s question whether the plaintiff’s name could be revealed in Court…the defendant expressly authorized Mr Mill, through Mr Midgley, to identify the plaintiff publicly in open court as the person who had provided the Document to Tony Chan’s legal team. It was also a natural and foreseeable consequence of her answers to Mr Midgley that Mr Mill would identify the plaintiff to the Court as the provider of the Document. It was a further foreseeable result of the defendant’s words to Mr Midgley that that which Mr Mill said, upon the defendant’s authorization, would be widely and prominently reported in the press.

(b) As a result of the reporting of the allegations complained of, the plaintiff was widely regarded as a traitor or a back-stabber …etc. The plaintiff was deeply embarrassed and disturbed by these assaults on his good character…

…

(d) The defendant has not corrected the allegation made publicly in open Court, for which she is responsible. Shortly after the allegation was published, the plaintiff was obliged to correct the record himself by issuing press releases in 5 major newspapers in Hong Kong on 2 separate days, and also himself investigate who was the provider of the false information. The costs and expenses incurred the plaintiff are about HK$5 million…” (my emphasis)

82.The plaintiff’s case is based on the principles expounded in Slipper v BBC [1991] 1 QB 283 and McManus v Beckham [2002] 1 WLR 2982.  It is obvious from the above plea that the loss and damage suffered by the plaintiff arose because the exchanges between Mr Mill and Lam J in open court were widely reported in the local media.  It is not the plaintiff’s case that even without the said exchanges in open court, the media would still come to know of the slander and/or malicious falsehood[70] published by the defendant to Mr Midgley and/or Mr Mill.  What Mr Mill said in open court was indisputably protected by absolute privilege.  Fair and accurate reports of court proceedings were also protected by absolute privilege[71].  A curious legal question then arose: can a plaintiff hold the defendant responsible for damages arising out of the republication in open court and the further republications by the media reporting on what happened in open court?

83.This point was not alluded to in both the opening addresses of Mr Yu and Mr Lam. In the course of Mr Yu’s opening address, I pointed out the following passage from Gatley §6.58 and invited counsel to make submissions:

“Privileged occasion. If D, without malice, makes a statement to X on a privileged occasion and X repeats the statement to Y, again on a privileged occasion, D has a defence in respect of both the original publication and the republication. The same is true where X is actuated by malice and therefore loses the protection of the privilege, for it is necessary to consider the state of mind of each defendant separately. If X is unprotected because he repeats the statement on an occasion which is not privileged (e.g. because he republishes it more widely than is permissible) D should still be protected unless he requested the manner or scope of the publication by X. If the statement by D to X was not on a privileged occasion but the republication by X was, D is obviously liable in respect of the publication to X, but what is his position in respect of the republication by X? The difficulty is that if D is to be treated as a publisher on the occasion of the republication there is simply no wrong on that occasion. There is less difficulty where D is actuated by malice because then when X republishes he has the protection of privilege but D does not.” (my emphasis)

84.It can be seen that the learned author was referring to situations of “qualified privilege”, hence the references to “actuated by malice”.  In the present case, the relevant statement was made by the defendant to Mr Midgley/Mr Mill privately.  Then the statement was republished by Mr Mill on an occasion of absolute privilege.  What Mr Mill said on an occasion of absolute privilege was then reported by the media which was also an occasion of absolute privilege.  It is not disputed that the plaintiff cannot sue Mr Mill or any other media reporting on the court proceedings by reason of absolute privilege.

85.In the footnote of the above passage, the learned author referred to the case of Belbin v McLean [2004] QCA 181.  In that case, Muir J expressed the view that as a general rule the original publisher could shelter behind the defence available to the republisher and he could see no reason why it would not be the case when the plaintiff seeks to rely on the republication not as a separate cause of action but as a matter going to damages flowing from the original publication.  Mr Yu rightly pointed out that what Muir J expressed in the case was merely obiter because his decision was actually based on the application of section 101(2) of the Criminal Justice Act.  Mr Yu invited me to approach this question through basic principles.

86.Firstly, it is trite that all persons participating in the publication of a libel/malicious falsehood are jointly and severally liable. Thus an author, the editor, the publisher and printer of a libellous article in a newspaper are all jointly and severally liable for the same damage.  When the original publisher of a slander authorizes another person to republish the statement, he is in fact participating in the said republication and can be sued jointly and severally with the actual republisher.  However, if the republication is an occasion of absolute privilege, all participants of the republication, including the person who authorized the republication, could not be sued.  Why then is the original publisher still liable for the damages caused by such republication simply because he had foreseen the republication as a probable consequence?  One would have thought that a person who actually authorizes the republication would be more culpable then a person who has simply foreseen that his words would likely be republished.  If the “more culpable person” is protected by absolute privilege, is it fair that the “less culpable person” is somehow held responsible for the damages flowing from the republication?  In my judgment, I can see no justification in principle or policy for so holding.  I also agree with Muir J when he opined that a denial to the original publisher of the benefit of the defence of absolute privilege open to the republisher could seriously undermine the protection of the defence[72].  

87.Mr Lam referred me to Watt v McKelvie (1978) 248 SE 2d 826 which is a decision of the Supreme Court of Virginia and which is not binding on this court.  The question for the Supreme Court was: “whether the author, or original publisher, of slanderous statement is liable to the person defamed when republication of the statements was made by third persons during the course of judicial proceedings”.  The plaintiff in that case sought to hold the original publisher liable for the consequence of the republication relying on the following commentary in the Restatement:

“If the person who repeats the defamation is privileged to repeat it, the repetition does not prevent the original defamation from being the legal cause of the resulting harm. In such a case, the person who repeats the defamation is not liable to the other because of the privilege. The person defamed, however may vindicate his reputation by an action against the person who first published the defamation.”

The Supreme Court however disagreed with the Restatement. Delivering the judgment of the court, Compton J said:

“The ultimate consideration here is one of policy. So the question becomes whether any new cause of action which may have arisen upon a third-party republication during a judicial hearing may be asserted against the non-participating original publisher or whether the immunity which attaches to the participants in the proceedings applies to such original publisher who may thus assert the privilege as an absolute defense when sued by the person allegedly defamed. We adopt the latter alternative, thus rejecting the Restatement view.”

88.I share the same view as the Supreme Court.  In the present case, the Re‑Amended Statement of Claim pleaded that the defendant “expressly authorized Mr Mill to repeat the statement in open court”.  The present case is a fortiori of the situation in Watt v McKelvie.  The defendant had participated in the republication in open court.  On this basis, she cannot be sued on the republication which is absolutely privileged.  It was then pleaded that “It was also a natural and foreseeable consequence of her answers to Mr Midgley that Mr Mill would identify the plaintiff to the Court as the provider of the Document.”  I cannot see any policy reason as to why this additional averment could somehow have the effect of divesting the defendant of the protection of absolute privilege attaching to the republication which she authorized.  The same would apply for the subsequent media coverage of the court proceedings. 

89.In my judgment, the defendant should not be held responsible for the pleaded special damages which arose out of the republications which were all protected by absolute privilege.  My view is however necessarily obiter as I had concluded at the forefront that the defendant’s utterance to Mr Midgley/Mr Mill was by itself protected by absolute privilege.

CONCLUSION

90.The plaintiff’s claims (whether on slander or malicious falsehood) are dismissed.  I see no reason why costs should not follow the event.  I order that the plaintiff do pay to the defendant costs of this action to be taxed, if not agreed, on party‑and‑party basis.

Mr Benjamin Yu SC and Mr Jonathan Chang, instructed by Baker & McKenzie, for the plaintiff

Mr Kenneth K Y Lam, instructed by Lui & Law, for the defendant

ANNEXURE I

4.  The trial of the Probate Action began in May 2009.  The Probate Action received a huge amount of publicity in Hong Kong.  On the basis of reports of the case, the public perception of Tony Chan was that of an adventurer who had preyed upon Ms Nina Kung, a rich widow, in order to get at her money and who was willing to disclose intimate information about her, and his relationship with her, for personal advantage.  During the trial (and before the events pleaded in paragraph 7 below).  Tony Chan, a married man with two children, made very detailed disclosures about his sexual relationship with Ms Nina Kung, disclosures which were distasteful to the public.  It was also disclosed how he had tried to worm his way to her affections with false promises that he could find her missing husband and other underhand tactics.

4A.    During the trial Chinachem called Gilbert Leung as a witness. Gilbert Leung gave evidence as to the nature of the relationship between Tony Chan and Ms Nina Kung.  Gilbert Leung was cross‑examined by Mr Ian Mill QC on behalf of Tony Chan.  Mr Mill produced and put to Gilbert Leung a document in Chinese (a copy of which and its English translation is annexed to this statement of claim) which purported to show a business proposal made by Gilbert Leung in relation to a development of land in Tak Po into a cinerarium (“the Document”).  The land was alleged to have been bought from the Chinachem Group and the Document projected a hugh profit of some HK$350 million after development.  The land was alleged to have been acquired about one month after Gilbert Leung gave a witness statement in the Probate Action.  On the basis of the Document Mr Mill sought to suggest that Gilbert Leung was a biased witness who had been effectively bribed into giving evidence unhelpful to Tony Chan’s case by the Chinachem Group selling Gilbert Leung the Tai Po land for less than its truth worth.  Gilbert Leung accepted in cross‑examination that the Document had been made by him.  He also said, falsely, that he had discussed the business proposal made in the Document in respect of the Tai Po land with the Plaintiff.

5. During the cross‑examination as to the Document, on 21 May 2009, the trial Judge asked Mr Mill to explain the provenance of the Document.  Mr Mill answered: “The individual who provided it to us is a Mr Edmund Tsang.  He said he was given that by Mr Gilbert Leung.”

6. This statement by Mr Mill was not true.  The Plaintiff had not supplied the Document to Tony Chan or his lawyers or anyone else.  He had never seen or had the Document in his possession.  He had never discussed its contents with Gilbert Leung, or been given it by Gilbert Leung.  The proposal which he had discussed with Gilbert Leung (and rejected) regarding the land in Tai Po was for a residential development at a projected profit of about HK$18 million.

7.  The statement made by Mr Mill was based on instructions he heard from the Defendant when she was providing instructions to Mr Midgley, a partner in the firm Haldanes over the speaker phone in a mobile telephone conversation between the Defendant and Mr Midgley on 21 May 2009, prior to which the source of the Document (whose identity was not known to Mr Mill and Mr Midgley) did not authorize the use of the Document in the Probate Action, pending Tony Chan’s agreement with the source on the financial terms for its use.  The Document was given by the Defendant to Mr Midgley before the cross examination of Gilbert Leung.  Mr Midgley asked the Defendant where she had got the Document from.  The Defendant, acting as representative of Dr Sidney Siu, replied: “Edmund Tsang.”  Mr Mill then asked the Defendant, through Mr Midgley, whether he could reveal the name Edmund Tsang to the Court.  The Defendant said yes.