Yuen Chi Man Daniel v. Cheng Pui Man

HCA 1410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1410 of 2014

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D E C I S I O N
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Background

1.The summons before me is an application to strike out the entire, or alternatively, part of the statement of claim in the action pursuant to Order 18, rule 19, alternatively for issues to be determined as preliminary issues under Order 14A, rule 1.

2.The action is founded on defamation.  The parties were both employed by the same school.  At the material time, the plaintiff (“Yuen”) was the Assistant Principal and the defendant (“Cheng”) was a Teaching Assistant.  The claim arose out of certain complaints made by Cheng against Yuen in a letter addressed to the school principal, and in a subsequent meeting with other attendees conducted pursuant to the complaints.

3.The complaints made by Cheng against Yuen was that Yuen patted her shoulder on various occasions during work since about September 2013, which she said made her feel increasingly uncomfortable although she did not complain because of their disparate position in the school.  

4.In February 2014, the school issued a document titled “Preventing Sexual Harassment Policy” (“the Policy”) expressly prohibiting certain unsolicited, unwelcome contact with sexual implications, including but not limited to intentional touching and light touching of another person’s body.

5.Upon reading the Policy, Cheng took the view that the patting of her shoulders by Yuen was in the nature of sexual harassment within the meaning of the Policy.  Her view was further bolstered by what she was allegedly told by a student during an unrelated telephone conversation in about mid March 2014.  The unnamed student allegedly informed her that in the school where he previously taught, Yuen had a nickname in colloquial Cantonese[1] which suggested that he was known to have the undesirable habit of indecently touching others with his hands.  

6.Cheng then wrote a letter to the Principal Madam Chan Chuen Ning (“Principal Chan”) dated 17 March 2014 complaining of sexual harassment against Yuen.  As a result of the letter, Father Yim Tak Lung (“Father Yim”), who was the Director of Education Services Division of Caritas Hong Kong, a network of educational institutions to which the school belongs, convened a “reconciliatory meeting” that took place on 12 May 2014 in the presence of the Yuen, Cheng, the Supervisor of the school Madam Ho Wai Chu (“Madam Ho”), and himself.  Yuen claimed that he was never told of the nature of the meeting.  At the meeting, Cheng was said to have made further defamatory statements against him.  After Cheng failed to withdraw the statements contained in the letter of 17 March 2014 as requested in a letter before action, Yuen issued the present action.

The defamatory statements and the defence of qualified privilege

7.The defamatory statements relied on in the statement of claim are as follows:

(1) Written statements contained in the letter dated 17 March 2014 published to Principal Madam in the following words[2] (“the 17 March Statements”):

「(a) 近日校內派發 [防止性騷擾政策] 文件，內裡提醒我們，如果有身體接觸令到自已感到不安，也是性騷擾的一種...上學期開始，本校袁志文副校長曾多次於工作時間內拍打本人的肩膊...一直以來本人保持沉默因為對方身份為副校長...

(b) 而近日在同學口中得知袁副校在莊月明有個Nickname [鹹豬手]...」

(2) Verbal statements made at a conciliation meeting with the defendant, Father Yim and Madam Ho (“the 12 May Statements”) in these terms[3]:

「(a) ...一吓就搭落嚟，...

(b) ...我都好清楚你真係有拍過我...

(c) ...你唔好講大話啦，你真係尊重我，你唔好講大話啦！...

(d) ...就咁拍一拍咁樣囉，佢好興...

(f) ...你就係擺明無私顯見私咁樣呢...

(g) ...其實你有做過呢啲嘅行為，但我唔知你基於乜嘢意識嘅，但係你又喺到話無咯。」

8.There was no dispute that the statements were made by Cheng and that they were defamatory.  Cheng’s defence was that the statements were made on occasions of qualified privilege, in that the communications were made pursuant to a duty or a matter in which there was a common interest on the party making and the party receiving it.

9.On the other hand, Yuen claims that the defence was unavailable to Cheng because of malice, in that Cheng knew the statements were false or without basis, but had made them with the ulterior motive of removing him from the school.  It was not disputed that even before the 12 May Meeting Cheng requested Father Yim to transfer Yuen out of the school, although the request was not made known to Yuen until Cheng divulged it on affidavit evidence filed under the summons.  Yuen further relied on the following statements uttered at the 12 May Meeting as bolstering the claim of malice[4]:

「其實都合作唔到嘅喇，副校！」

「其實我頭先講到呢，合作唔到喇！你會唔會考慮下，咁多間明愛...」

The summons

10.The defendant’s striking out application targets the entire claim, alternatively the part of the claim relating to the 12 May Statement, both on the grounds that the claims disclose no reasonable cause of action and are frivolous, vexatious or otherwise an abuse of the process of the court.

11.The defendant advanced no submissions for the purpose of the application under Order 14A.  I take it that that part of the summons is no longer pursued.

Legal principles on striking out

12.The legal principles on striking out a claim is well established. These are summarized in Hong Kong Civil Procedure 2015, §§14A/2/4, 18/19/4.  They can be reduced to the following points:-

(1) The application should be reserved for plain and obvious cases.

(2) The procedure is not suitable for deciding difficult points of law.

(3) The court should refrain from conducting a trial on affidavit evidence.

(4) To justify an order for striking out, the claim must be obviously unsustainable, the pleading unarguably bad, and it must be impossible, not just improbable, for the claim to succeed.

13.Plaintiff’s counsel relies on the following passage in LY Group Development Ltd v East Canton Ltd,unreported, HCA 1428/2014, 15 July 2015 at §14 which in my view represents a correct statement of the principles.

“It is trite law that it is only in plain and obvious cases that the court should exercise its summary powers to strike out an indorsement on any writ or pleading under Order 18 rule 19 … There should be no trial upon affidavit. Disputed facts are to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleading unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out. One must be careful not to drive a plaintiff from the judgment seat nor should the court decide difficult points of law. Where the legal viability of a cause of action is sensitive to the facts, an order to strike out should not be made.”

14.I was also reminded that a defamation claim should not be struck out simply because a case appears on paper to be extremely weak, and that the court should resist the temptation of hastening its demise: Wong Wing Ho v Chong Lai Wah,CACV 212/2007, 13 February 2008 at §2.

Legal principles on qualified privilege and malice

15.The principles relevant to qualified privilege has been set out neatly in Adam v Ward [1917] AC 309 at §334 by Lord Atkinson:

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

16.The following statement of principles on where qualified privilege would arise appears in Gatley on Libel and Slander, 12^th ed, §14.9:

“(1) Where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or

(2) Where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.  It may be accepted as a well‑established rule that some duty or interest must exist in the party to whom the communication is made as well as in the party making it. The duty or interest may be common to both parties, but this is not essential. It is enough if there is a duty or interest on one side, and a duty or interest, or interest or duty (whether common or corresponding or not) on the other.”

17.As there appears to be no dispute on whether the facts for establishing qualified privilege existed, I do not find it necessary to go into the requirements of proof of the defence.

18.The defence of qualified privilege can be vitiated by malice.  It involves the plaintiff proving that the defendant used the occasion for some purpose other than that for which the occasion was privileged.  In Albert Cheng & Another v Tse Wai Chun [2000] HKCFAR 339 at 355‑356 Lord Nicholls of Birkenhead NPJ analysed the meaning of “malice” in the law of defamation and decided that it bore different meanings in the context of the defence of fair comment and the defence of qualified privilege.  His Lordship identified the rationale of the defence of qualified privilege as the notion of a duty recognised in law as arising in certain circumstances when there is a need in public interest for a particular recipient to receive frank and uninhibited communication of particular information from a particular source.  Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information.  If a person’s dominant motive is not to perform this duty or protecting this interest, he is misusing the privileged occasion and it brings him outside the ambit of the defence.  Malice in the context of qualified privilege focuses on the presence of an improper dominant motive rather than on honesty of belief.  Counsel for the plaintiff Mr Mak reminds me that a dominant motive needs not be the only motive, and indeed there may be more than one dominant motive.  I agree.

19.The above principles were elucidated by Lord Diplock in Horrocks v Lowe [1975] AC 135:

“[The defendant] is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. … ‘Express malice’ is a term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.” (at 149F‑G).

“What is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally tautologously termed ‘honest belief’. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.” (at 150B).

“Even a positive belief in the truth of what is published on a privileged occasion — which is presumed unless the contrary is proved — may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled.” (at 150E‑F).

“There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.” (at 150F).

“The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. … It is only where the defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that express malice can properly be found.” (at 150H‑151B).

20.While the focus in finding malice in the context of qualified privilege is in the dominant motive, the honesty of belief in the truth of the defamatory statement, or the lack of it, is not irrelevant.  As explained by Lord Diplock in Horrock v Lowe, ibid at 150H, “judges and juries should … be very slow to draw inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he was indifferent to its truth or falsity”.

21.In Seray‑Wurie v Charity Commission of England & Wales [2008] EWHC 870 (QB) at §§34‑35, Eady J stated that the allegations of malice must go beyond that which is equivocal or merely neutral.  The claimant cannot merely assert that the person abused the occasion of privilege.  The claimant should demonstrate that the relevant person was either dishonest, or had a dominant motive to injure the claimant.

22.Where malice is relied on, the pleas must be scrutinized with particular care.  In Jonathan Lu & Ors v Paul Chan Mo‑Po (HCA 370/2012, unreported, 13 February 2014), To J explained in §29 that:

“I am in total agreement with the legal principles expressed that Eady J. [In Dorset Flint & Stone Blocks Ltd v Moir & Others [2004] EWHC 2173 (QB)] While finding of fact and what inferences to be drawn are matters for the jury, insofar as allegation of malice is concerned, it is not enough to merely put in a plea of malice and leave it to be decided by the jury. Malice is a serious allegation to make against anyone. Such a plea must be scrutinised with particular care to see whether it complies with the minimum standards laid down in such cases as Somerville v Hawkins [1851] 10 CB 583, Turner v MGM Pictures [1950] 1 All ER 449, Telnikoff v Matusevitch [1911] 1 QB 102 and Alexander v The Arts Council of Wales [2001] 1 WLR 1840. Likewise, allegation of malice must also be carefully scrutinised to ensure that there is sufficient evidential basis for making the allegation, or in a case built on inference, sufficient evidential basis on which such inference could be drawn. If there is not, it shall be the court’s duty to strike out the plea. The test is whether the facts alleged are more consistent with the presence of malice than with its absence. Also, allegations of malice should not be made formulaically by way of bare assertion. The court should be wary of the risk of such allegations being used as a tactical weapon to try to bludgeon people into submission or compromise.” (emphasis added)

Pleading of malice

23.Paragraph 18 of the statement of claim states that the statements were made by Cheng “knowing [them] to be false or without basis or [Cheng was] reckless in relation thereto, in the expectation that the prospect of gain to the defendant would outweigh the compensatory damages awarded against her”. While the plea under §18 was unsatisfactory in that its context is a plea on the plaintiff’s entitlement to exemplary or aggravated damages, defence counsel Mr Dawes SC was prepared to accept at least §18(b) as pleadings on malice[5].  In my view it would be consistent with the above stance to include §18(c) too as being relevant to the plea of malice.  The relevant parts of §18 of the statement of claim are set out below:

“b) The allegation and/or the contents in the 17 March Statements and 12 May Statements were made falsely and maliciously with the intent and purpose to force the plaintiff to leave the School:

(i) At the Reconciliation Meeting, the defendant would have known that her accusations which amounted to sexual harassment was not accepted by the School and rightly so.

(ii) However, after much animosity towards the plaintiff on a number of matters, the defendant repeatedly and categorically stated that she could not co‑operate with the plaintiff and asked the plaintiff to consider leaving to other schools under the Caritas network.

(iii) The defendant further stated that the plaintiff and her would “jump 10 feet apart” when they meet and that they would not look at each other.

The plaintiff repeats paragraphs 1 to 14 above insofar as may be necessary...”

24.Paragraph 7 of the reply states as follows:

“As to paragraph 11, it is denied that an occasion of qualified privilege was involved. The plaintiff avers that 17 March Statements were published with malice:

a. At all material times, the relationship between the plaintiff and the defendant could not be said to be on good terms.

b. The defendant had hoped that the plaintiff would leave the School.

c. At the Reconciliation Meeting, notwithstanding the plaintiff was still her superior, the defendant was bold enough to repeatedly confront the plaintiff of her allegations and indicated to those present at the meeting in clear voice that she could not co‑operate with the plaintiff and asked the plaintiff to consider switching to another school under Caritas, Hong Kong:

Particulars

i.  「其實都合作唔到嘅喇，副校！」

English translation: ‘Actually, we cannot cooperate, Assistant Principal!’

ii.  「其實我頭先講到呢，合作唔到喇！你會唔會考慮下，咁多間明愛...」

English translations: ‘Actually as I said just now, we cannot cooperate!  Will you consider … there are so many Caritas …’”

25.I shall proceed to examine whether on the case as pleaded there is sufficient evidential basis upon which the inference of malice could be drawn in respect of both sets of statements.  In the absence of a sufficient evidential basis, the claims should be struck out. If there is sufficient evidential basis, I shall further have regard to whether it is plain and obvious that the facts alleged and the inferences that could be drawn from such facts are more consistent with the presence of malice than with its absence.  If it is plain and obvious that the undisputed facts and the facts alleged, if proven, could only give rise to inferences which are not any more consistent with malice than the absence of malice, the claims should be struck out.  It follows that if the undisputed facts and the allegations, if proven, could support inferences of an improper dominant motive, I should allow the claims to proceed.

Undisputed facts and evidence for inference of malice to be drawn

26.Defence counsel, Mr Dawes SC, invites me to focus on matters pleaded in the statement of claim and on the undisputed matters set out under section B of his skeleton argument.  However, I note that a number of matters pertinent to the pleaded case of malice are disputed and cannot be resolved on affidavit, although there are undisputed facts and evidence from which inference could be drawn to arrive at a conclusion on the disputed allegations at the end of the day.

27.The most important of the pertinent matters in dispute is whether the allegation that Yuen had on several occasions patted on Cheng’s shoulder were false allegations.  Paragraph 7 of the statement of claim asserts that it is false.  The assertion is backed by evidence made on affirmation by Yuen[6]. The evidentiary basis is not limited to Yuen’s own denial on affirmation, but extends to inferences that could be drawn from the following matters which Cheng does not dispute:

(1) That in the 17 March Statements, Cheng said that with regard to the patting on the shoulder, 「起初本人並不為意，但稍後心感不安亦於行動上表示抗拒」[7], which means in English “at first I did not think it mattered, but later I felt unsettled about it and also showed my resistance [to this type of conduct] in [my] action[8]”.

(2) However, in Cheng’s 2^nd Affirmation §9, she embellished her allegation at an interview with the investigation team by saying that she “found it annoying how [Yuen] pats people and he felt his eyesight [sic] was indecent”.  She added that she said so because she “genuinely found the plaintiff’s eyesight [sic] indecent”.

(3) In the 17 March letter, Cheng stated that she had kept her silence all along because of the superior position of Yuen.  However, lately she learned of the nickname of Yuen in the school where he previously taught, she “therefore found it imperative to raise her experience with the Principal, in the hope that other colleagues will not suffer silently if they were to have undergone similar experience” (emphasis added).

(4) That Cheng appeared to have made no attempt to ascertain the veracity of Yuen’s alleged nickname known in the school in which he previously taught, but readily relied on it as evidence supporting indecency in the patting action that she did not previously characterise as indecent.  The alleged nickname was said to have been disclosed to her in what appeared to be a casual reference made by an unnamed student who was not even a student from the school where the nickname was allegedly circulated[9].

(5) At the 12 May Meeting, Cheng described the patting as follows: 「...佢好似，呢個拍其實係代表咗叫囉，因為佢無叫，就咁拍一拍咁樣囉，佢好興㗎，佢自己唔知知唔知。」「你自己，我唔知你有心定無意呀，可能，即係，都係嗰句啦，你無心嘅，但係人地會唔安樂囉！」

(6) At the 12 May Meeting, Cheng proceeded to describe how Yuen would approach and stand in a position close behind her, not to give any instructions to do work, but just peering over her shoulder to see what she was doing.  She then complained how sometimes he would call out her name in a loud voice without following up with any instructions, except to say “Nothing, I was just calling your name”.  She complained that in so doing he behaved in a peculiar manner, causing her to feel perturbed and embarrassed, though she could not say it was any transgression.

(7) At the 12 May Meeting and before, Cheng had asked for Yuen to be transferred out of the school to be posted to another school within the Caritas education network.  However, in her affirmation, she explained her request in these terms :

“I did not make this request because someone encouraged me or offered me something but because I felt there was no way we could work in the same school given his conduct towards me.”

28.In my view, the inferences that could be drawn (and it is not necessary to put it any higher than that for present purposes) from the above undisputed matters as part of a wider picture include the following:

(1) That the patting did not take place.  If there were occasions of patting by Cheng for as many times, and with an indecent look every time it happened, it would have been highly unlikely that Cheng would not have raised an issue either with Yuen or with the Principal well before the school published the Policy.  The embellishment referred to in (2) in the preceding para is inconsistent with Cheng’s acceptance at the 12 May Meeting that Yuen might not have been conscious of his habit of patting on others’ shoulders to draw attention instead of calling their names see (6) below.

(2) That even if the patting took place at all, they were not felt to be indecent at the time, and neither did Cheng feel offended or believed that they were of sexual connotations, for the same reason as set out in the previous sub‑para.  The denials in pleadings and in evidence on the part of Yuen that some patting on the shoulder of Cheng took place were not necessarily inconsistent with Yuen’s evidence given to the investigation team that “he could not remember” if he patted the complainant’s shoulder, or he did not do so “as far as he could remember”.  It will be noted that not even the complainant could remember the occasions on which these were alleged to take place, a number of months having been allowed to elapse since the conduct under complaint.

(3) That Cheng did not like Yuen because of various traits in his interactions with her, but indecency or any conduct with sexual connotation was not the complaint.  The alleged “look of indecency in his eyes” would have been crucial to the complaint but was only mentioned to the investigation team as a supplementary point but not in the 17 March Statements or the lengthy descriptions at the 12 May Meeting.  On the other hand, the parties’ relationship was not cordial. Against this background, the conduct under complaint, even if it was believed to fall within the conduct targeted in the Policy, was more likely than not to have been made with a view to relying on the Policy as a pretext to remove Yuen.

(4) Neither Cheng’s subsequently acquired understanding of what amounted to sexual harassment after reading the Policy nor her knowledge of Yuen’s nickname acquired from a student changed the nature of his acts of patting on Cheng’s shoulder as she had then understood it.  The reliance on the Policy published months after the alleged patting was more likely a pretext to secure his transfer away from the school, which was an improper and dominant motive.

(5) That the dominant motive of making the 17 March Statements was not to encourage others not to suffer in silence as claimed in the letter of that date, but to injure Yuen by causing his removal from his position as Vice Principal in the school.  If the reason why Cheng had not complained earlier was due to Yuen’s superior position as the Vice Principal, there was no reason why the gossip passed on from a student about Yuen’s nickname in his previous school should have readily been accepted without any further enquiry or factual verification to form the basis of an important decision to file a complaint. Further, the way in which she communicated with those present at the 12 May Meeting was inconsistent with any consciousness of the disparity in ranks, less still any feeling of intimidation by reason of Yuen’s superior position.  On the other hand, Cheng’s complaint of patting was embellished at the 12 May Meeting with other complaints which could not be stringed together to form any substantive complaint on their own. The raising of these petty issues and the vague allegation that they were somehow “inappropriately intimate”, and “disgusting” (「你就係擺明無私顯見私咁樣呢...我自己覺得好肉酸㗎呢啲嘢」) was more consistent with malice than the absence of it.

(6) The matters set out in the preceding paragraph point to the desire to remove Yuen from his position as Vice Principal as the dominant motive, rather than any moral indignation ignited by the subsequently acquired knowledge of the Policy or the nickname.  The undisputed evidence of the bold request from Cheng that Yuen be posted to another school in the network simpy because there was no possibility of further cooperation gives credence to the view that there was in fact no feeling of moral offence attached to the nature of the conduct under complaint.  The suggestion from Cheng that they could not “work together”, and that he should consider transferring to another school under Caritas (「其實都合作唔到㗎喇...你會唔會考慮下，咁多間明愛...」) does not sit well with the disgust expressed in §24 of the 2^nd Affirmation of Cheng, but rather points to the presence of the improper dominant motive of using the complaint to pressurise Yuen into agreeing to a transfer from the school against the risk of the transfer being imposed upon him.  No significant degree of disgust was felt until months after the incidents: according to Cheng herself at the 12 May Meeting, the patting had been interpreted merely as a habitual though unwelcome way in which Yuen called upon his colleagues, without any allegation of indecent or sexual connotation[10] (呢個拍其實係代表咗叫囉，因為佢無叫，就咁拍一拍咁樣囉，佢好興㗎，佢自己唔知知唔知).

(7) Cheng’s own acceptance at the 12 May Meeting that Yuen himself possibly did not even mean to attach any indecent connotation to the patting, and her acceptance that Yuen might not even have been conscious of his own action, both make her insistence of “no possibility of future cooperation” a disproportionate reaction.  Her suggestion of his transfer as the only solution is likewise a disproportionate and extraordinary suggestion coming from a low‑ranking member of staff.  This further supports the notion that the evidence is more consistent with the presence of a dominant motive of removing Yuen from the school than the absence of such motive.

29.In the above analysis, I make no clear differentiation between the 17 March Statements and the 12 May Statements.  This is because the defence of qualified privilege is raised in respect of both sets of statements, and malice was likewise relied on to vitiate the defence.  The nature and contents of the two sets of statements do not differ significantly: both refer to the patting of the shoulder as having taken place, and were considered either as indecent or somehow disgusting, and in the 12 May Statements Yuen was accused of having lied in denying having committed such offensive acts.

30.As set out above in the relevant legal principles, an honest belief in the truth of the statements does not necessarily displace the existence of an improper dominant motive.  It is not within the purview of this court for the purpose of the summons to decide whether sexual harassment within the meaning of the applicable law or the statements in the Policy did or did not take place as alleged by Cheng.  That said, I will not for a moment be guided or influenced by the conclusions reached by the investigation team contained in the investigation report[11].  Indeed, I consider the findings made by the investigation team highly problematic in many aspects, based on what appears to be a limited understanding of the ingredients of the wrong, and the subsequent handling of the report, but which I do not consider necessary or appropriate for me to go into in this decision.  I do not consider the findings in the investigation report should in any way affect my view on the presence or absence of malice on the part of Cheng in making the statements.

Sufficient evidential basis

31.If the assertion that the statements were false is proven, ie that the repeated patting on Cheng’s shoulder did not in fact happen, it would in my view be more consistent with malice than the absence of malice.  Even if the statements were found to have been made in an honest belief that the patting constituted “sexual harassment” however misguided the view was, I would still consider that the matters set out above form a sufficient evidential basis from which an inference of the presence of a dominant improper motive could be drawn so as to vitiate the defence of qualified privilege.  As to whether an inference of malice should be drawn at the end of the day, much would depend on findings of fact and the credibility of the witnesses to be produced at the trial. 

Unpleaded or insufficiently matters

32.I should mention that there are matters which were adverted to in the particulars given of malice, though not pleaded with sufficient detail as would enable the defendant to know in advance what was relied on before affirmation evidence was filed.  Paragraph 18(b)(ii) of the statement of claim refers to animosity between Yuen and Cheng on a number of matters but does not particularise the same.  However, in the 2^nd Affirmation of Yuen, he described at length the animosity between the Principal and himself, and his belief that Cheng and her close friend who also made a similar complaint against him were colluding to help the Principal remove him as a threat to her plan to secure an extension of her term as school principal. 

33.Yuen gave a number of examples of incidents that in his view illustrated how the Principal was targeting him with unfair treatment, impossible tasks and unwarranted criticisms in the months running up to the complaints in March 2014.  Yuen relied on these disputes and unreasonable treatment from the Principal that did not directly involve Cheng as too much of a coincidence in terms of timing, and the fact that the Principal did not contact him over the complaint made by Cheng against him as giving rise to a strong suspicion that Cheng was colluding with the Principal. 

34.In view of what I have said regarding the pleaded and undisputed matters, I find it unnecessary to rely on these unpleaded matters for present purposes.  If the plaintiff wishes to have his strong suspicion further investigated, he should properly plead the facts and matters relied on so the defence has full notice of the ambit of his allegations relevant to the claim of malice.

Conclusion on the application to strike out

35.While the pleadings are far from being perfect in terms of proper particularisation, I conclude that it is not a plain and obvious case where the pleaded claim of malice to defeat the defence of qualified privilege will not get off the ground at all.  I take the view that the undisputed facts taken with the allegations, if proven, and the inferences that could reasonable be drawn from such facts, are more consistent with the presence of malice than with its absence.  I am not prepared to shut the plaintiff out from pursuing his claim.  Accordingly, I dismiss the application.

Costs

36.I make an order nisi that the plaintiff’s costs of the summons are to be borne by the defendant, to be taxed if not agreed.  I do not find this application appropriate for the costs of more than one counsel to be allowed.  Any submissions on costs should be made in writing, limited to two A4 pages, to be filed within 14 days of this decision, whereupon a determination will be made and notified to the parties in due cause.  In the absence of any submissions filed, the costs order will become absolute upon the expiry of 14 days from the date of this decision.

37.Last but not least, I am much indebted to counsel on both sides for their thorough research, able submissions, and their unfailing courtesy at the hearing, for which I wish to extend my sincere gratitude.

Mr Andrew Mak, Ms Carol Wong, instructed by Adrian Yeung & Cheng, for the plaintiff

Mr Victor Dawes SC, instructed by Mayer Brown JSM, for the defendant