Jonathan Lu and Others v. Paul Chan Mo Po and Another
Read the full judgment text of CACV 251/2015 on BabelCite. This Court of Appeal judgment was delivered on 23 December 2016.
1. The 1 st and 2 nd plaintiffs are twin brother and sister. The 3 rd plaintiff is their father. The 1 st defendant is the Secretary for Development, formerly a member of the Legislative Council representing the Accountancy constituency. The 2 nd defendant is his wife.
Cited by 1 case · Cites 6 cases
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CACV 251/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 251 OF 2015 (ON APPEAL FROM HCA 370/2012) _______________
_______________ AND CACV 252/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 252 OF 2015 (ON APPEAL FROM HCA 370/2012) _______________
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________________________ J U D G M E N T ________________________ The Court : A. Introduction A1. Overview 1.The 1st and 2nd plaintiffs are twin brother and sister. The 3rd plaintiff is their father. The 1st defendant is the Secretary for Development, formerly a member of the Legislative Council representing the Accountancy constituency. The 2nd defendant is his wife. 2.At the material times, the 1st and 2nd plaintiffs and the defendants’ daughter were Year 13 (final year) students for 2011-2012 at Chinese International School, a well known international school in Hong Kong (“CIS”). The 1st plaintiff was also the Head Boy for Year 13. The 3rd plaintiff was a member of the board of governors of CIS (“Board of Governors”). 3.In November 2011, rumours were circulating amongst the CIS community that the 1st plaintiff was suspected of having cheated in a test but got away with it because his father, the 3rd plaintiff, was a member of the Board of Governors. 4.What followed were several rounds of emails amongst some of the concerned parents, including the defendants, and between the parents and the school management in early December 2011. Meanwhile, two meetings with the school management took place. The first was on 8 December 2011 attended by seven parents including the defendants (“the 8 December Meeting”). They met with the school management to discuss their concerns. The second meeting was held on 14 December 2011 (“the 14 December Meeting”) where three Year 13 students, accompanied by their parents, related to the CIS’s senior school management what they observed to be certain suspicious behaviour of the 1st and 2nd plaintiffs at an economics test on 24 November 2011. 5.In the end, the CIS’s school management decided on 15 December 2011 not to take any action against the 1st and 2nd plaintiffs. Some concerned parents remained dissatisfied with the school’s decision and how the matter was handled by the school management. A2. Action 6.The plaintiffs commenced the action below, suing the defendants for defamation arising from their publication of :[1]
7.The plaintiffs complained that the Emails and the Summary were defamatory of them. The sting of the Offending Words is, among other things, that :
8.The defendants admitted that they were the publishers of the Emails and the Summary. They however denied that the Offending Words were defamatory. Alternatively, they relied on the defence of qualified privilege. In reply, the plaintiffs pleaded malice. A3. The Jury’s findings 9.After trial,[2] the jury first found that all the Offending Words were defamatory of the plaintiffs. They next found that the 4th Offending Words contained in the 4 December 1st Email, the 6th Offending Words contained in the 6 December Email, the 2nd Offending Words contained in the Summary and the 3rd Offending Words contained in the 16 December Email were all published with malice but the 1st Offending Words contained in the 1 December Email and the 5th Offending Words contained in the 4 December 2nd Email were not. They finally awarded damages to the 1st plaintiff in the sum of HK$100,000.00; the 2nd plaintiff, HK$50,000.00 and the 3rd plaintiff, HK$80,000.00. A4. To J’s Decision 10.The matter then went back to To J for his determination on qualified privilege and costs of the action.[3] 11.By a decision handed down on 7 October 2015, the learned Judge found that the publication of the 1st Offending Words/1 December Email and the 5th Offending Words/4 December 2nd Email was protected by qualified privilege. 12.In respect of costs, the Judge ordered :
A5. Appeals 14.In CACV 251/2015, the plaintiffs sought to set aside the Judge’s decision on qualified privilege and the Costs Order. In CACV 252/2015, the defendants sought to challenge the Judge’s directions to the Jury and their findings on malice. B. Circumstances surrounding the publications 15.Since both qualified privilege and malice are fact-sensitive questions, we will in this section detail the relevant circumstances surrounding the publication of each of the Offending Words in order to give the proper context to our discussion on them later. B1. Rumours preceding the publications 16.During an economics test held on 31 October 2011, Lok Lok, a student of Year 13, observed some suspicious behaviour on the part of the 1st and 2nd plaintiffs.[5] During another economics test held on 24 November 2011, Lok Lok and 3 other fellow students, Laura, Danielle and Joyce, observed certain suspicious behaviour of the 1st and 2nd plaintiffs as described by Lok Lok, Laura and Danielle in the taped transcript of the 14 December Meeting.[6] In gist, according to what they saw, the 1st and 2nd plaintiffs were suspected of cheating during the test. 17.As of 29 November 2011, rumours were circulating among CIS’s students and their parents that the 1st plaintiff was suspected of having cheated in a test but he got away with it because his father was a member of the Board of Governors.[7] The rumours were widespread. They had reached many parents including Michelle Chin, Rosa Ling, Anney Lay (Danielle’s mother) and Jenny Chua (Laura’s mother), and the 2nd defendant.[8] 18.The second defendant’s unchallenged evidence was that she learnt of the rumours from her daughter towards the end of November 2011. B2. Emails before the 8 December Meeting 19.The rumours prompted the 2nd defendant to send an email (signed by her and the 1st defendant) to Ken Pemberton and his wife, Fanny Wong, parents of a Year 13 student, copied to the 1st defendant on 1 December 2011 at 11:36 pm (“the 1 December Email”). It read :
20.In the last paragraph of the 1 December Email, the 2nd defendant referred to Ken Pemberton as the “Chair of PTA”, mistakenly thinking that he was still the President of CIS’s Parent-Teacher Association (“CISPTA”). 21.Ken Pemberton wrote back to the 2nd defendant at 4:23 am on 2 December 2011 correcting her mistaken belief and gave her the name and email address of the current President, Barbee Chuidian. At 8:20 am on the same day, the 2nd defendant forwarded the 1 December Email to Barbee Chuidian and asked her to look into the matter and let the 2nd defendant have her views. 22.Barbee Chuidian then took up the matter with the CIS’s school management by forwarding the 1 December Email, together with Ken Pemberton’s reply to the 2nd defendant to Justin Alexander, the Head of Secondary, copied to Dr Theodore Faunce, CIS’s Principal, at 9:03 am on 2 December 2011. She told Alexander that she would respond to the parents that he would get back to them directly. At 8:45 pm on the same day, Barbee Chuidian emailed the 2nd defendant, copied to the 1st defendant, saying that she had relayed their message to Alexander but since Dr Faunce was not in Hong Kong at the time, she had not had the opportunity to speak with him. She said Alexander would be in touch. 23.In the meantime at 6:55 pm, the 2nd defendant forwarded the 1 December Email to Michelle Chin, asking whether she should copy this email to Anney Lay as well, as suggested by Jenny Chua. At 7:20 pm, the 2nd defendant forwarded her email to Michelle Chin, including the 1 December Email, because Jenny Chua had asked the 2nd defendant to keep her informed of the development of the matter. At 9:21 pm, the 2nd defendant upon the suggestion of Michelle Chin and Jenny Chua, sent an email to Anney Lay, forwarding her email to Barbee Chuidian and the 1 December Email. Anney Lay’s reply email came on 3 December 2011, at 12:16 am. She stated her understanding of the incident and its follow-ups. She said “this was not the first time” and suggested a meeting with Brian Mulcahy, Head of Year 13. At 10:03 am, Anney Lay emailed the 2nd defendant again, stating that Brian Mulcahy had agreed to meet with her on Monday afternoon. Anney Lay had mentioned that a parent had voiced her opinion to the CISPTA and Justin Alexander, and Brian Mulcahy asked if Alexander’s response could be shared with him. Anney Lay invited the 2nd defendant to join her in seeing Brian Mulcahy on Monday. At 11:37 am, the defendant emailed Anney Lay, asking why they were seeing Brian Mulcahy and informing him of what Alexander had told her. (Alexander had called the 2nd defendant in relation to the 1 December Email in the meantime.) At 11:52 am, the 2nd defendant emailed Anney Lai again. She said she now had a better understanding after reading Anney Lay’s email at 12:16 am but still wanted to speak to Anney Lay. They did speak during which Anney Lay repeated that the incident was not the first time. 24.On 4 December 2011 at 00:36 am, the 2nd defendant sent an email to Alexander, copied to Barbee Chuidian and the 1st defendant (“the 4 December 1st Email”). She wrote :
25.Some 36 minutes later, at 1:12 am, the 2nd defendant sent another email to Mulcahy, copied to Anney Lay, forwarding to him the 4 December 1st Email (“the 4 December 2nd Email”). She wrote in the introductory part :
26.At 9:11 pm, Michelle Chin emailed the 2nd defendant, thanking her for sharing the 4 December 1st Email; and stating that she had heard that Isabella Bersani’s parent(s) had also talked to Alexander about the same issue but there was no clear answer or action yet. 27.At 10:56 pm, Anney Lay emailed the 2nd defendant and Jenny Chua about the meeting with Mulcahy on the following day. 28.On 5 December Anney Lay, Jenny Chu and the 2nd defendant met with Mulcahy. There were further exchanges of emails among the parents on the same day. In particular, Anney Lay wrote to Rosa Ling and Fanny Wong, forwarding the 4th December 1st Email to them, expressing her view that the school was “trying to sweep this under the carpet”. 29.On 6 December 2011, the 2nd defendant at 1:24 am sent an email to Teresa Ko, copied to the 1st defendant (“the 6 December Email”). After introducing herself and the 1st defendant, she wrote :
30.At 1:26 am, the 2nd defendant forwarded the 4 December 1st Email to Teresa Ko. At 8:16 am, Teresa Ko replied to the 2nd defendant, copied to the 1st defendant, stating that she would be happy to join the 8 December Meeting with Dr Faunce and his staff, and seeking further information about the incident. At 10 am, the 2nd defendant emailed to Anney Lay, Jenny Chua, Fanny Wong and Rosa Ling, letting them know that Teresa Ko would be joining the 8 December Meeting. 31.On 7 December 2011 at 9:21 am, the 2nd defendant wrote an email to Anney Lay, Jenny Chua, Fanny Wong and Rosa Ling, explaining why she got involved and the sequence of events that led to the 8 December Meeting. She wrote :
32.At 5:45 pm, the 2nd defendant emailed Fanny Wong and others, asking for confirmation as to who would attend the 8 December Meeting and stating that Alexander had reiterated that he would like to keep the number of parents to 6. B3. The 8 December Meeting and thereafter 33.Before the 8 December Meeting, the 2nd defendant prepared a summary for the purpose of the Meeting (“the Summary”). The Summary was entitled “Summary of main points for the Meeting with Ted Faunce and his staff on 8 December 2011”. After naming the parents who would attend, it read : “ Our kids and we are deeply disturbed by the rumours that the Head Boy has cheated in exams but managed to get away with it because his dad is on the Board of Governors. There are also rumours that he was alleged to have cheated last year but nothing was seen to have happened; AND he was made the Head Boy the following year. These rumours are very damaging to the image of CIS and erode students’ trust in the School. We feel strongly that the School should do something promptly to contain the damages. We come here not to point fingers. We are here to present the problems as we see them and to listen to what the School has done/will do about these.
34.The Meeting was attended by Dr Faunce, Alexander, McQuillan and Mulcahy of CIS, and the defendants, Anney Lay, Danny Lay, Teresa Ko, Eric Wong and Rosa Ling, some of the concerned parents. 35.After the Meeting, Dr Faunce at 4:11 pm wrote an email to the 2nd defendant, thanking her for organizing the Meeting and asking her to forward his email to other parents who were present. He said :
36.At 4:13 pm, the 2nd defendant emailed to the 1st defendant, Anney Lay, Rosa Ling, Teresa Ko and Jenny Chua, stating that the 8 December Meeting had gone very well and she felt a great relief that it was now over and the ball was now in Dr Faunce’s court. 37.While the school was revisiting the matter, further emails ensued among the defendants and the parents. B4. Between 9 and 16 December 2011 38.On 9 December 2011, the 2nd defendant at 11:12 pm emailed Jenny Chua, Eric Wong, Anney Lay and Danny Lay, copied to the 1st defendant, sharing Teresa Ko’s view that the girls should meet Dr Faunce individually as soon as possible. This eventually led to the 14 December Meeting. 39.At 11:27 pm on 9 December 2011, the 2nd defendant emailed Dr Faunce suggesting that a general circular might be issues to remind the students to observe academic honesty and warn them of the consequences of dishonesty. 40.On 10 December 2011, Teresa Ko at 7:54 am emailed to Anney Lay and the 2nd defendant expressing her view that the girls should be seen by Dr Faunce as soon as possible and that the girls should not be prepped. 41.At 9:12 am, Anney Lay emailed to Teresa Ko, copied to the defendants, Jenny Chua, Eric Wong and Danny Lay, expressing her frustration at CIS and Dr Faunce having done nothing so far. 42.On 10 December 2011 at 11:49 am, Dr Faunce emailed the defendants and Alexander, replying to the 2nd defendant’s email of 9 December 2011, and expressing his appreciation of the defendants. 43.On 11 December 2011, Anney Lay emailed to the defendants, Teresa Ko, Danny Lay, Jenny Chua, Eric Wong, Rosa Ling, stating that the girls had decided that they would only go to the meeting if they all went and if Teresa Ko also went. 44.On 12 December 2011, Anney Lay at 11:07 pm emailed Dr Faunce, copied to Alexander, Jenny Chua, Eric Wong, Christina Wong/Chui King Wong, Teresa Ko and Danny Lay, asking if the school had completed the investigation and what the result was. Dr Faunce replied at 11:13 pm stating that no hour was too late for a matter of this importance. He also stressed the importance of hearing the girls in order to conclude the matter otherwise it would mean an incomplete process. 45.On 13 December 2011, the 2nd defendant emailed to Anney Lay, Teresa Ko, Jenny Chua and Eric Wong, stating that it was not about four girls against the plaintiffs or parents against parents. It was about something bigger than individual interests and was about core values. 46.At the 14 December Meeting, Dr Faunce and Alexander met with Lok Lok and her mother Christina Wong, Danielle and her mother Anney Lay, Laura and her mother Jenny Chua. Teresa Ko also attended. The transcripts of the meeting were adduced as evidence below. At 7:47 pm, Anney Lay emailed Teresa Ko, Jenny Chua, Christina Wong, Rosa Ling, Eric Wong, the defendants and Danny Lay, summarizing what had taken place at the meeting between the girls and the school management. 47.On 15 December 2011, Dr Faunce sent the school’s decision to Jenny Chua, Anney Lay and Christina Wong, stating that they had decided that there were no grounds for concluding that the 1st plaintiff cheated. 48.The parents were dissatisfied. At 3:52 pm, Anney Lay emailed Jenny Chua, Christina Wong, Teresa Ko, Eric Wong, Danny Lay, Rosa Ling and the defendants, attaching the school’s decision letter and expressing her dissatisfaction and her view that the school had already concluded the case. At 7:26 pm, Jenny Chua emailed Dr Faunce, copied to Anney Lay, Christina Wong, Alexander and Teresa Ko, expressing dissatisfaction at the school’s conclusion that there was no cheating by the 1st plaintiff despite the account from a student who said the 1st plaintiff had taken notes from his school bag, held the notes under the desk and copied from the notes. 49.On 16 December 2011, the 2nd defendant at 00:30 am emailed Dr Faunce, copied to Teresa Ko, Jenny Chua, Eric Wong, Danny Lay, Anney Lay, Rosa Ling and the 1st defendant (“the 16 December Email”) :
B5. The circular and thereafter 50.On 16 December 2011, Dr Faunce and Alexander issued a circular to all secondary school parents of CIS. After reciting the history of the incident, it pointed out two lessons to be learnt :
51.It ended with this plea :
52.What followed were further email exchanges among the parents and the defendants. The last one was written by the 2nd defendant at 9:13 am on 19 December 2011 to Rosa Ling, copied to Anney Lay, Jenny Chua, Teresa Ko, Danny Lay and the 1st defendant, commenting that she thought Dr Faunce had tried to address the issues that the parents had raised as their shared concerns although their views might differ. She thought that was a step forward and Dr Faunce had at least done something. C. qualified privilege at trial C1. The defendants’ case 53.Against the above factual backdrop, the defendants advanced their case of qualified privilege based on the existence of a common interest between them and the recipients of the Emails and the Summary. Their pleaded case is contained in [20] of the Amended Defence.[9] 54.The defendants’ pleaded case of qualified privilege covers all the offending publications. However, for the purposes of disposing of the plaintiffs’ appeal, we only need to consider the 1 December Email and the 4 December 2nd Email. For convenience, we will refer to them as “the 2 Emails”. 55.In his written submissions placed before the Judge, Mr Yu SC for the defendants summarized the common interest which they had in publishing the 2 Emails and which the recipients had in receiving them as :
C2. The Judge’s determination 56.The Judge first summarised the general principles on qualified privilege.[10] He then disposed of Mr Whitehead’s submissions on the defendants’ pleadings.[11] He next discussed at some length the legal principles on proving qualified privilege or common interest and the authorities cited by counsel.[12] 57.The Judge then turned to the surrounding circumstances leading to the publication of the 2 Emails. He noted the jury’s special verdicts that during an economics test held on 31 October 2011, Lok Lok observed some suspicious behaviour on the part of the 1st and 2nd plaintiffs; that during another economics test held on 24 November 2011, Lok Lok, Laura, Danielle and Joyce, observed certain suspicious behavior of the 1st and 2nd plaintiffs as described by Lok Lok, Laura and Danielle in the taped transcript of the 14 December Meeting; that rumours were wide-spreading among the students of CIS that the 1st plaintiff was suspected of cheating but got away with it because his father was a member of the Board of Governors of CIS; and that such rumours had reached some parents including the 2nd defendant.[13] Significantly, the Judge highlighted the following uncontroversial facts, although they were not specific findings by the jury :[14]
58.The Judge next referred to Mr Yu’s formulation of the common interest relied on by the defendants as set out in [55] above. He then noted three important points before analysing the issue of common interest :
59.The Judge then observed :
The Judge cited Hansen v Hansen[15] and Bridgman v Stockdale[16] in support of his observation. 60.Turing to address the common interest with the three senior members of school management, namely, Dr Faunce, Alexander and Mulcahy, the Judge remarked that they all had interest in CIS’s reputation, academic integrity, the school’s attitude in dealing with academic dishonesty and must have an interest in receiving the 1 December Email. The Judge then had this to say :
61.The Judge then considered in some details the common interest with the thirteen parents who received the 2 Emails.[17] For the reasons that he gave, he concluded :
62.The Judge next discussed the common interest with Ken Pemberton.[18] As noted, the defendants sent the 1 December Email to him mistakenly believing that he was still CISPTA’s president. The Judge acknowledged the well established proposition that that “A will be liable if, intending to send to B a letter in which he has defamed B, he sends it by mistake to C, or if, intending to send to B a letter in which he has defamed C, he sends it in mistake to D, even thought in the latter case the letter would have been published on a privileged occasion had it been received and read by B”.[19] However, he found that the 1 December Email was sent to him not solely because of his mistaken identity as CISPTA’s president but also because in his capacity as parent of a Year 13 student. He therefore found that he shared the common interest with the defendants. 63.The Judge then considered the common interest with the then current president of CISPTA, Barbee Chuidian.[20] Mr Whitehead argued that the president of CISPTA had no duty or interest to receive the 1 December Email anyway because it was Dr Faunce’s unchallenged evidence that CISPTA had no jurisdiction in matters concerning student discipline or academic dishonesty; and that it would be inappropriate for the Defendants to raise an individual case with CISPTA. The Judge did not accept the argument. He said Dr Faunce had unequivocally confirmed that issues relating to values, including academic integrity, had always been aired throughout the years in council meetings of CISPTA and that it was entirely correct for a parent to bring such issue to the CISPTA chairman for him to raise with school management, provided it had nothing to do with individual infraction. Having read the 1 December Email, coupled with the jury’s finding of the 2nd defendant’s two concerns and lack of malice, he found that the purpose of the Email was to raise the issue of academic integrity for the well-being of CIS, the school’s attitude towards academic dishonesty, to bring to the attention of the school the existence of the rumours and the need to contain the damage. The main purpose was not to target the 1st and 2nd plaintiffs individually. So the president of CISPTA surely had an interest in common with the defendants to receive the 1 December Email. The Judge further held that as Barbee Chuidian was also a parent of a Year 13 student, she also had a common interest in that capacity to receive the Email. 64.The Judge then proceeded to deal with a number of subsidiary points taken by Mr Whitehead.[21] Not all of them are before us. We will consider those which are shortly. 65.Turning to the 5th Offending Words, the Judge noted that the circumstances surrounding the publication of the 1 December Email also formed part of the circumstances for the 4 December 2nd Email. There were however three changes in circumstances : (a) the publication of the 4 December 1st Email; (b) the jury’s adverse findings about the defendants’ concerns and hope to Questions 3(e), (f) and (g); and (c) the Judge’s finding of a common interest among the defendants, the three senior members of the school management and the 13 parents.[22] 66.The jury found that the intervening 4 December 1st Email was published with malice. The Judge accepted that the finding of malice in a contemporaneous document is evidence which suggests that the publisher has departed from the interest which he had earlier held in common with the recipients. But having regard to the totality of the evidence, he considered the impact of the publication of the 4 December 1st Email with malice 36 minutes before the 4 December 2nd Email on the defendants’ case of common interest, insignificant.[23] 67.By answering Questions 3(e), (f) and (g), the jury respectively found that :
68.The Judge rejected Mr Whitehead’s argument that these findings were fatal to the defendants’ case of qualified privilege as they demonstrated beyond doubt that the defendants had no duty or interest in publishing the 4 December 2nd Email. He was of the view that the evidence in favour of existence of common interest as identified by Mr Yu was so compelling that in the totality of the evidence these adverse findings by the jury dwarfed into insignificance.[24] 69.The Judge explained why his earlier finding that on 1 December 2011 the defendants and the parents including Anney Lay held a common interest in preserving the reputation of CIS, academic integrity, and in the school’s attitude towards academic dishonesty was significant :[25]
70.The Judge rejected Mr Whitehead’s submissions on pleadings and the failure to call Anney Lay to give evidence. He then referred to the specific circumstances surrounding the publication of the 4 December 2nd Email, namely, according to the 2nd defendant’s unchallenged evidence, Anney Lay suggested to her to talk to the head of Year 13, who was also a parent of a student of that year and that pursuant to that suggestion, she wrote the 4 December 2nd Email to Mulcahy and copied it to Anney Lay. The Judge found :
71.In light of what he found, the Judge considered the jury’s findings against the 2nd defendant in Questions 3(e), (f) and (g) and the finding of malice in publishing the 4 December 1 Email dwarfed into insignificance. He found that the 2nd defendant had not departed from the interest which she had held in common with Anney Lay since 1 December 2011.[26] 72.Lastly, the Judge concluded :[27]
D. Discussion on qualififed privilege D1. Two broad grounds of appeal 73.The plaintiffs raised a total of 22 grounds of appeal in their notice of appeal. Two broad points arose from Mr McCoy’s written and oral submissions :
We will first consider the pleading point. D2. The pleading point 74.Referring to the defendants’ pleaded case in sub-paragraph (14) to (15A) of [20] of the Amended Defence, Mr McCoy submitted that the only pleaded defence was the common interest of containing damage to the reputation of CIS. As pleaded there is in fact no basis to argue, as Mr Yu did in his written submissions, that academic integrity and proper disciplining was a common duty or interest. The Judge therefore erred in failing to appreciate that the pleaded defence is materially different to Mr Yu’s formulation of common interest. 75.Mr McCoy further relied on Mr Pow’s statement to the Judge that his case on qualified privilege was based on the particulars as pleaded and how he formulated the questions to the jury on matters pertaining to qualified privilege, which was based on the defendants’ pleaded case. Mr McCoy therefore submitted that the Judge ought to have proceeded on the only basis that the legitimate corresponding interest or duty was the containment of the damaging rumours by the school. When the Judge accepted at [59] of the Decision Mr Yu’s submissions as full of common sense, he failed to distinguish and analyse the materiality of a pleading of qualified privilege on the basis of containing damaging rumours as opposed to academic integrity. Mr McCoy went on to complain that the Judge erred when he approached and determined common interest in the way as he did and accepted Mr Yu’s formulation without analysis; and that the Judge had failed to identify and properly analyze the common interest relied on by the defendants. 76.Before the Judge, Mr Whitehead argued that that Mr Yu’s formulation of common interest had not been pleaded. However, Mr Whitehead’s argument was emphatically rejected by the Judge who found that the pleadings were adequate.[28] The pleading point and the arguments following from it now taken by Mr McCoy is in fact another attempt of running Mr Whitehead’s same argument which failed below. For the reasons we give below, Mr McCoy’s attempt must also fail. 77.The purpose of pleadings and importance are well known.[29] They need no repetition here. In the case of defamation, a defendant who wishes to rely on the defence of qualified privilege must specifically plead the defence and that he should allege and prove the facts and circumstances which he claims bring him within the protection of the privilege : Gatley.[30] The defendants’ pleaded case of common interest under attack is in subparagraph (14) to (15A) of [20] of the Amended Defence. They are reproduced here for easy reference :
78.Subparagraph (14) is based on the rumours pleaded in subparagraph (13), namely, the 1st plaintiff was suspected of having cheated in a test but he got away with it because his father was a member of the Board of Governors CIS. As pleaded, academic dishonesty and the school’s perceived failure to properly deal with it plainly form the crux of the rumours. Subparagraph (14) then goes on to plead three concerns arising from the rumours which the school management ought to properly address :
79.Subparagraph (15) pleads that in sending the 1 December Email to Ken Pemberton, the defendants hoped that he would bring up “the aforesaid concerns”, that is, those pleaded in subparagraph (14), with Dr Faunce and that the school would do two things. One is to act to contain the damage to CIS’s reputation. Another is to handle the whole issue appropriately. On a proper reading, “the whole issue” is plainly not confined to containment of the damage to CIS’s reputation; otherwise it would be a mere repetition. It must also include all the concerns pleaded in subparagraph (14). 80.Subparagraph (15A) refers to the defendants’ same hopes pleaded in subparagraph (15), although in a reverse order. 81.In our view, Mr Yu’s formulation encapsulates and attenuates the essence of the defendants’ pleaded case of common interest. There is no inconsistency between the two as contended. We have no hesitation in rejecting Mr McCoy’s pleading point and all the arguments based on it. 82.For completeness, we also reject Mr McCoy’s submission that the Judge, having failed to resolve which alleged common interest was engaged, never properly analysed whether the circumstances resulted in a corresponding duty by the recipients. His submission is based on the false premise that the Judge never made a clear identification of what was the legitimate common interest. The Judge had clearly accepted and based his analysis on the common interest as per Mr Yu’s formulation. 83.We next turn to the points taken by Mr McCoy on common interest and reciprocity. D.3 Common interest and reciprocity D3.1 Some basic propositions 84.Qualified privilege stems from the public interest to protect free speech. As Lord Nicholls explained in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at p 195A – B thus :[31]
85.For an occasion to attract qualified privilege, there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson put it in Adam v Ward [1971] AC 309, at p 334 in these terms :
86.In Reynolds v Times Newspapers Ltd,[32] Lord Nicholls also stressed :
87.The existence of the common interest to found an occasion of qualified privilege is to be determined objectively : Adam v Ward, ibid. The interest must be real on an objective assessment. It is not sufficient that the maker of the defamatory statement honestly believes that he has a legitimate duty or interest to make it or the recipient to receive it, although such belief may have a bearing on malice : Hebditch v MacIlwaine [1894] 2 QB 54, per Lord Esher, MR at p 59. 88.To recap, the common interests relied on by the defendants are :
89.Mr McCoy took a number of points in arguing that no such common interests existed between the defendants and the recipients of the 2 Emails. D3.2 Academic integrity 90.The first point taken by Mr McCoy concerns the important question whether academic interest can properly constitute common interest in the circumstances of the present case. 91.Mr McCoy argued that academic integrity is of itself not capable of forming a common interest in the present case. He argued that the Judge fatally erred in failing to appreciate that in the circumstances of the present case, there was no issues of academic dishonesty since there was no question of the 1st and 2nd plaintiffs actually cheating and getting away with it with influence, as alleged in the defamatory statements. Such statements were all held to be defamatory and without factual basis; and no defence of justification was ever pleaded. There was therefore never a legitimate common interest in protecting academic integrity. Put bluntly, Mr McCoy’s argument is that since there was factually no academic dishonesty in the form of cheating by the 1st and 2nd plaintiffs, the need to protect academic integrity did not arise. With respect, this is too narrow a view about academic integrity. 92.Academic integrity embodies the core values of an educational institution. Such core values range from promotion and maintenance of high academic standard, to perseverance and honesty in the pursuit of knowledge and research, and to avoiding academic misconduct such as cheating or plagiarism. When it comes to the protection of academic integrity for CIS, the fact that the 1st and 2nd plaintiffs had not cheated is beside the point. For it does not detract from the fact that their behaviour, as confirmed by the four students three of whom came forward to relate the matter to the school management, did at the time arouse suspicion of cheating among the students which prompted wide-spread rumours and concerns of the parents. The circumstances then prevailing clearly called for immediate action to be taken by the school management to look into the matter with a view to finding out the truth and if necessary to take appropriate steps to prevent academic dishonesty. This gives rise to the common interest for protecting academic integrity for CIS. D3.3 Disregarding the jury’s special verdicts 93.Mr McCoy cited the well established proposition that the question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury; and if there are question of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion : Hebditch v MacIlwaine, supra, per Lord Esher at p 58; Adam v Ward, supra, per Lord Finlay LC at p 318. He complained that the Judge had erred in disregarding the jury’s special verdicts pertaining to the publications of the 2 Emails, which rendered his finding that they were privileged unsustainable. Mr McCoy had the following jury’s special verdicts in mind. 94.When the 2nd defendant sent the 1 December Email to the 8 unrelated parents, the jury found that :
95.When the defendants sent the 4 December 2nd Email to Mulcahy and Anney Lay, the jury found that :
96.Mr McCoy submitted that the jury had clearly found that the defendants did not have the common interest as pleaded in sending the 2 Emails. The occasions of publishing the 2 Emails were not privileged. The Judge erred in failing or refusing to give effect to the jury’s findings, mischaracterizing the same as “dwarfing into insignificance.” He failed to give proper regard to the jury’s special verdicts : Grobbelaar v News Group Newspaper Ltd [2002] 1 WLR 3024. Relying on Kime v Hamilton Radical Electric R W Co 64 DLR 191, Mr McCoy submitted that the Judge cannot supplement the jury’s findings and thereby reversing them. With respect, we disagree with Mr McCoy’s submissions. 97.As can be readily seen, the jury made specific findings on (a) the defendants’ subjective belief and hope at the time of the publication of the 2 Emails; and (b) the effect of the circulation of the 2 Emails on the damage to the plaintiffs’ reputation. 98.However, as said, whether or not an occasion is privileged is to be determined objectively. The defendant needs only prove the facts and circumstance necessary for the existence of the privilege. His personal belief or hope is simply irrelevant : Gatley, supra, [33.24]. Here, the jury’s special verdicts on the defendants’ subjective belief or hope, or the lack of it, may be relevant to the question of malice. But they are immaterial to the consideration of qualified privilege. Thus analysed, the Judge did not commit any error when he said that the jury’s special verdicts, objectively, dwarfed into insignificance in the overall circumstances of the case. The Judge did not supplement or reverse the jury’s special verdicts as contended. He simply did not give any weight to them in considering the question of qualified privilege. And he was perfectly entitled to do so as a matter of law. 99.As to the effect of the circulation of the 2 Emails on the plaintiffs’ reputation, it is irrelevant to the existence of common interest and reciprocity between the defendants and the recipients. D3.4 Disregarding unchallenged material evidence of Dr Faunce and Alexander 100.Mr McCoy complained that the Judge had erred in disregarding the following unchallenged material evidence which clearly shows that the defendants had no duty or interest in sending the 2 Emails and the recipients had no corresponding duty or interest in receiving the same :
101.Mr McCoy also complained that Judge had failed to give any or any adequate reasons for disregarding such unchallenged material evidence. 102.Again, we respectfully disagree with Mr McCoy’s submissions. 103.The above evidence of Dr Faunce and Alexander must be understood in its proper context and in the totality of their evidence. Dr Faunce’s evidence was his first reaction to seeing the 1 December Email and his opinion on what a parent should do if he had a complaint concerning the conduct of a student. He was not addressing the wider concerns that the Judge had in mind, namely, academic integrity, preservation of the image and reputation of CIS and the school attitude towards academic dishonesty. Similarly, Alexander’s evidence about the proper channel of reporting did not deal with the Judge’s wider concerns. Dr Faunce’s evidence quoted above on the role of CISPTA must be understood with the totality of his evidence in mind. As the Judge pointed out at [79] of the Decision, it is Dr Faunce’e evidence that issues relating to values, including academic integrity have always been aired throughout the years in council meetings of CISPTA and that it was entirely correct for a parent to bring such issue to the CISPTA President to raise it with the school management, provided it has nothing to with individual infraction. 104.We do not consider that the Judge had disregarded Dr Faunce’s or Alexander’s evidence as contended. Quite to the contrary, a careful reading of his Decision shows that he had had regard to their evidence as a whole and also as part of the totality of the evidence before him in determining if the common interest and reciprocity existed. 105.On confidentiality, Alexander’s evidence might have a point generally. However on the facts of the present case, we fail to see how it could possibly help the plaintiffs. The plaintiffs’ suspicious behaviour was observed by the reporting students. And prior to the publication of the 1 December Email, rumours about the plaintiffs had been wide-spreading already. The matters were already in the public domain, as it were. Realistically, confidentiality, which might otherwise be desirable, could no longer work. 106.Finally, we do not consider there is any merit in the submission that the Judge had failed to give reasons in disregarding the unchallenged evidence of Dr Faunce and Alexander. The Judge had taken into account the totality of the evidence. He had given a full and well-reasoned judgment on qualified privilege. The plaintiffs cannot possibly complain that they did not know why the defendants succeeded on qualified privilege. 107.We now turn to Mr McCoy’s other arguments targeting at the parents as recipients. There can be no doubt that the three senior members of school management had a duty and interest corresponding to the defendants’ interest in receiving the 2 Emails. However, the parents, Mr McCoy reasoned, did not have the corresponding interest or duty to receive the 2 Emails. D3.5 No authority to address the issue 108.Mr McCoy submitted that as a matter of law, only persons who are in position of authority to address the issue have the duty or interest in receiving the defamatory statement. Others who are merely interested in receiving the statement do not. In this respect, he cited a number of authorities in support.[44] Mr McCoy submitted that were it otherwise, qualified privilege would be abused for mere perpetuation of defamatory rumours, which is exactly the consequence of the present case. Mr McCoy then went on to draw a distinction between, on the one hand, the school management who was involved in and has the authority of internal disciplining and on the other, parents who had no such involvement and authority. On his analysis, only the school management had a corresponding duty to protect academic integrity to receive the 2 Emails whereas the parents did not. So, Mr McCoy complained that the Judge had failed to appreciate the parents’ role as recipients and draw the distinction as he did. 109.With the greatest respect, the blanket proposition advocated by Mr McCoy that duty or interest only exists with persons who are in position of authority to address the issue must be rejected. As a general proposition, if Mr McCoy were correct, it would prohibit all bona fide communication and discussion among persons who have a common interest but not a duty or authority to address the issue in disseminating and receiving the statement although it is defamatory. This goes against the public interest that the law of qualified privilege seeks to protect, namely, freedom of speech. 110.With respect to parents involving in discussions about matters concerning the school where their children are attending, whether or not the occasion is privileged must be approached with the modern social conditions in mind. 111.In determining whether an occasion is privileged, the court has regard to all the circumstances, Reynolds v Times Newspaper Ltd, supra at p 195C. As part of the common law, the law of qualified privilege is developed to respond to the current societal needs and conditions. Thus the circumstances for the purposes of determining qualified privilege must be viewed with today’s eyes. As Lord Nicholls in Reynolds v Times Newspaper Ltd put it at p 195D :
112.It is well recognised that parental involvement in a school’s affairs is beneficial to the management and operation of the school overall. It is indeed a common feature among secondary schools in Hong Kong, of which we can take judicial notice, to have a platform established, usually in the form of a teacher-parent association, to encourage and facilitate parental involvement of the school’s affairs. When we tested Mr McCoy’s proposition at the hearing, he was forced to submit that while parents were entitled to raise matters which might affect the school’s reputation or management, such as suspected cases of academic dishonesty, with the school management, they were not allowed to discuss the matters among themselves. This defies logic and common sense to say the least. More importantly, it also thwarts parental involvement in the school management because it prevents concerned parents from raising matters affecting the school with the management in a concerted way through discussions among themselves. 113.For the above reasons, we as a matter of principle reject Mr McCoy’s proposition, whether as a general one or a specific one in an educational setting. We therefore do not see the need to discuss the cases cited by him in support of his arguments. In any event, having read the cases, we do not think they have laid down such a blanket proposition as he contended. It is true that in some cases like Lovejoy v Whitcom 174 Mass. 586, 55 N.E 322 (1899) which he relied on, where the publication of the defamatory statement to persons who were under no duty or authority to address the issue was held to be not protected by privilege. But equally, there are cases which go directly contrary to Mr McCoy’s proposition. For example, in Bridgman v Stockdale [1953] 1 WLR 704, which Mr Yu cited, an invigilator uttered an oral remark to the class of students that one of them had cheated. The court found that there existed between the invigilator and his class of students “the common interest to ensure that the examination was carried out properly and fairly and to ensure that one person did not have an advantage over the others.” Plainly the students did not have the authority to address the issue of cheating but the court held that the utterance of the remark by the invigilator was covered by qualified privilege. Mr McCoy submitted that Bridgman v Stockdale can be regarded as a case in which the publication of the defamatory statement was fairly warranted by a reasonable occasion or exigency. Even assuming that to be the case, it does not detract from the court’s finding that qualified privilege existed even though the recipients of the defamatory statement were not in a position of authority to address the issue. In our view, the authorities simply do not lay down the wide-sweeping proposition Mr McCoy now contended. As rightly submitted by Mr Yu, all that the authorities have established is that whether the requisite duty or interest exists is always a fact-sensitive question to be determined by the particular circumstances of the case. 114.With respect, when Mr McCoy relied on some of judicial pronouncements that he derived from the cases to support his proposition, he has failed to appreciate (a) that time has moved on from the older authorities and the current societal condition and need of involving parents in school affairs put the consideration of common interest in a context similar to the present case on a very different footing; and (2) that whether or not common interest and reciprocity exist is always a fact-sensitive question and judicial utterances in different circumstances albeit in an educational setting do not really assist him. 115.The facts of the present case speak for themselves. CIS encourages parental involvement in the school affairs. CIS has always tried its best to be open-minded and welcomes parental involvement and contributions. The school-parent relationship is very close and successful. Parents, as part of the wider CIS community, have a strong sense of belonging and wide concern for the well-being and reputation of CIS in general. More specifically, through the CISPTA, issues relating to values of the school including academic honesty had been aired throughout the years in council meetings of CISPTA. The need to facilitate and encourage parental involvement in CIS’s affairs including the matters concerning academic integrity clearly supports the defendants’ case that the defendants and the recipient-parents had the common interest relied on in the publication and receipt of the 2 Emails. 116.Finally, Mr McCoy submitted that the Judge erred in failing to hold that publication of the 2 Emails, untrue defamatory statements, to parents who are not in a position to fulfil the interest offends the principle that the communication should be fairly warranted by “any reasonable occasion or exigency”. For the reasons we give, we reject this argument. D3.6 Spreading rumours without verification 117.Mr McCoy submitted that for an occasion to attract qualified privilege, the interest involved must be a matter of substance and not a mere interest in gossip. As the parents were not in a position to receive the 2 Emails because they had not no authority to address the issues, the only reason for receiving them would be for gossip only. 118.Mr McCoy’s submissions consist of two points. The first is the parents who have no authority to address the issue have no interest in receiving the 2 Emails. That we have just rejected. The second is that there is no interest in gossip that the law of qualified privilege protects. 119.It is trite that the law of qualified privilege does not recognise any interest in gossip. The law only recognises some interest of substance. As Higgins J explained in Howe v Lees (1910) 11 CLR 361 at p 398 :
120.In a similar rein, Gillard J said in Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 at [215] :
121.The difficulty with Mr McCoy’s argument is that the 2 Emails were not mere gossips. They were based on the observation of the plaintiffs’ behaviour as seen by their fellow students. And they raised legitimate concerns which the parents had in common. The Judge clearly did not find that there was an interest in gossips. 122.On this topic, the last point taken by Mr McCoy is that the defendants had not taken any step to verify the truth of the rumours concerning the plaintiffs when they published the 2 Emails. He relied on Cambridge v Makin [2011] EWHC 12 (QB). 123.There is no general proposition of law as such that qualified privilege could not be established unless steps had been taken to verify the defamatory statement : see Cambridge v Makin, supra, per Tomlinson LJ at [51]-[52]; Kearns v General Council of the Bar [2003] 1 WLR 1357, per Simon Brown LJ at [34]. (The position is of course different for responsible journalism where Reynolds v Times Newspaper Ltd applies.) It really depends on the actual circumstances whether qualified privilege could not be established in the absence of an attempt at verification. 124.Here, the 2nd defendant’s unchallenged evidence is that she learnt of the rumours from her daughter. She believed her daughter and there is no evidence to suggest that she should not. The rumours were then wide-spreading. Any suggestion that the defendants should take steps to verify the rumours would mean that they would have to carry out some form of inquiry themselves. But that really fell within the exclusive purview of the school management. The suggestion that the defendants should take it upon themselves to carry out such inquiry which only the school management had the authority to do is unrealistic. D3.7 Publication to unrelated parents 125.Mr McCoy submitted that the Judge erred in failing to appreciate the position of some unrelated parents who had received the 2 Emails. For example, when Ken Pemberton and Fanny Wong received the 1 December Email, they were total strangers to the defendants. No pre-existing relationship existed between the defendants and those unrelated parents. 126.As a matter of law, absence of a pre-existing relationship is not fatal to the defence of qualified privilege. The authorities establish the proposition that the law is more ready to attach qualified privilege for communications within an existing relationship than to those between strangers : Kearns v General Council of the Bar Council, supra, per Simon Brown LJ at [30]. Where no pre-existing relationship exists, it will usually be necessary for the court to examine by factual inquiry all the circumstances surrounding the publication before coming to a conclusion on the question whether the occasion attracts qualified privilege : Cambridge v Makin, supra, per Tomlinson LJ at [39]. 127.Here, contrary to Mr McCoy’s submission, the Judge was fully aware that he had to consider whether there was interest as between the particular groups of recipients involved. He also took into account the fact that there was no pre-existing relationship between the defendants and some parents. D3.8 The 1 December Email 128.Mr McCoy’s complaint is directed at [76] – [77] of the Judge’s Decision.[45] He submitted that the Judge erred in failing to apply the principle which he had identified to the publication of the 1 December Email to Pemberton, because there was no plea that Pemberton was a parent of a Year 13 student. The Judge also erred in holding that the defendants had put in an alternative plea in [20(15)] of the Amended Defence that the publication of the 1 December Email was made to Pemberton and Fanny Wong as parents of a Year 13 student when in fact there was no such plea in [20(15)]. 129.This is a highly technical point devoid of merits because the defendants did in fact plead in [20(6)] of the Amended Defence that Pemberton and Fanny Wong were parents of a Year 13 student. 130.Mr McCoy then submitted that the Judge erred in failing to hold that the subsequent sending or forwarding of the 1 December Email to the 8 unrelated parents would not contain the damage to the reputation of CIS, but caused, exacerbated or perpetuated such damage. However, the effect on CIS’s reputation is irrelevant to the existence of common interest and reciprocity. D3.9 The 8 December Meeting 131.Mr McCoy complained that in determining whether the 2 Emails were subject to qualified privilege, the Judge erred in taking into account the 8 December Meeting, which is a post-publication event. 132.Mr Yu submitted that the defendants had made it clear that they need not rely on the events after 4 December 2011 to establish the factual background and circumstances for the purposes of establishing the defence of qualified privilege.[46] They relied on such evidence to show that the recipients of the 2 Emails all regarded the matter as of sufficient importance and that, therefore, all parents involved had a common interest in the receipt of the communications. Such evidence is admissible : see Gatley, supra, [33.24]. We agree with Mr Yu. 133.Mr McCoy then argued that if the 8 December Meeting is relevant, the Judge erred in disregarding the evidence of Alexander that the meeting was “unusual” and “unprecedented” as disciplinary matters should be handled by CIS in a confidential manner; and Dr Faunce’s evidence that the 8 December 2011 Meeting was “unprecedented” in his 41 years of education”. 134.However, although the 8 December Meeting was unprecedented, Dr Faunce himself had written in his email dated 8 December 2011, describing the attending parents as “constructive parents” who had legitimate interest and concern in academic integrity, the image and reputation of CIS and the school’s attitude towards academic dishonesty. He also expressed his appreciation of the defendants in another email to the defendants and Alexander two days later. 135.When all the evidence concerning the 8 December Meeting is properly understood, the complaint that the Judge had failed to give proper weight to the fact that it was unprecedented has little weight. D4. Conclusion on qualified privilege 136.For the above reasons, all the arguments raised by Mr McCoy attacking the Judge’s ruling that publication of the 2 Emails is protected by qualified privilege must fail. In our view, the careful and detailed reasoning and analysis adopted by the Judge in arriving at his ruling is impeccable. We agree with him entirely. We would add that the circumstances surrounding the publication of the 2 Emails overwhelmingly support the defendants’ case of qualified privilege. We uphold the Judge’s ruling. E. Malice E1. The law 137.The starting point for a review of the law on malice is the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135 at p.149 to 151. The basic premise, as stated by His Lordship at p.149E to F : is that the immunity afforded by qualified privilege is lost if the occasion giving rise to it is misused :
138.Lord Diplock made it clear that knowledge of injury to a plaintiff 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 : Horrocks v Lowe, supra at p.149G. 139.Mr Yu advanced the following propositions as general principles on malice in his written submissions and they are supported by the authorities :
140.Mr McCoy did not dispute these propositions except he submitted orally that (i) knowledge of falsity; (ii) recklessness; or (iii) dominant improper motive are three alternative ways to prove malice. We therefore have to examine proposition (e) at greater length. As we shall explain, in the present appeal, the crucial issue is the directions on knowledge of falsity and recklessness. 141.Before we discuss proposition (e) and recklessness, we should also mention another aspect where Mr Yu and Mr McCoy had some disagreement. Mr Yu submitted that the Judge was obliged to direct the jury that malice is extremely rare and such a finding calls for cogent evidence which must overcome the inherent unlikelihood of the defendants acting dishonestly or with the dominant motive to injure as honesty is presumed. Mr McCoy did not dispute that such direction could have been given but submitted that as this was not a point taken at trial by counsel for the defendants (at that stage, Mr Yu had not come into the picture), it was not a point open to them on appeal. 142.By reference to the closing submissions made on behalf of the defendants, Mr Yu satisfied us that counsel conducting the trial had indeed referred to the rarity of a finding of malice. In support of his submission that a direction to such effect should be made, Mr Yu referred to HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at [70] and Horrocks v Lowe, supra, at p.150H to 151D where Lord Diplock said :
143.Lord Diplock also alluded to an exception at p.151D to H but it is not pertinent for present purposes and Mr McCoy placed no reliance on it. It cannot be disputed that the Judge did not give direction to these effects. However, in our judgment, instead of treating this as a separate ground, we should examine the adequacy of the directions by the Judge as a whole to assess whether a case of misdirection which warrants our intervention with the verdict of the jury on malice has been made out. 144.Coming back to the question of knowledge of falsity or recklessness as separate heads of malice, having considered some modern authorities on the topic, our conclusions are as follows :
145.In light of the insufficiency of recklessness as a ground for destroying the immunity arising from qualified privilege in the present appeal, the judgment of Gaudron, McHugh and Gummow JJ in the High Court of Australia in Roberts v Bass, supra, at [84] bears repetition :
146.Their Honours referred to the judgment of Lord Esher MR in two English authorities (Royal Aquarium v Parkinson [1892] 1 QB 431 at 444; Clark v Molyneux (1877) 3 QBD 237 at 247) to explain how recklessness had to operate together with other factors such as unreasoning prejudice or anger in establishing malice. At [86] and [93] to [95] of Roberts v Bass, supra, their Honours explained in Horrocks v Lowe, supra, Lord Diplock could not have intended to change the law and he only used the term “reckless” and “indifference to truth and falsity” in the sense of “wilful blindness” and His Lordship’s reference to lack of honest belief meant knowledge of falsity. 147.The significance of the precise meaning of lack of honest belief was explained at [97] :
148.These principles were discussed and applied in Gross v Weston [2007] NSWCA 1, Rackham v Sandy [2005] EWHC 482 [18] to [21]. E2. The evidence on the state of mind of the defendants 149.In light of our discussions below on the application of the law in the present case, it is necessary to set out at some length the relevant evidence on the state of mind of the defendants at the material times. Mr McCoy placed much emphasis on the contents of the Emails in question and the three exonerations by the school in support of his case on malice. However, since the state of mind of a person is ultimately a question of inference to be drawn from his acts and words, it is necessary to have regard to other relevant circumstances and conducts. 150.There was no evidence of the defendants having any dealings with the plaintiffs before this incident. As submitted by Mr Yu there was also no evidence of any prior grudges between them. On the evidence, the defendants (mostly on the part of the 2nd defendant) intervened upon being told of the incident by her daughter. Thus, the Judge directed the jury as follows at p.67-68 of the transcript of Day 17 regarding the 1 December email from the defendants to Ken Pemberton and Fanny Wong :
151.The jury found that there was no malice in respect of the publication of the 1 December email. The jury further found the defendants sent that email in the hope that the concerns would be brought to the attention of the school management and the school would act to contain the damage to the reputation of CIS and to handle the issue appropriately. 152.Between the 1 December Email and the 4 December 1st Email from the defendants to Justin Alexander, the head of the secondary section of CIS (which the jury found to be published with malice) the following significant events occurred. 153.Amongst those to whom the 1st defendant had sent the 1 December Email was the current chairperson of the CISPTA, Barbee Chuidian, who on 2 December 2011 informed the defendants that Justin Alexander would get in touch with them. 154.In the morning of 3 December 2011, there was a telephone conversation between the 2nd defendant and Justin Alexander. There was a factual dispute as to the contents of that conversation. We were referred to the relevant part of the evidence in the transcript. Mr Alexander testified on Day 4, and his evidence on this conversation was at internal p.14-17 of the transcript. For the present purposes, the main point was that Mr Alexander said he had told the 2nd defendant the processes that the school had undertaken regarding the incident which the judge referred to as the two exonerations in his directions to the jury. The teacher involved had examined the paper. He spoke with the students who raised the concern and also spoke with 1st and 2nd plaintiffs. The teacher told Mr Alexander that there was no collusion or cause for concern. After that, the senior management (Brian Mulcahy and Claire McQuillan) also conducted further interview with the students and spoke with the teacher and 1st and 2nd plaintiffs. They also felt that there was no case to answer. 155.Mr Alexander gave evidence as to the immediate response of the 2nd defendant at the conversation, which is of some importance in this appeal :
156.The 2nd defendant’s evidence was that she had not asked about the processes and Mr Alexander did not tell her the details of the two exonerations though she accepted that he said the school had already done what should be done and she could not remember every single sentence in the conversation due to the lapse of time.[48] 157.As recited earlier, the 2nd defendant received information from Anney Lay by way of an email from her at 00:16 am on 3 December 2011. Though the email was sent at the early hours of that date, the evidence was that she did not read it until after she had the conversation with Mr Alexander. She explained the situation in this regard in her oral evidence[49] and this was supported by the 2 emails she sent to Anney at 11:37 am and 11:52 am on 3 December respectively. We have alluded to the contents of the email of 00:16 am. The significance in the present context is that in addition to being given more information about the incident, the 2nd defendant was told that this was not the first time. Anney wrote about having a meeting with Brian Mulcahy, as Head of the 13th Year :
158.The 2nd defendant also had a conversation with Anney which took place after her conversation with Mr Alexander in which Anney gave her the same message.[50] She explained how this new information had heightened her concern and prompted her to write the 4 December 1st email :
159.We have gone through these parts of the evidence at some length because it is the crux of the defendants’ case on the genesis of the 4 December 1st Email and the jury should be directed specifically to their relevance and significance in the context of assessing the difficult question of malice. The acquisition of new information about a previous incident must have an impact in the assessment of the 2nd defendant’s honest belief when she wrote to Mr Alexander after the conversation on 3 December. 160.We have set out the contents of the 4 December 1st Email above. It referred to the 2nd defendant learning about the previous incident after the conversation with Mr Alexander on 3rd December and in this email she qualified her request by the phrase “if this story is true”. She gave an explanation in her evidence as to why she put down that qualification : she did not know if that was true and her concern was about the perception.[51] 161.With regard to the previous incident, Mr Alexander and Dr Faunce did not dispute that they had not come back to the 2nd defendant on whether there was such an incident and what was the outcome.[52] 162.The query regarding the previous incident, unless it was disingenuous (and all the contemporaneous emails shows that the query by the 2nd defendant was genuine), and the subsequent lack of response are, in our judgment, relevant to the assessment of the subjective intent of the 2nd defendant in her subsequent conduct and correspondence. Dr Faunce’s evidence was that Mr Alexander set up the 8 December Meeting as a follow-up on this query,[53] implicitly acknowledging that it was not a matter addressed over phone before that date. The outcome of the 8 December Meeting was the agreement by Dr Faunce to look further into the matter which led to the interview on 14 December 2011. Notwithstanding the evidence given on 14 December 2011 by Lok Lok regarding the earlier test in October 2011, according to Mr Alexander the school did not investigate it as it had not been reported at that time.[54] Again, the jury should be directed in these regards in the context of assessment of malice because these matters could form a rational basis for the parents’ lack of faith in the exonerations by the school. 163.There was a meeting on 5 December organized by Anney Lay with Brian Mulcahy. At the invitation of Anney, the 2nd defendant also attended the same. Another parent was also present. Neither Brian Mulcahy nor Anney Lay gave evidence at the trial. However, an email from Anney Lay to two other parents (Fanny and Rosa) of 5 December 2011 was in the evidence. In that email, she explained the purpose of the meeting :
164.Anney Lay also recounted from her perspective the unsatisfactory situation in the lack of satisfactory handling of the incident by the school management and the concerns of the parents. She referred to the works of the 2nd defendant in these words :
165.Hence, as far as the parents were concerned, there had not been any satisfactory account by the school and there were to be continuing dialogue in the form of meeting with Dr Faunce. Anney Lay endorsed the efforts of the 2nd defendant, whom she saw as pursuing the matter to raise legitimate concerns to the school :
166.It can be said that this was Anney Lay’s own perception, who might be biased as her daughter was one of the students involved. However, in this respect, Anney Lay was not alone as the evidence included participations in the discussion by other parents, three of them Teresa Ko, Jenny Chua and Fanny Wong gave evidence at the trial. 167.Teresa Ko’s son was studying at CIS (but not one of the students involved). She was the recipient of the 6 December Email. Mr Alexander arranged a meeting for the parents with Dr Faunce which was to take place on 8 December. At the suggestion of Anney Lay, the 2nd defendant approached Teresa Ko as she was a lawyer by profession. This was the context in which that email was sent. She testified that she thought the rumours were getting out of hand and she agreed to meet up with Dr Faunce with the good intention of bringing a stop to it. She thought the same of all the parents involved.[55] She gave evidence about the 8 December Meeting. She took part as a parent rather than a lawyer. The meeting was conducted in a civilised manner and ended in good spirit.[56] At the end of the meeting, Dr Faunce was convinced that he should take up the matter himself. She was also present at the meeting on 14 December 2011 when the students involved were interviewed again in the presence of Dr Faunce. She did not think there was any bad faith on the part of any participating parents.[57] 168.In an email of 7 December 2011 in the early hours, Anney Lay queried whether meeting Dr Faunce on 8 December could achieve anything.[58] In her reply to Anney Lay, the 2nd defendant explained why she got involved in these words :
169.She also explained why she wrote the 4 December 1st Email :
170.These were contemporaneous words written at a time when the 2nd defendant did not contemplate legal proceedings would be brought against her. Hence, the jury should be directed to pay attention to it as part of the evidence of the then intention of the 2nd defendant. 171.The good faith of the parents, including the defendants, in participating at the 8 December Meeting was accepted by Mr Alexander in his evidence[59] though he was disappointed and upset in receiving the 4 December 1st Email.[60] More relevantly, on the defendants’ belief, Mr Alexander testified that at the meeting of 14 December Meeting, the parents believed the evidence of the reporting students and he did not see anything wrong about that.[61] 172.Though Dr Faunce did not believe it was appropriate for parents to be prescriptive as to how the school was to be run and thus found the 8 December Meeting exceptional and felt pressure on his part, he also wrote to the 2nd defendant on 8 December after the meeting showing appreciation for the genuine concern for the school and students.[62] Dr Faunce’s objection to the course of event, as testified by him, was that throughout the emails there was a presumption that in fact cheating had occurred.[63] He did not suggest that the defendants were advancing such allegations with the knowledge that they were false. He referred to the mentality underlying the relevant emails as “a kind of righteous conviction” that the school had failed to act with integrity. He accepted that there were genuine efforts on the part of the school and the parents to be open and cordial during that time.[64] 173.After the interview of 14 December 2011, Dr Faunce gave the third exoneration on 15 December. However some parents were dissatisfied and we already alluded to some of their reactions. The 2nd defendant wrote the 16 December Email, in which she stated :
174.On 16 December 2011, Dr Faunce also issued a newsletter to the secondary school community in which he gave an account of the incident. In that newsletter, Dr Faunce referred to the widespread speculation and the suggestion that the school did not do anything, and said :
175.Dr Faunce emphasized that CIS sought to embed a culture of deep and consistent academic honesty. He also urged parents to respect confidentiality and ended by a plea to parents to understand the policies and processes in place when offering constructive criticism. 176.After reading that newsletter, the 2nd defendant acknowledged the efforts of Dr Faunce in an email of 19 December to Rosa Ling copied to other parents. She said :
E3. The misdirection by the judge on malice 177.The Judge’s direction to the jury on malice starts from internal p.54 of the transcript on Day 17 of the trial. It runs to p.69. After directing the jury correctly that the burden of proof is on the plaintiffs and malice is a matter of subjective intention, the Judge invited the jury to examine the intention of the defendants by drawing inferences from their acts, conduct or words or emails. He then explained the meaning of malice to the jury in these terms :
178.As discussed earlier, it is not correct in law to refer the lack of honest belief as a separate head of malice. Further, though absence of honest belief in the truth of the statement was an expression used in Horrocks v Lowe, supra, for the reason canvassed in Roberts v Bass, supra, it should strictly be interpreted to mean knowledge of falsity. Mere lack of knowledge of truth is not sufficient. Thus, we have to examine the directions as a whole to ascertain if the jury were clearly directed on this rather subtle distinction so that they did not fall into the error identified at [97] of Roberts v Bass, supra. 179.The Judge then addressed the jury on the plaintiffs’ case. Their case was that the defendants intended to injure the plaintiffs or alternatively the defendants did not honestly believe in the truth of the statements because of the exonerations of the children by the school. He also explained that the improper motive had to be the dominant motive and the mere knowledge that the statements would injure the plaintiffs is not evidence of dominant improper motive to injure. 180.The Judge summarized the parties’ respective case on intention to injure as the improper motive at p.59-60 :
181.It is clear that the jury did not accept Mr Whitehead’s case on dominant intention to injure based on the wordings of the Emails. Otherwise, they would have found malice in respect of the 1 December Email and the 4 December 2nd Email. Given the background leading to the publications of these Emails, this is hardly surprising. There was no previous history or grudges between the parties. The jury accepted that there was widespread rumour in the school which reached the parents. The concerns of the parents, including the defendants, about the rumour and its reputation to the school were acknowledged by Mr Alexander and Dr Faunce to be genuine. No reasonable tribunal of fact could have found that the defendants were actuated by a dominant motive to injure the plaintiffs instead of concerns for the prevalent situation in the school. Hence, if there were to be any findings on malice, it had to be based on the alternative case. 182.The Judge picked up on the alternative case of malice at p.60 :
183.He went on to explain knowledge and recklessness at p.61 :
184.Later, the Judge said at p.64 :
185.With respect to the learned Judge (and he did not have the benefit of the citation of Roberts v Bass, supra, before him though counsel for the defendants did submit in closing submissions that the question was whether there was a dominant improper motive, recklessness is not a separate head of malice and honesty is presumed),[65] these directions are flawed in the following respects :
186.At p.66, the Judge focused on intention based on knowledge of falsity or lack of honest belief. And he said this :
187.Further on, at p.67 he explained to the jury that even if Mr Alexander had told the 2nd defendant the two exonerations and she received it :
188.A page down at p.68-69, he said :
189.With great respect, on the facts and evidence in this case, bearing in mind the complexity on the law on malice as discussed above, these directions are inadequate to guide the jury to properly assess the question of malice. By reason of the earlier defects in the directions as to the law on malice, inadequate attention was paid to the subtle distinction between knowledge of falsity and lack of belief for the truth of the statements in the 4 December 1st Email. 190.These directions placed great emphasis on the findings as to whether the 2nd defendant was told of the two exonerations in the conversation of 3 December 2011. At the highest, even if the 2nd defendant had learnt of the two exonerations, it might affect her belief for the truth of the statements. But the two exonerations could not establish that she knew the falsity of those statements. On the one hand, she had the information from her daughter and the other parents (based on the information of the reporting students); and on the other hand she had the two exonerations. The further knowledge acquired by her on the alleged cheating incident in the year before must weigh in the balance on assessing her perception as to the credibility of the school process. The lack of response from the school management on the previous incident should also be taken into account in assessing whether the 2nd defendant was dishonest in maintaining a belief on the legitimacy of her queries. Unfortunately, the Judge did not give any direction to the jury regarding these very important aspects of the 2nd defendant’s case on why she continued to send emails with these allegations as she did after the conversation of 3 December with Mr Alexander. The same can be said regarding the impact of the third exoneration against the lack of investigation on the October test in light of the evidence of Lok Lok (as it was her subjective state of mind that is relevant instead of the objective question of whether the school had good reason for not pursuing that investigation on the ground of lack of report of the incident when it occurred). 191.As explained earlier, the direction on lack of honest belief as an alternative to knowledge of falsity is flawed. With the high evidential threshold in establishing a case of dishonesty, the Judge should have directed the jury to pay regard to the statement of intentions on the part of the 2nd defendant as reflected in the contemporaneous emails (as highlighted above) and the observations by various witnesses (including Mr Alexander and Dr Faunce) on her strong belief (though some might thought to be misguided or unreasonable) in the case of cheating. Again, unfortunately the Judge did not refer to these matters in his directions on malice. 192.Mr Yu submitted if one were to examine the evidence carefully there was no evidence that the defendants did not believe in the statements in the emails. Counsel went so far as suggesting that it was perverse for the jury to come to a finding of malice in light of the evidence in the present case. 193.On the other hand, in his written submissions, Mr McCoy pinpointed the exonerations by the school and the absence of any reference to the two exonerations in some of the emails from the 2nd defendant after the 3 December conversation with Mr Alexander as evidence of her disbelief in the case of cheating. Counsel said the following at para 39 of his skeleton submissions in CACV 252 of 2015 :
194.Thus, Mr McCoy cannot be sure if the finding of malice was based on inferred knowledge of falsity or recklessness as to the truth of the statement or other dominant improper motive. We have already explained why the third option can be eliminated in view of the evidence and the jury’s verdict of lack of malice on the 1 December Email. 195.On a proper analysis, we are of the view that these submissions should be considered in the context of the Judge’s misdirection rather than the perversity of the findings by the jury. If the Judge did not give the jury proper direction on the law and the necessary guidance on the assessment of evidence in terms of drawing inference on malice, it was not surprising that the jury reached the wrong verdict. 196.With respect, in light of the evidence highlighted above, a finding that the 2nd defendant learnt of the two exonerations could not be a solid basis for an inference that she knew that the allegations of cheating were false. In this connection, Mr Yu drew our attention to Trebeck v Croudace (1918) 118 LT 141 and Mowlds v Fergusson (1939) 40 SR (NSW) 311. The relevant proposition can be found in the judgment of Warrington LJ in the former case :
197.To the same effect is the judgment of Jordan CJ in Mowlds v Fergusson at p.322. 198.Mr McCoy did not dispute this proposition. 199.Given the evidence already discussed above, the 2nd defendant could well harbour doubt on the reliability of the two exonerations in light of what she learnt subsequently from Anney Lay. Such belief on her part needs not be a reasonable one. And the same is true in respect of the third exoneration. For some people, the continued belief in the case of cheating could have been regarded as unreasonable, careless, overzealous or obstinate. But it remains a matter of the 2nd defendant’s subjective belief. This belief on her part was apparently manifested in the subsequent emails and the observations of the others (including Mr Alexander and Dr Faunce) based on their interactions with the 2nd defendant. Thus, the jury should have asked whether these statements by the 2nd defendant in the contemporaneous emails as to her concerns and belief were disguise on her part (at a time when there was apparently no reason why she would have any need to put forward such a façade) and the Judge should have directed them in this respect and reminded them of the high threshold in drawing inference of malice, especially malice based on dishonesty. 200.In terms of recklessness, we have already explained why the direction was inadequate. The Judge repeatedly drew the distinction between recklessness and carelessness/obstinacy. However, he did not advert to the need to establish wilful blindness in order to bring about an inference of improper motive to support malice. By directing the jury that the 2nd defendant made some enquiries that might not be adequate in the wake of the two exonerations as the basis for determining whether the 2nd defendant was reckless as opposed to being careless, unreasonable or obstinate in believing her daughter, the Judge unwittingly confused the jury. The question is not objectively whether there had been adequate further enquiries, rather it should direct to the subjective state of mind of the 2nd defendant at that time, viz whether in light of the further information she obtained from Anney Lay, she was shutting her eyes to the obvious innocence of the plaintiffs given the two exonerations. Unfortunately, the jury was not directed to consider this crucial question. 201.Hence, for all the reasons set out above, in our judgment the Judge did not give adequate direction to the jury on the question of malice and the defendants’ case on lack of malice had not been properly considered by the jury. E4. Is it open to the defendants to challenge the jury verdicts on the ground of misdirection? 202.Mr McCoy submitted that by reason of the lack of complaint by the then counsel for the defendants in respect of the direction by the judge, there is a discretionary bar against these points being entertained on appeal. He relied on several authorities in this respect. It is sufficient for us to take the relevant principles from Kiam v Neil (No 2) [1996] EMLR 493 at 500-501 per Beldam LJ :
203.At the same time, Mr McCoy said that this discretionary bar is not applicable in respect of errors of law. 204.In our judgment, the errors in the Judge’s direction stemmed from the errors of law on what is sufficient to constitute knowledge or wilful blindness to the truth which can provide a basis for finding dominant improper motive in the context of malice. 205.Further, as explained above, the misdirection led to the serious miscarriage of justice in that the jury did not properly consider the defendants’ case on lack of malice notwithstanding the three exonerations. 206.We hold that the defendants were not prevented by the discretionary bar from raising the question of misdirection before us. 207.Further, by reason of the serious misdirection, the verdicts of the jury on malice must be set aside. Having come to this conclusion, it is not necessary for us to consider the other grounds of appeal for setting aside the verdicts of malice based on inconsistency and perversity of the verdicts. E5. Should there be a retrial in respect of the question of malice? 208.The next question is whether we should remit the case to the court below for retrial or we should determine the question of malice. This Court has the discretion to order a retrial or substitute an alternative verdict, see Order 59 Rules 10(3) and 11. 209.Mr McCoy submitted in the event we concluded there was misdirection (as we did above) we should remit the case to the court below for a retrial. 210.Mr Yu submitted we should take the latter course since the evidence overwhelmingly pointed to the lack of malice on the part of the defendants. He invited us to adopt the course taken in Shaw Brothers (Hong Kong) Ltd v Golden Harvest (HK) Ltd (No 2) [1972] HKLR 147 and to enter judgment for the defendants. 211.In that case, the court was satisfied that all the facts were before the court, no new evidence was likely to be elicited. It was also a clear case so that nothing was to be gained by a retrial. The test adopted by Pickering J at p.216 was that no reasonable jury could possibly come to any other conclusion. A similar test was adopted in Skeate v Slaters Ltd [1914] 2 KB 429 by Lord Reading CJ at p.435-437 and Buckley LJ at p.441. But they also reminded that the power should be exercised cautiously. 212.We shall adopt the same test and remind ourselves that we should be slow to deprive the plaintiffs of the benefit of a trial by jury. At the same time, we agree if we come to the clear conclusion that nothing is to be gained by a retrial it is our duty not to postpone the judgment date with further costs and anxiety imposed on the parties in a futile exercise by way of a retrial. 213.Mr McCoy did not suggest before us that if there were to be a retrial the plaintiffs would call further evidence apart from those already before us. 214.On the existing materials, apart from the evidence specifically discussed earlier, we also have regard to the other matters highlighted by the counsel for the plaintiffs below in his closing submissions. In this connection, we have re-read the written closing submissions of 22 September 2014 (which was only placed before the Judge to assist him in preparing for his direction but not placed before the jury) and the transcript of his oral closing submissions before the jury on Days 15 and 16. 215.At the court below, counsel for the plaintiffs placed great emphasis on the 2nd defendant’s knowledge of the exonerations and the processes of investigation by the school and the omission to refer to it in the 4 December 1st email. He also referred to the strong wordings and the tone used by the 2nd defendant in putting the allegations in the emails and the following matters to support the case of malice :
216.Counsel also went through the pleadings on malice at some length in his closing address to the jury.[70] We reminded ourselves with how the case had been pleaded in the Re-re-Amended Reply. 217.In his oral submissions, Mr McCoy summarized his case on malice in this way : the 2nd defendant ran a spiteful campaign to punish the wrongdoers, and the jury could infer from the number of publications, the tone and crescendo of publications that this was her dominant intention. In addition to the matters we have considered above, counsel also invited us to the press release and the evasiveness in her evidence in respect of the two exonerations in the conversation of 3 December as matters that the jury could take into account in drawing inference. In this respect, counsel referred to [32.37] and [32.45] of Gatley, supra. 218.With respect, the defendants had to maintain a belief in the wrongdoing before one can say that there was a campaign to punish the wrongdoers. Thus, Mr McCoy’s summary of his clients’ case suggested that the defendants all along maintained a belief in the wrongdoing alleged in the Emails, no matter how irrational or lack of foundation it is. If that were so, applying the law correctly, there cannot be any finding of malice unless the plaintiffs proved that the defendants misused the occasion for some purpose other than that for which the privilege is accorded by the law : Horrocks v Lowe, supra. 219.We would not, however, decide how we should dispose of the appeals simply by reference to Mr McCoy’s formulation of his case. We must examine the evidence to see if there is at least a case which a jury properly directed could have come to a verdict of the defendants not having such belief when they wrote the Emails. Mr Yu submitted that the evidence overwhelmingly pointed to the maintenance of such belief and there was no evidence to the contrary. 220.We agree with Mr Yu that as far as the contemporaneous emails and account of events were concerned, the evidence pointed very clearly to the defendants maintaining their belief throughout the incident, even after the 15 December 2011. We have already gone through the necessary review when we discussed the evidence on malice. 221.In respect of the wordings and the tones of the offending statements, whilst they are indeed strong and unpleasant words we cannot find anything in them to suggest that the defendants did not genuinely believe in the allegations. In this connection, there were some citations by Viscount Dilhorne in Horrocks v Lowe, supra at p.144 to 145 of earlier judicial guidance :
222.And Viscount Dilhorne said at p.145C :
223.Similarly, Lord Diplock said at p.150C to E :
224.At the same time, we should also bear in mind the scope of the publication confining to the school management and the small group of concerned parents. This is most relevant for considering whether the defendants had misused the occasion to pursue an injurious campaign of spite or vendetta. 225.In respect of the exonerations from the school, we have already discussed why according to her own statement in the email of 7 December the 2nd defendant chose to place no weight on the first two exonerations after she took on board the information from Anney Lay regarding another incident in the previous year. For a more objective person, one may find the 4 December 1st Email to be an over-reaction. However, we are concerned with the subjective state of mind of the 2nd defendant and we should approach this issue bearing in mind the observations of Lord Diplock cited above. 226.We are mindful that we did not have the opportunity of hearing evidence from her and it is probably correct to proceed on the basis that the jury had rejected her evidence on the contents of the 3 December 2011 conversation with Mr Alexander. It was submitted forcefully on behalf of the plaintiffs that adverse inference should be drawn from her unsatisfactory evidence on that conversation, the lack of references to these exonerations (and the third exoneration on 15 December). 227.However, the statement in the email of 7 December was a spontaneous statement made at the time of the event and we cannot think of any reason why at that time the 2nd defendant should have disguised her real lines of thoughts to the other concerned parents whom she regarded as comrades. It is inherently unlikely that the 2nd defendant dishonestly put up a false façade in that email of not accepting the process leading to the two exonerations when deep down in her heart she knew that there was nothing in the allegations of cheating since it had been thoroughly investigated by the school. 228.In this respect, as discussed above, the plaintiffs bear an onerous burden of persuading the court that the 2nd defendant was untruthful in that email. We cannot find any cogent evidence to discharge such burden. 229.Counsel for the plaintiffs relied on the lack of reference to the exonerations in the subsequent emails. There was actually no point for the 2nd defendant to refer to the exonerations in her communication with the school management because the latter was obviously aware of the same. In respect of the correspondence with the other concerned parents, as parents of the reporting students, they were probably aware that the students had been interviewed twice, see Anney Lay’s email of 3 December 2011 to the 2nd defendant. Teresa Ko was the exception. In terms of exonerations, the 2nd defendant did refer to the reports of the students being dismissed in the 4 December 1st email though admittedly there was no reference to the comparison of the papers by the teacher. Yet, viewed in the context that the 2nd defendant was in doubt of the thoroughness of the process of investigation leading to the exonerations, and she was working on making the process to be more transparent, we do not think the absence of reference to such exonerations could be regarded as cogent evidence to refute her statement of intent in the email of 7 December. This is particularly so when one makes a global assessment of all the evidence as discussed earlier. 230.In respect of the third exoneration, it is apparent from the 16 December Email that the 2nd defendant was not convinced by the process. At the same time, the focus of the email was on the perception issue in terms of the school handling of the incident instead of advancing the allegations against the plaintiffs. Dr Faunce and all the parents to whom the Email was copied were clearly aware of the third exoneration. In such context, the lack of reference to the third exoneration could hardly be a cogent basis for refuting the statement of intent in the email of 7 December. 231.As for the other matters relied upon by plaintiffs as adumbrated by their counsel in closing submissions, we do not regard them (whether individually or taken collectively) capable of forming the basis for inferring that the defendants acted without any belief on the assertions in the emails in the course of events. In view of the plain fact that the 2nd defendant was much more involved in the events than the 1st defendant, his failure to give evidence at the trial was not remarkable. Even assuming it is right to draw adverse inference against him in respect of the suggestion of going to higher authority at the 8 December Meeting, such a finding cannot be evidence of his lack of belief in the truth of the assertions as to cheating. It is equally consistent with his harbouring a strong conviction in the truth of the same. Equally, the engagement of Teresa Ko in the matter, the exertion of pressure on the school management, the continuation in the pursuit of the case notwithstanding the suggestion of Anney Lay in the email of 7 December, the absence of reference to exoneration in the press release and the walking out at the graduation ceremony, are logically neutral in terms of assessing whether the defendants believed in the assertions of cheating. Though the 2nd defendant had not spoken directly to the reporting students, she had received information from their parents. Rightly or wrongly, so long as she chose to believe in such information, as Lord Diplock said it is all that the law demands. 232.Thus, we come to a clear conclusion that notwithstanding the three exonerations there is no basis for suggesting that the defendants did not believe in the truth of the allegations. Some people may regard them as obstinate or even swayed by prejudice, but we agree with Mr Yu that there is no evidence of them not believing in their own cause throughout the incident. 233.Also in view of the lack of confidence of the defendants on the school process which was actually the core of the problem, and such lack of confidence was based upon some matters which the school management had not attempted to address (the incident in the previous year and Lok Lok’s evidence regarding the test in October), the defendants did not act with wilful blindness in refusing to accept the three exonerations. 234.Coming then to the ultimate issue : was there any evidence the defendants misused the occasion for some purpose other than that for which the privilege is accorded by the law? In the court below, counsel for the plaintiffs advanced a case based on reckless state of prejudice in his written submissions placed before the judge. Based on Royal Aquarium, supra, p.444, he submitted that it would be evidence of malice if the jury finds that the defendants have “allowed their mind to get into such a reckless state of prejudice that they were regardless of the interests of other persons, and whether what they were saying were true or false”.[71] 235.As we have discussed above, recklessness short of wilful blindness coupled with gross unreasoning prejudice could be evidence of malice if such unreasoning prejudice was so overwhelming that the desire to act to protect the relevant interest plays no significant part in the publication of the offending statements. Whilst we accept that there may be an arguable case on such recklessness and the jury may infer prejudice, we do not find evidence of such overwhelming unreasoning prejudice in view of the genuine concerns over the school process founded upon matters not addressed by the school as stated above. 236.Further, the evidence also very clearly pointed to the conclusion that the desire to protect the interest of the students in general played significant part in the defendants’ acts. The very limited scope of the circulation of the emails, the efforts on the parents’ part to enter into dialogue with the school management, the circumstances in which these emails and document were written, and the objective facts that the school did find it necessary to respond by way of the further inquiry on 14 December and the publication of the newsletter on 16 December are strong indicators that the defendants acted within the limits of the purposes for which the privilege was conferred. In addition, though the defendants did not accept the conclusion of the school management, the 2nd defendant in her 19 December email acknowledged the efforts of Dr Faunce and there were no further offending emails. 237.For these reasons, there is no evidence on which a properly directed jury can make a finding of malice on the part of the defendants. Having arrived at this conclusion, applying the test set out above, we should enter judgment for the defendants instead of ordering a re-trial. F. QUALIFIED PRIVILEGE ON OTHER OFFENDING PUBLICATIONS F1. The parties’ submissions 238.What remains outstanding is the question whether the concurrent findings by the Judge and this Court on qualified privilege in respect of the 1 December Email and 4 December 2nd Email should also apply to all the other defamatory publications complained of. If they do, then we can dispose of the appeals without remitting the case back to the court below for further consideration. We have invited the parties to lodge their written submissions on this question. Pursuant to our directions, the parties lodged their submissions on 24 October 2015 (by the plaintiffs), 7 November 2015 (by the defendants) and 21 November 2015 (by the plaintiffs in reply). 239.Essentially, Mr McCoy took two points in the plaintiffs’ submissions of 24 October. 240.He first submitted that it is wrong in principle to apply the concurrent findings on qualified privilege to the other offending publications. He took the general point that in determining the defamatory matter was published on an occasion of qualified privilege, the court must take into account of every circumstance associated with the origin and publication of the publication in order to ascertain whether the necessary conditions are satisfied, by which alone protection can be obtained. Since each and every offending publication had to be considered separately, it is wrong in principle to apply the concurrent findings to publications other than the 1 December Email and the 4 December 2nd Email without regard to the different recipients, timing and circumstances each was published. 241.Mr McCoy next submitted that since there were questions of facts relevant to the question of qualified privilege for other offending publications which could only be determined by the jury but were not, the Court of Appeal could not simply apply the concurrent findings to the other offending publications in the absence of such findings by the jury. He therefore submitted that whether the concurrent findings apply to the other publications should be postponed until after all the disputed questions of fact relevant to qualified privilege have properly been found by the jury. He, however, had not identified what those questions of fact were. That he only did in the plaintiffs’ reply submissions of 21 November. 242.There, Mr McCoy set out a number of questions which, according to his submissions, are relevant to the questions of qualified privilege to other offending publications and provided the answers, again according to his reasoning, that the jury would in all probabilities have returned. He reiterated that it would be wrong in principle for the Court of Appeal to apply the concurrent findings to the other offending publications. He alternatively submitted that different circumstances existed with respect to those publications such that the concurrent findings did not apply to them. In substance, he now submitted that there is no need to defer the question whether qualified privilege apply to other offending publications until all the relevant questions of fact have been determined by the jury because the jury would have in all probabilities answered them in the plaintiffs’ favour. Mr McCoy placed particular on the three exonerations by the school management and the jury’s findings on the 2nd defendant’s lack of concern (see [94] and [95] above). 243.Mr Yu submitted that the key question is whether there is any reason why on the basis of the same relevant facts and evidence the common interest existed between the senders and recipients of the 1 December Email and the 4 December 2nd Email would not also exist between the senders and recipients of the other offending publications. Put slightly differently, the key question is whether there is any difference between the occasions of publication of the various sets of words insofar as the existence of common interest is concerned. Referring to the various findings by the Judge relating to common interests, now upheld by us, Mr Yu submitted that the same findings must apply to the occasions of publication of the other offending words during the period from 1 to 16 December 2011. F2. Our views 244.We do not see the need to defer the question of qualified privilege in respect of other offending publications as contended by Mr McCoy. The simple reason is all the relevant evidence is already before us. We can come to a determination on this question of law now. 245.We have considered the questions of fact identified by Mr McCoy in his reply submissions but find it unnecessary to deal with them in detail. We do not consider them to have any significant bearing on the overall assessment of the evidence on qualified privilege or the existence of common interests pertaining to the other offending publications. And it is wrong for Mr McCoy to provide the answers which he said the jury would in all probabilities would have returned because it is no more than a speculative exercise. 246.We can see no material difference in the circumstances pertaining to the occasions of each of the publications of all the offending words. The very same common interests underlying the 1 December Email and the 4 December 2nd Email, that is, the preservation of the image and reputation of CIS, ensuring that CIS inculcates and instills in the students the importance of academic integrity and ensuring that CIS takes a responsible attitude and appropriate actions as regards cheating in examinations or rumours of such behavior, existed throughout the material times between 1 and 16 December 2011 for all the offending publications between the defendants as senders and the recipients, whether they were parents or the senior members of the school management. 247.As to the three exonerations of the plaintiffs by the school management, we have already in discussing malice explained why they did not assist the plaintiffs in establishing malice. For the same reasons, we do not see how the exonerations would have any material impact on the question of qualified privilege in respect of the relevant offending publications in the overall circumstances of the case. Further, as discussed in sections E3 and E5 above, insofar as the subjective state of mind of the defendants has any relevance on the question of qualified privilege, the finding by the jury as to lack of concern was tainted as a result of misdirection (without having been properly directed to all the relevant evidence on that question) and no reasonable jury properly directed could have come to such finding. Hence, such finding could not assist the plaintiffs. 248.For the above reasons, we hold that the defendants have successfully established the defence of qualified privilege as pleaded and formulated by Mr Yu in respect of all the other offending publications. G. DISPOSITIONS 249.In light of our judgment above, we need not deal with the plaintiff’s appeal against the Costs Order separately. It must fail. 250.We dismiss the plaintiffs’ appeal, CACV 251/2011 and allow the defendants’, CACV 252/2011. We order that the judgment entered in the plaintiffs’ favour below be set aside and that the plaintiffs’ claims be dismissed with costs of the proceedings below to the defendants, to be taxed if not agreed, with a certificate of two counsel. 251.Costs of the appeal should follow the event. We therefore make an order nisi in each appeal that the plaintiffs shall pay the defendants costs of the appeal, to be taxed if not agreed, with a certificate for two counsel.
Mr Gerard McCoy, SC & Mr Lawrence Ng, instructed by Norton Rose Fulbright Hong Kong, for the 1st, 2nd and 3rd plaintiffs Mr Benjamin Yu, SC & Ms Queenie Lau, instructed by Deacons, for 1st and 2nd defendants Appendix 1 Particulars of 1st Offending Words (1) In the heading thereof : -
(2) In the 1st paragraph thereof : -
(3) In the 2nd paragraph thereof : -
(4) In the last paragraph thereof : -
In their natural and ordinary meaning the 1st Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 2 Particulars of 2nd Offending Words (1) In the 1st paragraph thereof : -
(2) Under the sub-heading “Perception issues” in the 2nd paragraph thereof : -
In their natural and ordinary meaning the 2nd Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 3 Particulars of 3rd Offending Words (1) In the 1st paragraph thereof : -
(2) In the 2nd paragraph thereof : -
In their natural and ordinary meaning the 3rd Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 4 Particulars of 4th Offending Words (1) In the heading thereof : -
(2) In the 2nd paragraph thereof : -
(3) In the 3rd paragraph thereof : -
(4) In the 4th paragraph thereof : -
(5) In the 5th paragraph thereof : -
In their natural and ordinary meaning the 4th Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 5 Particulars of 5th Offending Words (1) In the heading thereof : -
(2) In the 2nd paragraph thereof : -
In their natural and ordinary meaning the 6th Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 6 Particulars of 6th Offending Words (1) In the heading thereof : -
(2) In the 2nd paragraph thereof : -
(3) In the 3rd paragraph thereof : -
In their natural and ordinary meaning the 6th Offending Words meant or were under stood to mean, inter alia, that : -
Appendix 7 20. Each of the occasions of publication of the 1 December Email, 4 December 1st Email, 4 December 2nd Email, 6 December Email, Summary and 16 December Email by the 1st and/or 2nd Defendants was an occasion of qualified privilege.
[1] The nomenclatures of the documents published follow the same that were used in the pleadings and adopted by To J in his decision dated 7 October 2015. See Part B below for their definitions. Each of the Offending Words and their defamatory meanings as pleaded by the plaintiffs are respectively reproduced in Appendix 1 to 6 to this Judgment. [2] At the trial before the jury, the plaintiffs were represented by Mr Robert Whitehead SC and Mr Lawrence Ng. The defendants were represented by Mr Jason Pow SC and Mr Victor Dawes SC. The trial before the jury lasted for 18 days. [3] The matters were dealt with by written submissions only. By then, the defendants were represented by Mr Benjamin Yu SC and Mr Victor Dawes SC. [4] Before us,the plaintiffs are represented by Mr Gerald McCoy SC and Mr Lawrence Ng, the defendants by Mr Benjamin Yu SC and Ms Queenie Lau. [5] As found by the Jury : see the Jury’s Answers to Questions C.3(a) and (b). [6] As found by the Jury : see the Jury’s Answers to Questions A.3(b). [7] As found by the Jury : see the Jury’s Answers to Questions A.3(c) and (d). [8] As found by the Jury : see the Jury’s Answers to Questions C.3(c) and (d). [9] See Appendix 7. [10] [10] – [17] of the Decision. [11] [20] – [26] of the Decision. [12] [27] – [48] of the Decision. [13] [50] of the Decision. [14] [54] – [56] of the Decision respectively. [15] 148 NW 457 (Min 1914). [16] [1953] 1 WLR 704. [17] [64] – [74] of the Decision. [18] [76] – [77] of the Decision. [19] Gatleyon Libel and Slander, 12th Edition, [6.18]. [20] [78] – [79] of the Decision. [21] [80] – [99] of the Decision. [22] [105] of the Decision. [23] [107] of the Decision. [24] [109] of the Decision. [25] [110] of the Decision. [26] [116] of the Decision. [27] [117] of the Decision. [28] [26] and [32] of the Decision. [29] For some recent judicial remarks, see, for example, Kwok Chin Wing v 21 Holdings Ltd (20130 26 HCFAR 663, per Ma CJ at [21]; and Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632, per Ribeiro PJ at [34]. Mr McCoy also referred us to similar remarks by the English Court of Appeal in Nicholas Jones v MBNA International Bank, unreported, 30 June 2000, per Peter Gibson LJ at [52]. [30] Supra, [27.25] and [27.26]. [31] See also Cheng v Tse Wai Chun (2003) 3 HKCFAR 339, where Lord Nicholls referred to his statement quoted above. [32] Ibid. [33] See the jury’s answer to Question A(3)(e)(iii). [34] See the jury’s answer to Question A(3)(i). [35] See the jury’s answer to Question C(3)(e). [36] See the jury’s answer to Question C(3)(f). [37] See the jury’s answer to Question C(g)(ii). [38] Day 4, p 126 line 17 to p 127 line 7. [39] Day 4, p 127 lines 12 – 19. [40] Day 4, p 146 line 23 to p 147 line 1. [41] Day 4, p 2 line 22 to p 5 line 2. [42] Day 4, p 31 line 19 to p 32 line 19. [43] Day 4, p 39 lines 6 to 10. [44] Including Lovejoy v Whitcom 174 Mass. 586, 55 N.E 322 (1899); Wertz v Lawrence 66 Colo. 55, 179 P.813 (1919); Wagner v Lim (1994) 22 Alta LR (3d) 169; Shelmerdine v Mewett (1993) 170 LSJS 228; Hedbitch v MacIlwaine [1894] 2 QB 54; Cambridge v Makin [2012] EMLR 19; Ryan v Premachandran [2009] NSWSC 1186; Angle v LaPierre [2008] 7 WWR 600. [45] See [62] above. [46] See the defendants’ reply submissions before the Judge, [6]. [47] Day 4 p.17. [48] Day 8 p.4-5; Day 9 p.78-86; Day 10 p.32. [49] Day 9 p.63-69. [50] Day 8 p.5-7. [51] Day 10 p.20-21. [52] Day 4 p.42 (Mr Alexander); Day 5 p.10-11 (Dr Faunce); Day 8 p.10 (2nd defendant). [53] Day 5 p.10. [54] Day 4 p.84, and see the judge’s reference to this at Day 17 p.36. [55] Day 10 p.63-64. [56] Day 10 p.65 and 74; Mr Alexander agreed, see Day 4 p.54. [57] Day 10 p.75-76. [58] CB 3 p.389-390. [59] Day 4 p.49-50. [60] Day 4 p.18-19. [61] Day 4 p.76-77. [62] Day 5 p.18-25; p.44. [63] Day 5 p.40. [64] Day 5 p.41. [65] Paras 4 to 7 of Defendants’ submissions on malice. [66] Day 10 p.68-69. [67] CB3 p.301. [68] CB2 p.239. [69] CB2 p.225. [70] Day 16 p.37 to 46. [71] Para 123 in the Plaintiffs’ written closing remarks of 22 September 2014. | |||||||||||||||||||||||||||||||||||||||||||||||||||||
We are alarmed to hear that cheating in exams is not uncommon; it has always been there but nothing seems to have been done to stop this.Cases cited in this judgment
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Further hearings and rulings under CACV 251/2015