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

CACV 240/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2015

(ON APPEAL FROM HCA NO 1855 OF 2010)

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BETWEEN

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Before: Hon Yuen JA, Kwan JA and Macrae JA in Court

Dates of Further Written Submissions:  12, 20 and 26 October 2017

Date of Judgment:  22 December 2017

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JUDGMENT

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Hon Kwan JA (giving the Judgment of the Court):

1.We are concerned with two applications by both parties for leave to appeal to the Court of Final Appeal against our judgment handed down on 8 September 2017. By a majority, this court allowed the plaintiff’s appeal to the extent that he is awarded general damages of $30,000 for slander and malicious falsehood.

2.The defendant’s notice of motion issued on 28 September 2017 set out these questions said to be of great general or public importance:

“ (1) Whether the common law defence of absolute privilege in the law of defamation and malicious falsehood in Hong Kong covers or extends to, or should cover or extend to, occasions where the communications are between a solicitor or a barrister for court proceedings on the one hand, and a person who may not be a witness or potential witness but provides relevant information for possible use in those proceedings on the other hand (“Question 1”).

(2) Whether the answer to Question 1 should be different depending on whether the court proceedings are criminal or civil in nature, or are contentious probate proceedings (“Question 2”).

(3) Whether the common law defence of absolute privilege in the law of defamation and malicious falsehood in Hong Kong operates in such a way so that fundamental rights under Article 14 of the Hong Kong Bill of Rights, Article 35 of the Basic Law, or Article 39 of the Basic Law are engaged and so that the 4-steps proportionality analysis established by the CFA in the case of Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 needs to be undertaken (“Question 3”).

(4) Whether the answer to Question 3 should be different depending on whether the litigation is between private individuals, as opposed to between a private individual and a public authority (“Question 4”).

(5) Whether, in a defamation or malicious falsehood matter, the plaintiff and the courts are entitled to use or rely on particulars of extrinsic facts never specifically pleaded in support of a specific innuendo meaning to support that innuendo meaning, on the sole ground that evidence on such extrinsic facts had in any case been received by the trial judge for a different reason or purpose (“Question 5”).”

3.The plaintiff’s notice of motion issued on 6 October 2017 set out the following question said to be of great general or public importance:

“ Whether damages resulting from an absolutely privileged republication can be recoverable as damages for defamation and/or malicious falsehood flowing from an original non-privileged publication by a defendant where such republication should have been within the reasonable contemplation of the defendant?” (“Question 6”)

4.The defendant does not oppose the plaintiff’s application.  Her position is that all six questions should be submitted to the Court of Final Appeal for decision.

5.The plaintiff opposes the defendant’s application, contending that no leave should be granted on her five questions as they are not questions of great, general or public importance and/or they are not reasonably arguable. He pursues his leave application only because the defendant seeks to appeal further.  He is content to rest with the judgment of the Court of Appeal if leave to appeal is not granted to the defendant.  So if the defendant is refused leave, he will not pursue his application.

6.We do not think it could be said there is no reasonable prospect of the Court of Final Appeal coming to a different view from this court on whether absolute privilege should cover the publication in question.  Question 1 is reasonably arguable and is plainly a question of great general or public importance.  It is appropriate to grant leave to the defendant to appeal on Question 1.

7.We should also grant leave to appeal to the plaintiff in respect of Question 6 as it is reasonably arguable, given that members of this court have differed on the issue of damages consequential on republication, and it is clearly an important point of law for determination by the Court of Final Appeal.

8.Questions 2, 3 and 4 are subsidiary to Question 1.  We do not find it necessary or appropriate to grant leave in respect of these questions. Question 2 was not addressed in our judgment.  Questions 3 and 4 deal with how Question 1 should be approached.  It would be more appropriate for the Court of Final Appeal to decide on the scope of the arguments it would wish to hear in relation to the issue in Question 1.  

9.Question 5 relates to the question of sufficiency of pleading and is case-specific.  Notwithstanding this, we would exercise our discretion to grant leave to appeal on this as there is to be a further appeal on other questions and members of this court have come to different views on this question.

10.We make an order that the costs of each application be in the cause of the intended appeals to the Court of Final Appeal.

11.We direct each applicant to submit the usual order for the comments of each other and for the approval of this court within seven days of the handing down of this judgment.

Mr Benjamin Yu SC and Mr Jonathan Chang, instructed by Baker & McKenzie, for the Plaintiff (Appellant)

Mr Kenneth Lam K Y and Ms Angela Mui, instructed by Lui & Law, for the Defendant (Respondent)