Lo Chi Lik Eric v. Yuen Chi Ho Chris

DCCJ 2702/2016

[2020] HKDC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2702 OF 2016

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Before: Deputy District Judge W. Y. Ho, in Court

Dates of Trial: 19^th, 20^th, 21^st, 22^nd and 25^th February 2019 and 19^th March 2019

Date of Judgment: 22^nd April 2020

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J U D G M E N T

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1.This is the plaintiff’s claim against the defendant for damages for libel and an injunction to restrain the defendant from further defaming the plaintiff.

BACKGROUND

2.At the material time, the plaintiff was an associate professor in the Department of Computing (“the Department”) at the Hong Kong Polytechnic University (“HKPU”). The defendant was the plaintiff’s part-time research student for the period from 22 February 2013 to 15 January 2016.

3.On or about 9 January 2016, the plaintiff was informed by the Head of Department a Janis Wu sent an email to the Department making a complaint against the plaintiff. In or around mid-January 2016, the plaintiff discovered a discussion thread entitled “理大副教授玩人實錄” posted on the Hong Kong Discuss Forum on 13 January 2016 (“the First Thread”). In response to the First Thread, a subsequent thread was posted on 14 January 2016 (“the Second Thread”) by someone named Clever Chan.

4.On 7 May 2016, a Janis Wu sent an email (“the Janis Wu Email”) to Chinese University of Hong Kong, Oriental Daily News, Apple Daily, Headline Daily, and Hong Kong Economic Times. This email (dated 7 May 2016) and that dated 9 January 2016, both sent by Janis Wu, are largely similar in content.

5.During the trial, the defendant admitted he used the pseudonyms of Clever Chan and Janis Wu. He further admitted he was the author of the Second Thread and the emails from Janis Wu.

6.The plaintiff’s claim against the defendant for defamation is based on the 3 following publications purportedly containing a total of 9 defamatory statements:

1)  The First Thread.

a)  The plaintiff claims there are 7 defamatory statements in this publication (collectively referred to as “the 7 Statements”).

b) The defendant relies on the following defences against the 7 Statements: lack of defamatory meaning, justification and/or Lucas Box meaning, and fair comment.

2)  The Second Thread.

a)  The plaintiff claims there is 1 defamatory statement made in this publication.

b) The defendant denies there has been republication of the 7 Statements and denies knowledge and/or intention of republication, if any. He also denies there is any defamatory meaning attributable to the Second Thread and further relies on the defence of justification and fair comment.

3)  Janis Wu’s email dated 7 May 2016 (“the Janis Wu Email”).

a)  The plaintiff claims there is 1 defamatory statement in this publication.

b) The defendant denies there has been republication of the 7 Statements and denies knowledge and/or intention of republication, if any. He also denies there is any defamatory meaning attributable to the said email and further relies on the defence of justification and fair comment.

7.The purported defamatory statements are set out below. To understand the context of the purported defamatory statements, I have set out the contents of the various texts in full.

The First Thread

8.The title of the thread is: “理大副教授玩人實錄”. The plaintiff claims this to be the first purported defamatory statement (“the 1^st Statement”).

9.The content of the whole thread is reproduced below and the purported defamatory statements are italicized for easy identification:

“Dear All,

My name is Cxxxx Yxxx, I received my part-time Bachelor of Arts Degree with Honours in Computing in HKPU in 2012.

During my study, my final year project supervisor was Dr. Ken Yiu.

After my graduation, I planned to study further in HKPU and so approached him to talk about my further study.

I intended to study a research degree in HKPU and asked him if whether he was interested to recruit a part-time MPhil student or not.

He said he would not but recommended me to approach Dr. Eric Lo (they are in the same research group) to see if whether he had vacancy or not.

Thus, I approached him and talked with him about the MPhil programme.

1. After I had read some journal papers recommended by him and wrote a draft of research proposal, I kept amending this draft several times and he kept saying it was better than the previous ones.

I submitted my application to the Research Office without my research proposal as he said he would provide me another one that can be passed in application review by research committee easily (see below and attached file).

...

In fact, the research proposal used was the stuff for one of his co-authored papers.

He just gave me to have a look on its hard copy. I thought that the paper had already been submitted and waited for result and he used the simplified version as my research proposal at the same moment.

I told him I thought that it was not good to do so and the research committee should know that the research proposal was not done by myself but he said it was okay and I guessed that it may be the “standard” practice for research degree application and some other classmates also had such experiences. [The 2^nd Statement]

Finally, I got admitted to the MPhil under his supervision.

2. For half of the normal study period, the part-time MPhil students should submit a report and apply for confirmation of registration.

I thought it was very important but he said the confirmation of registration was just paper-work and no one would care about it and if you did what I recommended, I can guarantee you must get the degree.

In fact, except for the confirmation of registration, the thesis and the oral examination will be examined by the external examiner and I did not think what he said was correct.

3.   He always asks me if whether I can meet him at 4:00pm or before in working days. [The 3^rd Statement]

A part-time student has full-time job normally and cannot get off duty at 4:00pm or before.

He then suggested to meet together in the morning or afternoon on Saturday.

The time we met together was kept decreasing and he assigned a full-time PhD student to meet me afterwards.

I think it is still okay but the PhD student may not fully understand the things we needed to know.

He was often very busy and thus I can only keep idle without any assigned work (waste the time for my normal study period).

4． He always keeps saying “You just consumed around $1000 in my account and so I kept you in my group (as a backup)” even for the early stage of my study.

I felt very worry about my study for what he said. Full-time students can earn studentship/scholarships and pay half of the tuition fee when compared with (self-finance) part-time students while paying the full tuition fee just guaranteed the “backup” position.

I thought that if I was very poor in doing research, then he should ask me to leave as early as possible but not waste time and money to stay in this research group for keeping idle. [The 4^th Statement]

5.   He assigned some works to me to publish a paper with other classmate. We submitted a paper to a VLDB but not accepted. He with my classmate published that paper in ICDE finally. Both papers are similar. Why the first one (not accepted) added my name but the second one did not have my name? [The 5^th Statement]

6. He did not know how to respect for the students (not only me). Even for some general questions, I think he should know the answers but tell me to ask the general office to find the answer impolitely.

In summer time, our group will hold the “db summer”. Every student will read some data management / database related journal papers and present the ideas for these papers during this period.

Last db summer, he shouted at me because of the font size was very small, there were many words and the contents were not good in my PowerPoint.

In fact, I spent much time on preparing the PowerPoint and I took around 40 minutes to go from my home to HKPU while I just presented 5 minutes and needed to go back to my home.

He shouted “面就人地比，架就自己丟”and “This is my teaching style. If you do not like it, you can leave my group!” which gave me a very high pressure. [The 6^th Statement]

7.   Then, I met him and he kept saying “You may consider to withdraw your study and please do not waste your money, however, you can still stay in our group and I will not kick you out.”

After this, I approached Dr. Rocky Chang and talked about if whether he will recruit a new part-time MPhil student or not.

He said he has a research project related to Internet Measurement and Network Diagnosis and I wrote two research proposals and gave him to have a look.

The first one was very poor and he did not give me any response for the second one but I thought it still had a big room for improvement and thus, applied for deferment of study for one year.

However, Dr. Eric Lo said that he will not force me to withdraw my study but what he acted (see below) to frighten the Dr. Rocky Chang out of giving me some responses.

...

[email heading omitted]

“Dear Cxxxx,

From my perspective, if I grant you the deferment of study (on my behalf), that has the implication that I agree that you can complete data related research given you have more time. Unfortunately, currently I don’t think so.

Therefore, the best way is for you to get yourself a new supervisor who thinks you are able to complete your study given more time, then we can immediately go for the supervisor changing process and the deferment of study procedure together.

Best,

Eric”

All the things were over, Dr. Rocky Chang will not recruit me and Dr. Eric Lo will not approve my deferment of study. [The 7^th Statement]

Thus, I applied a withdrawal notification and withdrew my study as I do not want to keep paying the tuition fee but learn nothing.

I do not think “The teaching staffs are always the winners while the students are always the losers” and just want to have a fair judgement.

I just want to complain to Dr. Eric Lo for what he acted but I do not trust my current department (i.e. department of computing).

Could you please help forward my case to certain parties in order to raise a complaint?

Thank you very much!

Best Regards

Cxxxx.”

10.The plaintiff claims the 7 Statements have the following natural and ordinary meanings:

1)  The plaintiff has deceived the defendant into believing the defendant could complete his part-time research study.

2)  The plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal.

3)  The plaintiff’s conduct was unreasonable for requesting to meet the defendant during working hours in the weekdays knowing that the defendant needs to work full-time.

4)  The plaintiff is to blame for wasting the defendant’s time and money to undertake part-time research study unsuccessfully.

5)  The plaintiff’s conduct was unreasonable and improper by not acknowledging the defendant’s contribution in the published research paper.

6)  The plaintiff is unreasonable and impolite and has no respect for other people.

7)  The plaintiff has pressured Dr Rocky Chang (“Dr Chang”) not to take the defendant as a research student.

11.The meanings pleaded in subparagraphs (3), (5), and (6) above are admitted by the defendant.

The Second Thread

12.The plaintiff claims the Second Thread is a republication of the 7 Statements appearing in the First Thread. The Second Thread reads as follows (the purported 8^th defamatory statement is italicized for easy identification):

“我是香港理工大學的全日制研究生，我並不在意這位同學被教授“玩” ，什至浪費了很多金錢的學費，或者以退學收場等等。

我比較在意的是這位同學說他在申請研究學位的時候，這位“玩”他的教授用了他自己已submitted的paper作為他入學申請的研究計劃書以取得入學資格。這份paper的題目為“The Impact of SSD on Search Engine Cache Management”, 全名應為“The impact of solid state drive on search engine cache management” (你可以在http://dl.acm.org/citation.cfm?id=2484046找到) 。這位教授只是其中的一位作者，我相信其他作者未必知道他會用/也未必會同意他用這份paper的內容或者部分內容作為這位同學入學申請的研究計劃書，為何這位教授會幫這位同學寫研究計劃書？當中有否利益輸送？不知道有否利益輸送，入學申請的研究計劃書應該為申請人自己寫的，當然也可以包含 proposed supervisor 的修改等等，以一位擁有豐富教學及研究經驗的教授，沒有理由不知道什麼是 self plagiarism 也沒有理由做出這種事情。[The 8^th Statement]

剛剛查看了這位教授的個人網頁 http://www4.comp.polyu.edu.hk/~cscllo/

不知道他的學生會否因為他幫他們寫的研究計劃書而可以入讀該學糸的研究課程，...

[list of student names omitted]

...

除了向理大學生會或研究生會投訴，是否應該將這件事發送去傳媒，等傳媒能夠對香港理工大學施壓，對這位教授作出懲處及徹底翻查他的學生/畢業生，看看有否同類情況的出現，以證明香港理工大學的入學程序沒有不公平的地方。

Clever.”

13.The translation of the 8^th Statement (as set out in paragraph 7 of the Statement of Claim) reads as follows:

“I don’t care whether this student was tricked by the professor, even wasting a lot of tuition fees or ended up withdrawing from study etc.

I do care about what this student said when he applied for admission to research study, this professor who tricked him used his own paper which has been submitted as his research proposal for admission to research study ... this professor is only one of the co-authors, I believe that the other authors may not know that he would use/may not agree for him to use the contents or part of the contents of the paper as the student’s research proposal for admission to research study. Why this professor would help this student to write the research proposal? Does it involve any improper transfer of benefits? Don’t know if there is any improper transfer of benefits, research proposal for admission to research study should be written by the applicant himself, of course it may include any amendments suggested by the proposed supervisor etc. As an experienced professor in teaching and research, there is no reason not to understand what is self-plagiarism and there is no reason to do such things.”

14.The plaintiff claims the 8^th Statement has the following natural and ordinary meanings:

1)  The plaintiff has deceived the defendant into believing the defendant could complete his part-time research study.

2)  The plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal.

3)  The plaintiff is to blame for wasting the defendant’s time and money to undertake part-time research unsuccessfully.

Janis Wu’s Email

15.The plaintiff claims the Janis Wu Email is a republication of the 7 Statements. The said email reads as follows (the purported 9^th defamatory statement is italicized for easy identification):

“我是香港理工大學的舊生，這封電郵主要是關於香港理工大學電子計算學系前副教授盧至力轉到香港中文大學計算機科學與工程學系任教。

不久之前，大概在今年一月中，我在某個討論區看到一篇文章（文章已經被刪除），這篇文章講述一名香港理工大學電子計算學系兼讀制的研究生Chris Yuen被教授“玩”，最終浪費了數十萬元的學費以退學收場，而這位教授就是盧至力。

我並不在意這位同學被教授“玩”，什至浪費了數十萬元的學費，或者以退學收場等等。

我比較在意的是這位同學說他在申請研究學位的時候，這位“玩”他的教授用了他自己已submitted 的paper 作為他入學申請的研究計劃書以取得入學資格（請看以下內容及附件1.png, 2.png 及3.png）。這份paper 的題目為 “The Impact of SSD on Search Engine Cache Management” ，全名應為“The impact of solid state drive on search engine cache management”（你可以在http://dl.acm.org/citation.cfm?id=2484046找到）。這位教授只是其中的一位作者，我相信其他作者未必知道他會用 / 也未必會同意他用這份paper的內容或者部份內容作為這位同學入學申請的研究計劃書。為何這位教授會幫這位同學寫研究計劃書？當中有否利益輸送？不知道有否利益輸送，入學申請的研究計劃書應該為申請人自己寫的，當然也可以包含proposed supervisor的修改等等，以一位擁有豐富教學及研究經驗的教授，沒有理由不知道什麼是self plagiarism也沒有理由做出這種事情。 [The 9^th Statement]

這位副教授在香港理工大學的個人網頁http://www4.comp.polyu.edu.hk/~cscllo/ （這位副教授在香港中文大學的個人網頁https://appsrv.cse.cuhk.edu.hk/~ericlo)

除了這位兼讀制學生之外，不知道他所教授的其他學生會否因為他幫他們寫的研究計劃書而可以成功入讀該學系的研究課程, ...

[list of student names omitted]

...

當時我已經向香港理工大學研究事務處投訴此事，希望他們能夠對這位教授作出懲處及徹底翻查他的學生 畢業生， 看看有否同類情況的出現， 以證明香港理工大學的入學程序沒有不公平的地方。

等了很久，香港理工大學研究事務處只回覆調查進行中，於是我直接聯絡了該名同學。

原來該名同學也為此事直接向香港理工大學研究事務處投訴，但是香港理工大學研究事務處遲遲未有回覆。

每當他向香港理工大學研究事務處催促調查進度，他就會收到這位副教授盧至力所委託的律師行所寄出的律師信 (Cease and Desist Defamation Letter),

信 的內容大概要他承認自己在討論區所講的是誹謗了這位副教授（但這位副教授自己同時亦承認了用了自己有份的paper作為他學生的研究計劃書），

而且要他寫什麼書面承諾， 承諾不會再作出任何誹謗這位副教授的言論。

該名同學最初不知道這個關係，發覺了之後，就覺得這位副教授是想藉這份書面承諾向香港理工大學推翻或者取消該名同學的投訴。

不久，他收了第三封的律師信，他就向香港理工大學研究事務處反映，

並提出要求，希望能夠在香港理工大學研究事務處取回這份研究計劃書的正本或副本與律師商討或作回覆這幾封律師信之用，他等了很久。

香港理工大學研究事務處才回覆他要填申請表格及繳交所需費用，但是不保證一定會給他所要求取回的東西。

聽了之後，都明白是什麼一回事，他沒有提出這項申請，但是他也再沒有收到律師信了。

不久，他再問香港理工大學研究事務處調查進度如何，香港理工大學研究事務處說他們仍在審查他的投訴，而這位副教授已在五月開始轉到香港中文大學任教。

為什麼這位副教授初初以強硬的態度（向投訴人發律師信），之後不夠三個月的時間，卻低調地（放棄了現有的研究生）轉到香港中文大學任教？

為何香港理工大學研究事務處一直拖延這個投訴，到了很久仍然沒有結果？

副教授一職算是高職位，不知道香港中文大學在聘用這位副教授之前，有沒有作出嚴謹的背景調查？

當然聘任他與否會考慮很多因素，但是香港中文大學是一間香港很有名的大學，未必會聘用誠信有問題的人做副教授。

希望香港中文大學人事處能夠再一次審視這位副教授的背景調查，看看有沒有不當之處。

祝工作愉快，謝謝！

Janis.”

16.The translation of the 9^th Statement (as set out in paragraph 11 of the Statement of Claim) reads as follows:

“In about January this year, I have read an article (the article has been deleted) in a discussion forum. The article mentioned about a part-time research student named Chris Yuen from HKPU who has been tricked by a professor, which ended up wasting several hundred thousand dollars of tuition fees and withdrawing from study, and that professor is Lo Chi Lik.

I don’t care whether this student was tricked by the professor, even wasting several hundred thousand dollars of tuition fees or ended up withdrawing from study etc.

I do care about what this student said when he applied for admission to research study, this professor who tricked him used his own paper which has been submitted as his research proposal for admission to research study ... this professor is only one of the co-authors, I believe that the other authors may not know that he would use/may not agree for him to use the contents or part of the contents of the paper as the student’s research proposal for admission to research study. Why this professor would help this student to write the research proposal? Does it involve any improper transfer of benefits? Don’t know if there is any improper transfer of benefits, research proposal for admission to research study should be written by the applicant himself, of course it may include any amendments suggested by the proposed supervisor etc. As an experienced professor in teaching and research, there is no reason not to understand what is self-plagiarism and there is no reason to do such things.”

17.The plaintiff claims the 9^th Statement has the following natural and ordinary meanings:

1)  The plaintiff has deceived the defendant into believing the defendant could complete his part-time research study.

2)  The plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal.

3)  The plaintiff is to blame for wasting the defendant’s time and money to undertake part-time research unsuccessfully.

ISSUES

18.The issues of this case are summarized as follows:

1)  Whether the 9 Statements identified by the plaintiff bore the meanings pleaded in paragraphs 5, 9 and 13 of the Statement of Claim.

2)  Whether the 9 Statements, in their natural and ordinary meaning, are defamatory of the plaintiff.

3)  Whether the 8^th and 9^th Statements are republications of the 7 Statements.

4)  If any of the 9 Statements are found defamatory,

a)  whether the imputation crosses the threshold of seriousness.

b) whether the defendant is able to successfully raise the defence of justification.

c)  In respect of the 1^st, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Statements whether the defendant is able to successfully raise the alternative defence of fair comment.

5)  Whether the defendant has published the 7 Statements maliciously.

6)  Whether the defendant has republished or caused the 8^th and 9^th Statements to be republished maliciously.

THE LAW

19.Words are defamatory if the effect of such words would:

1)  Tend to lower the person’s reputation in the eyes of right-thinking members of society in general;

2)  Cause others to shun or avoid the person; or

3)  Expose the person to “hatred, contempt, or ridicule.”

(See paragraphs 1.7 and 2.1, Gatley on Libel and Slander, 12^th Ed)

20.A succinct summary of the principles can be found in the case of Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd 明報集團有限公司& Ors, HCA 607/2008 (28 May 2010) of which I set out below:

“[23] Gatley on Libel and Slander (2008) 11th Ed. recognised that there may be difficulty in producing a comprehensive definition of the meaning of “defamatory”; the following has been offered as (at least) a working definition of its meaning: a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule: Gatley, para. 2.1, text to nn. 4 to 7.

[24] The court puts itself in the position of an ordinary reader when construing the article in question; that is, the interpretation of allegedly defamatory words is determined by how an "ordinary reader" reasonably understands those words: Gatley, para. 3.13 and 3.24.

[25] The fictitious “ordinary reader” is described as one with the following temperament: -

“He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory” (Gatley, para. 3.25).

See also Charleston and Another v. News Group Newspapers Ltd. and Another [1995] 2 AC 65, 71F-72F (see also para. 52 below).

[26] The words have to be understood in context and taken as a whole, provided it all relates to the same defamatory meaning: Gatley, para. 3.28 to 3.30 and 3.32; 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.536. Words are to be taken in their most natural and obvious sense. The Plaintiff is not permitted to select any isolated passage(s) in an article and complain of that alone if other part(s) of the article throw a different light on the passage(s) in question.

[27] There are two stages to the process of determining whether words are defamatory: first to decide what they mean, and then to decide whether that meaning is defamatory: Gatley, para. 2.1. The purpose of the exercise is to ascertain the "sting" of the defamation (if any).

[28] A cause of action still lies even if the words were not believed by the audience (unless they were totally beyond belief): Gatley, para. 2.1, text to nn. 15 and 16. Thus:-

“For the purposes of the law of defamation, the fact that the same words can mean different things to different people is ignored; the court seeks to determine and act upon the one and only meaning that the readers as reasonable persons should have collectively understood the words to bear; this is the natural and ordinary meaning”: 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.535.

[29] A person who repeats a defamatory statement is no less liable than the one who initiated it: Gatley, para. 11.4. There is no general legal doctrine that a report of such a statement is not actionable unless the reporter endorses or “adopts” the statement: Gatley, para. 11.5, text to n. 48. Gatley called this “the repetition rule” and it will be so called below.

[30] Finally:-

(1) the mere intention to vex and annoy will not make the language defamatory if it is not so in its own nature;

(2) where defamation actions are tried by a single judge, it would be carrying artificiality too far to require the judge to arrive at the single “right” meaning by distinguishing between meanings which the words were capable of bearing, and then choosing the “right” one: Next Magazine Publishing Ltd. v. Oriental Daily Publisher Ltd. (2000) 3 HKCFAR 160.”

21.In determining what an ordinary and reasonable person would find defamatory, Lord Reid stated the following in the case of Rubber Improvement Ltd v Daily Telegraph Ltd [1964] A.C. 234 at pages 258 and 259: -

“The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

…

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Here there would be nothing libellous in saying that an inquiry into the appellants' affairs was proceeding: the inquiry might be by a statistician or other expert. The sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry. What those inferences should be is ultimately a question for the jury, but the trial judge has an important duty to perform.

…

In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.”

22.Furthermore, in order for allegations to be found defamatory, they must pass the “threshold of seriousness.” In the case of Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, Tugendhat J conducted a detailed analysis of various cases to conclude, at paragraph 90 of the judgment:

“I accept Mr Price’s submission that whatever definition of “defamatory” is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims.”

23.To understand what is meant or envisaged by the “threshold of seriousness,” I find it helpful to quote and refer to the following paragraphs of his Lordship’s judgment:

“20. Mr Price for the defendant submits that there are the following further legal principles to be applied:

(i) The threshold of seriousness. The hypothetical reasonable reader must not be unduly sensitive. So there must be a threshold of seriousness, and that threshold must be interpreted consistently with article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular, with the requirement of necessity in article 10.2:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such … restrictions … as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others …”

Mr Price's primary argument is based on the words of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1242. Lord Atkin gave a speech, with which the other two members of the appellate committee agreed. The ratio of that decision is therefore authority binding on all courts. Mr Price submits that this proposition is supported by the following words of Lord Atkin:

“That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character; and are treated as actionable wrongs.”

...

The threshold of seriousness

...

51. Amongst the definitions given by Neill LJ, definition (3) is distinguishable from the others in that it directs attention to the “estimation” of right-thinking persons, and make no express mention of any adverse consequences that might result. Attention is directed only to what is in the mind of the publishee. The threshold of seriousness in (3) is to be derived from the subsequent passage from Lord Atkin's speech cited above at para 20(i) above.

52. In each of the other definitions, some consequence adverse to the claimant is required, whether explicitly or implicitly. There is therefore in each of these other definitions a threshold of seriousness: there must be some tendency or likelihood of adverse consequences for the claimant.

...

59. I would give a different reason for preferring definition (6) to definition (3). It is that definition (6) expressly requires not just a change of opinion or estimation in the mind of the publishee, but, in addition, some adverse consequence upon the claimant.

...

82. Mr Price's submission therefore amounts to this: the test “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” is not a complete definition of what is defamatory. It is part of the definition. The other part of the definition is: would the lowering of the plaintiff in the estimation of such people be sufficiently serious so as to surmount the threshold envisaged (but not defined) by Lord Atkin?

83. In Ecclestone v Telegraph Media Group [2009] EWHC 2779 Sharp J did clearly apply a threshold of seriousness. In that case the defendant (the same defendant as in this case) published a diary piece about Ms Ecclestone. The meaning that Ms Ecclestone attributed to the words was that she “was disrespectful and dismissive of the McCartneys and Annie Lennox to the point of being willing to disparage them publicly for promoting vegetarianism”.

84. The defendants applied for a determination of whether the words were capable of bearing the meaning complained of. Sharp J was also invited to consider whether the words complained of were capable of bearing any defamatory meaning. It was on this second question that the argument and the judgment focused.

85. Sharp J, at para 17, reminded herself that the test is not whether a section of the public could think less of the claimant. She held that the imputation was not serious enough to be capable of being defamatory. So she struck out the action. She gave her reasons at paras 17, 19–20 and 22:

“17. … In our society people hold different (and sometimes strong) views on any number of issues including the use of animal products. In a democratic society where freedom of expression is a protected right, people are entitled to hold strong views, and to express them within the limits laid down by the law …

“19. … In my view the ordinary reasonable reader would see this sentence in the context in which it was used, as nothing more than the expression of a permissible view about an issue and matters on which some people hold strong opinions …

“20. … I do not think it could seriously be suggested that it is defamatory of someone to say, without more, that they were dismissive or showed a lack of respect to those individuals, however well respected they may be. As Mr Price said in argument, there is no obligation on a young person in today's society to be respectful to people such as Sir Paul McCartney; nor are people likely to think the less of the claimant merely because she expresses herself as not having much time for him because they hold different opinions on vegetarianism.”

“22. … a claim for defamation might arise where a claimant is alleged to have expressed views about people with whom he or she disagreed in such violent, excessive or abusive language that ordinary reasonable members of society might think the less of him or her for having done so. There may even be cases where a perceived lack of respect for a particular person in certain circumstances might be actionable in defamation. It seems to me however, that if the opinion expressed is an acceptable one there must be significant latitude given as to the manner in which it is expressed before right-thinking members of society would think the less of the person for expressing either their views, or their opinion of someone with whom they disagree.” (Emphasis added.)

86. There was no authority cited to me to support the proposition that the definition of defamatory contains no threshold of seriousness. Sim v Stretch [1936] 2 All ER 1237 is authority in the House of Lords for the proposition that the definition does include a threshold, albeit one which Lord Atkin illustrated but did not define.

87. The phrase “Hatred ridicule and contempt” did not fall out of use entirely after 1936. The editors of Gatley on Libel and Slander, 11^th ed still refer to Neill LJ's definition (1), at para 2.2. And that definition still appears at the head of his list of definitions in Duncan & Neill on Defamation, 3rd ed, at para 4.02.

88. There is, in one sense, nothing wrong with definition (1): if an imputation tends to bring a person into the hatred and contempt of right-thinking persons, then it will certainly be defamatory on any of the other definitions discussed above. The broader definitions include the narrow one. The sense in which definition (1) would be wrong would be if it were understood as setting a threshold of seriousness: on that basis the threshold that it would set would be too high.

89. “Hatred ridicule and contempt” was still the standard phrase being used by pleaders in the last paragraph of a statement of claim in libel as late the 1980s: see Hasselblad (GB) Ltd v Orbinson [1985] QB 475, 477 and Polly Peck (Holdings) plc v Trelford [1986] QB 1000, 1031. That traditional phrase was also used as the definition of defamation by Lord Reid in Broome v Cassell & Co Ltd [1972] AC 1027, 1085. However, according to the Faulks Report, at para 58, judges stopped using definition (1) after the decision in Sim v Stretch [1936] 2 All ER 1237 in 1936. The specialist libel counsel who continued to use that phrase were not doing so in conflict with Sim v Stretch or the judges. They were simply pleading the consequences or effects of the libels at a higher level of seriousness than they needed to.

Conclusion on seriousness

90. I accept Mr Price's submission that whatever definition of “defamatory” is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims. I accept this submission for two reasons. (i) It is in accordance with the true interpretation of Lord Atkin's speech in Sim v Stretch [1936] 2 All ER 1237. It is also in accordance with the decision of Sharp J in Ecclestone v Telegraph Media Group [2009] EWHC 2779 with which I respectfully agree. (ii) It is required by the development of the law recognised in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 as arising from the passing of the Human Rights Act 1998: regard for article 10 and the principle of proportionality both require it.

91. Nor can I see any reason for distinguishing business or professional defamation from other defamation in this respect. There must be a similar threshold in all cases.

...

94. There is a further point to be noted if my conclusion in paras 90 and 92 is correct. If this is so, then it explains why in libel the law presumes that damage has been suffered by a claimant. If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in Jameel (Yousef)'s case [2005] QB 946 declined to find that the presumption of damage was itself in conflict with article 10 (see para 37), but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant's reputation: see para 40.”

24.In summary, a statement will be found to be defamatory if the imputation is serious enough to cause adverse consequences to the plaintiff. Adverse consequences will include a lowering of one’s reputation in the eyes of an ordinary reasonable reader. It is not enough for a statement to be shown to be merely disrespectful or dismissive, though there may be cases in which the extremity of disrespect might be actionable as defamatory. However, if the statement complained of causes no damage or minimal actual damage to the plaintiff, the statement would not be found to be defamatory so to as to attract liability.

THE NATURAL AND ORDINARY MEANING OF THE 7 STATEMENTS

25.I note the meanings pleaded by the plaintiff as set out hereinabove at paragraphs 10(3), (5) and (6) are admitted by the defendant.

26.I have considered the 7 Statements individually and as a whole. I have also considered counsels’ submissions on the proper meaning of the 7 Statements.

27.I do not agree the 1^st Statement, whether read on its own or together with 7 Statements as a whole, bears the meaning the defendant was “deceived” to believe he could complete his part-time research study.

28.Firstly, the word “玩” does not necessarily translate to “deceive” or “deception”. Depending on the context in which the word is used, it could mean “play” or “trick”.

29.Secondly, deception requires a person to act in a manner or to do an act so as to cause someone to believe or accept something is true when it is not.

30.The defendant stated the following in the First Thread:

“I thought it was very important but he said the confirmation of registration was just paper-work and no one would care about it and if you did what I recommended, I can guarantee you must get the degree.

In fact, except for the confirmation of registration, the thesis and the oral examination will be examined by the external examiner and I did not think what he said was correct.”

31.The above passage clearly indicates the defendant knew the successful completion of his studies would be decided by an external examiner and not by the plaintiff alone. The defendant also pointed out he did not believe the representation made by the plaintiff (even if assuming such representation was in fact made). In other words, even if the plaintiff had made any representations to the defendant about the completion of his studies, the defendant did not believe such representations and therefore was not “deceived” as such. In such circumstances, I do not accept a reasonable reader of the First Thread would read the 1^st Statement to mean the plaintiff had deceived the defendant into believing he could complete his studies.

32.In respect of the 2^nd Statement, I am of the view that the natural and ordinary meaning must be that the plaintiff has committed plagiarism.

33.“Plagiarism” is defined in the Shorter Oxford Dictionary (6^th Edn) as follows:

“The action or fact of plagiarizing a work, idea, author etc.; literary theft; an act of instance of this.”

34.“Plagiarize” is defined in the same dictionary as:

“Take and use as one’s own (the thoughts, writings, inventions, etc., of another person); copy (literary work, ideas, etc.) improperly or without acknowledgement; pass off the thoughts, work, etc., of (another person) as one’s own.”

35.Appendix G of the HKPU Research Student Handbook adopts a similar definition of plagiarism as follows:

“Plagiarism refers to the act of using the creative works of others (e.g. ideas, words, images or sound etc) in one’s own work without proper acknowledgement of the source. According to the Webster’s Ninth New Collegiate Dictionary (1987), to plagiarise means: [T]o steal and pass off (the ideas or words of another) as one’s own: [t]o use (a created production) without crediting the source: [t]o commit literary theft: [to] present as new and original an idea or product derived from an existing source.”

36.The defendant states in the 2^nd Statement, “I thought that the paper had already been submitted and waited for result and he used the simplified version as my research proposal at the same moment.” It is clear the defendant means the plaintiff has used or, at the very least, is suspected of having used a submitted co-authored paper as part of the defendant’s research proposal, thereby imputing the plaintiff committed plagiarism.

37.I therefore find the 2^nd Statement to bear the natural and ordinary meaning as pleaded in paragraph 5(2) of the Statement of Claim (see also paragraph 10(2) hereinabove). 

38.In respect of the 3^rd Statement, the defendant does not dispute that when read in the context of the First Thread, the natural and ordinary meaning of the 3^rd Statement is that the plaintiff’s conduct was unreasonable for requesting to meet during work hours in the weekdays, knowing the defendant needed to work full time. I also find accordingly.

39.As for the 4^th Statement, whether read on its own or in the context of the First Thread, I am of the view the natural and ordinary meaning of this statement is to blame the plaintiff for not having advised the defendant of his competency thereby causing the defendant to have prolonged his studies and incurring unnecessary costs in the continuation of his studies. I find the 4^th Statement to carry the natural and ordinary meaning as set out hereinabove at paragraph 10(4).

40.In respect of the 5^th Statement, the defendant stated, “He assigned some works to me to publish a paper with other classmate. We submitted a paper to a VLDB but not accepted. He with my classmate published that paper in ICDE finally. Both papers are similar. Why the first one (not accepted) added my name but the second one did not have my name?”

41.The defendant admits this statement to bear the natural and ordinary meaning as pleaded in paragraph 5(5) of the Statement of Claim (see paragraph 10(5) hereinabove).

42.Though the pleaded natural and ordinary meaning is accepted by both parties, from the submissions of counsel, I gather there are 2 parts to this meaning. The first is whether the defendant should have been named a co-author of the ICDE paper. The second is whether the defendant’s work in the VLDB paper could be regarded as contribution to the ICDE paper and therefore should have been acknowledged in the ICDE paper. I shall deal with the same in more detail in the relevant section below.

43.In respect of the 6^th Statement, I am of the view the natural and ordinary meaning of the statement is that the plaintiff was unreasonable and impolite to the defendant. Furthermore, the plaintiff had no respect for others. This is the pleaded meaning at paragraph 5(6) of the Statement of Claim (see also paragraph 10(6) hereinabove), which is admitted by the defendant.

44.In respect of the 7^th Statement, I do not agree the statement whether read as a whole or on its own has the meaning as pleaded in paragraph 5(7) of the Statement of Claim (see also paragraph 10(7) hereinabove).

45.The defendant claimed the plaintiff acted in a manner so as to “frighten” Dr Chang out of giving him a response and referenced the quoted email as being the act that “frightened” Dr Chang. Yet, the email is not addressed to Dr Chang.  Furthermore, the email does not contain any words or meaning that could be interpreted as pressuring Dr Chang into refusing to take on the defendant as his student.  The plaintiff merely voiced his opinion of whether he felt the defendant was able to finish his studies and had made his opinion known to Dr Chang. I am of the view this falls far short from giving “pressure” to Dr Chang. Having read the quoted email together with the defendant’s comments in the 7^th Statement, I do not find a reasonable reader would read the 7^th Statement to mean the plaintiff pressured Dr Chang not to take on the defendant as his student.

46.Since I do not find the natural and ordinary meaning of the 7^th Statement, read together with the email quoted in the First Thread, to bear any defamatory meaning, it is unnecessary to consider the defence of justification and the Lucas-Box meaning pleaded by the defendant in this regard.

THE NATURAL AND ORDINARY MEANING OF THE 8^TH AND 9^TH STATEMENTS

47.The plaintiff pleads the 8^th and 9^th Statements, in its natural and ordinary meaning, carry the defamatory meanings as set out hereinabove at paragraphs 14(1) to (3) and 17(1) to (3) respectively.

48.The plaintiff claims that the 8^th and 9^th Statements are republications of the 7 Statements and/or a continuation of the 7 Statements. Therefore, the 8^th and 9^th Statements also carry the pleaded defamatory meanings.

49.The defendant denies the 8^th and 9^th Statements are republications. As transpired for the first time during the trial hearing, the defendant under cross-examination admitted he was the author of the 8^th and 9^th Statements. However, there was no application from the plaintiff to amend his pleadings and therefore the defendant, based on the plaintiff’s pleaded case, takes issue as to whether the plaintiff is able to prove the 8^th and 9^th Statements are republications “by another user”.

50.Though I understand the legal representatives of both sides were taken by surprise by the defendant’s admission of being the author of the 8^th and 9^th Statements, I cannot treat the pleading of republication by others to be equivalent to a pleading of publication by the defendant himself.

51.It is trite law that a republication of a defamatory statement gives rise to a cause of action separate and distinct from the actual publication of the statement: see Gatley on Libel and Slander paragraph 6.47.

52.As stated in Gatley on Libel and Slander at paragraph 6.52:

“Where a defendant’s defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the claimant may have a choice: he may (1) sue the defendant both for the original publication and for the republication as two separate causes of action, or (2) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.”

53.The basis of liability and the matters to be considered for the purposes of determining liability as against original authors and a person who republishes a defamatory statement are different. The plaintiff cannot therefore treat the pleading of republication by others to be synonymous to pleading the 8^th and 9^th Statements as original publications by the defendant. This is because if the defendant was pleaded as the original author of the 8^th and 9^th Statements, the defendant may (and is entitled to) raise defences specific to these statements.

54.If the plaintiff discovered the true author of the 8^th and 9^th Statements was the defendant, the plaintiff should have asked for leave to amend the pleadings. However, as the pleadings stand now, I am unable to find the 8^th and 9^th Statements to be republications by “another user”.

55.For sake of completeness, I shall deal with the natural and ordinary meaning of the 8^th and 9^th Statements.

56.Having read the 8^th Statement as a whole, I find the first sentence of the 8^th Statement to carry the same imputations of the 1^st and 4^th Statements. The first sentence of the 8^th Statement reads, “我並不在意這位同學被教授 “玩” ，什至浪費了很多金錢的學費，或者以退學收場等等。” The Second Thread is a response to the First Thread and therefore the repetition of whether the defendant was tricked and whether he wasted his money was a reference to the 1^st and 4^th Statements. The first sentence of the Second Thread is not merely a neutral reference to the contents on the First Thread but is a repetition and summary of the 1^st and 4^th Statements without any caveat. In such circumstances, the first sentence of the Second Thread should be regarded as having the same meaning as the 1^st and 4^th Statements of the First Thread.

57.For reasons set out in previous paragraphs, I do not find the 1^st Statement to bear the natural and ordinary meaning as pleaded in paragraph 5(1) of the Statement of Claim (see also paragraph 10(1) hereinabove). I therefore do not find the 8^th Statement to bear the meaning set out in paragraph 14(1) hereinabove.

58.Since I find the 8^th Statement to be a repetition of the imputation of the 4^th Statement, I find the 8^th Statement to carry the natural and ordinary meaning as set out in paragraph 14(3) hereinabove.

59.As for the rest of the 8^th Statement, I am of the view its natural and ordinary meaning is that the plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal. I therefore accept the 8^th Statement also carries the natural and ordinary meaning as set out in paragraph 14(2) hereinabove.

60.The plaintiff claims the 9^th Statement carries the meanings as set out in paragraphs 17(1) – (3) hereinabove. Like his claim in the 8^th Statement, the plaintiff claims the 9^th Statement is a republication of the 7 Statements and/or a continuation of the 7 Statements. He alleges that therefore, the 9^th Statement also carries the 3 said defamatory meanings.

61.Although the Janis Wu Email is not part of the First or Second Thread, it clearly makes reference to the said Threads of discussion in the 2^nd paragraph of the email. It then states at the second paragraph of the 9^th Statement, “我並不在意這位同學被教授“玩”，什至浪費了數十萬元的學費，或者以退學收場等等。”

62.Similarly, like the 8^th Statement, this sentence is not a mere reference to the First Thread. It is a repetition of the meanings set out in the 1^st and 4^th Statements.

63.For reasons similar to that given for the 8^th Statement and 1^st Statement, of which I shall not repeat, I do not find the 9^th Statement to carry the natural and ordinary meaning as set out in paragraph 17(1) hereinabove.

64.For reasons previously given, I find the second paragraph of the 9^th Statement to bear the same natural and ordinary meaning as the 4^th Statement.

65.The remainder of the 9^th Statement is identical to the second paragraph of the 8^th Statement. Hence similarly, I am of the view the natural and ordinary meaning of the rest of the 9^th Statement is that the plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal.

66.I therefore find the 9^th Statement to carry the natural and ordinary meanings as set out in paragraphs 17(2) and (3) hereinabove.

WHETHER THE NATURAL AND ORDINARY MEANINGS OF THE 9 STATEMENTS ARE DEFAMATORY

67.By reason of the plaintiff failing to prove the 8^th and 9^th Statements are “republications by another user”, there is no need for this court to consider whether the 8^th and 9^th Statements are defamatory. However, if I am wrong and was required to consider whether the said statements are defamatory, for reasons set out below, I would find the 8^th and 9^th Statements to be defamatory in so far as they carry the meanings set out in paragraphs 14(2) and 17(2) hereinabove.

68.I am of the view that the natural and ordinary meaning of the 2^nd Statement is defamatory by imputing the plaintiff may have committed plagiarism, thereby putting the professional and academic integrity of the plaintiff into question.

69.I am also of the view that 5^th Statement calls the plaintiff’s professionalism and/or academic integrity into question by imputing the plaintiff had used the defendant’s work without acknowledging the same.  

70.It is settled law that imputations on the knowledge or competency of businessman or a professional can amount to defamation. In the case of Drummond-Jackson v British Medical Association [1970] 1 WLR 688, Lord Pearson said at page 698H: -

“In any case, words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity ...”

71.In respect of the 3^rd, 4^th and 6^th Statements, the defendant contends that the imputations in those statements, if any, do not cross the seriousness threshold test.

Threshold of seriousness

72.The “threshold of seriousness” is succinctly explained in paragraph 2.4 of Gatley on Libel and Slander. I summarize the salient principles as follows:

1)  Even if an imputation is found to be defamatory, the imputation must pass a threshold of seriousness so as to exclude trivial claims.

2)  In considering whether the threshold of seriousness has been met, the court shall consider matters such as:

a)  The nature and inherent gravity of the allegation;

b) Whether the publication was oral or written;

c)  The status and number of publishees and whether the allegations were believed;

d) The status of the publisher and whether it makes it more likely the allegation was believed; and

e)  The transience of the publication.

73.The leading case on the threshold of seriousness as cited in Gatley on Libel and Slander is the case of Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. In his judgment, Tugendhat J conducted an extensive analysis of the authorities in arriving at his conclusion that an imputation must cross a threshold of seriousness before liability would be found on a defamatory remark. In arriving at his conclusion he cited the case of Ecclestone v Telegraph Media Group [2009] EWHC 2779 in which Sharp J applied the threshold of seriousness. I have quoted the relevant passages of Tugendhat J’s judgment at paragraph 23 hereinabove, of which I shall not repeat.

74.The 3^rd and 6^th Statements are complaints about the plaintiff’s unreasonable behaviour. Although I accept the natural and ordinary meaning of these statements to be as pleaded in paragraphs 5(3) and (6) of the Statement of Claim (see paragraphs 10(3) and (6) hereinabove), I do not accept these statements cross the threshold of seriousness.

75.I am of the view that these complaints are trivial in nature and do not have any bearing on the plaintiff’s professionalism or reputation. The statements made in the 3^rd and 6^th Statements are merely grievances harboured by the defendant on what he perceives to be disrespectful treatment. However, his grievances are not imputations serious enough to cause a right-thinking member of society to think less of the plaintiff. Furthermore, I am of the view that the nature of these comments are similar to those as described at paragraph 20 of Sharp J’s judgment in Ecclestone.  I do not accept these statements have any adverse consequences on the plaintiff.

76.As for the 4^th Statement, I am of the view the meaning of this statement is not defamatory. Other than saying the plaintiff perhaps should have told or advised the defendant to leave the study program earlier, he does not make any other allegations against the plaintiff as to why the plaintiff is to be blamed for the defendant’s monetary and time loss. I do not find this statement to be an attack on the plaintiff’s reputation or professionalism. I therefore do not regard this statement as being defamatory and I do not find this statement to be capable of causing any adverse consequence to the plaintiff.

77.For reasons already given, I do not accept the 1^st and 7^th Statements have the natural and ordinary meanings pleaded in the Statement of Claim. I therefore do not find these statements to be defamatory.

DEFENCES AGAINST THE 2^ND AND 5^TH STATEMENTS

78.The pleaded natural and ordinary meanings of the 2^nd and 5^th Statements are as follows:

1)  The 2^nd Statement: The plaintiff is guilty of self-plagiarism and/or breach of copyright by allowing the defendant to use the plaintiff’s co-authored article as his research proposal.

2)  The 5^th Statement: The plaintiff’s conduct was unreasonable and improper by not acknowledging the defendant’s contribution in the published research paper.

79.The defendant raises the following main defences against the 2^nd and 5^th Statements:

1)  Justification for the 2^nd and 5^th Statement; and

2)  Fair Comment for the 5^th Statement.

80.I have set out the definition of plagiarism at paragraphs 33– 35 hereinabove of which I shall not repeat.

81.I set out the relevant legal principles below.

Justification

82.It is a defence for the defendant to establish the imputation is substantially true.

83.The defence of justification is codified in section 26 of the Defamation Ordinance (Cap 21) as follows:

“In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

84.The defendant is only required to prove the main charge or gist of the imputation is true. If the defendant can prove the main charge or gist of the imputation is true, a slight inaccuracy in one or more of the details will not render his defence nugatory. Whether the substantial truth has been proven is an objective requirement. The court is required to a consider the facts as they were, not facts as they appeared to be to the defendant. (See Gatley on Libel and Slander paragraphs 11.1, 11.4, and 11.7)

Fair Comment

85.The legal principles on the defence of fair comment are succinctly set out in the case of Cheng v Tse Wai Chun (2000) 3 HKCFAR 339 at page 347 as follows:

“In order to identify the point in issue, I must first set out some non-controversial matters about the ingredients of this defence. These are well established. They are fivefold. First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375 at p.391.

Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes, it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v Smith’s Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20 at p.26:

“To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.”

Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375 at p.395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449 at p.461, commenting on an observation of Lord Esher MR in Merivale v Carson (1887) 20 QBD 275 at p.281. It must be germane to the subject matter criticised.

Dislike of an artist’s style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at p.174.

These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence.”

86.The defence of fair comment is codified in section 27 of the Defamation Ordinance (Cap 21) as follows:

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

87.Hence, the defendant would still be able to make out the defence of fair comment so long as the facts on which the comment is based on, though not wholly true, are substantially true.

88.I shall now deal with the imputations set out in the 2^nd and 5^th Statements.

The 2^nd Statement: The Research Proposal

89.The plaintiff does not dispute the following matters:

1)  He drafted the defendant’s research proposal for him.

2)  He used the material in the paper entitled “The Impact of Solid State Drive on Search Engine Cache Management” (“the SSD paper”) in the defendant’s research proposal.

3)  The plaintiff co-authored the SSD paper with 5 other students.  

4)  There is no acknowledgement in the defendant’s research proposal the 5 other students or their work on the SSD paper.

5)  The plaintiff had not sought the consent of the 5 other students before using the work in the SSD paper in the defendant’s research proposal.

6)  The research proposal was handed in on or about 8 December 2012.

7)  The SSD paper was submitted for the SIGIR 2013 conference. The deadline for submitting the abstract of the paper was 21 January 2013 and the deadline for submitting the full research paper was 28 January 2013.

8)  The SSD paper was eventually published for the SIGIR conference on 28 July 2013.

90.The plaintiff claims there is no plagiarism for the following reasons:

1)  The SSD paper was still in its draft form and not yet published. It is not possible to plagiarize a draft paper.

2)  He is the main author of the SSD paper and therefore he has the right to use the paper however he wishes. It is pleaded in the plaintiff’s Reply at paragraph 11(5):

“... the fact that the Plaintiff is the major author of the draft co-authored Conference Paper means that the Plaintiff is fully entitled to use the draft Conference Paper for research and private study purposes including assisting the Defendant to formulate a research proposal on the topic of the draft Conference Paper.”

3)  He intended to “let” the defendant join this project and “investigate the remaining open problems there, in which the results of successfully solving the remaining open problems can be published as a journal paper.” He further states, “[t]hat kind of journal submission, based on extending a conference version, is called “conference paper extension” in my field.” (see paragraph 4 of the plaintiff’s witness statement)

91.The plaintiff further contends the following:

1)  The defendant cannot succeed in his defence because the defendant is unable to prove the plaintiff had used a “submitted paper” in compiling the research proposal.

2)  HKPU’s investigation of the complaint made in Janis Wu’s Email concluded the complaint was unsubstantiated. Hence the defendant is unable to prove his imputation to be true.

92.Having read and compared the defendant’s research proposal and the SSD paper, it is evident the research proposal is largely similar, if not identical, to the SSD paper:

1)  The research proposal and SSD paper investigates the same subject matter and involves the same methodology.

2)  Paragraphs 2.1 and 2.2 of the research proposal are largely copied from paragraphs 2.1 and 2.2 of the SSD paper.

3)  The references and citations used in the research proposal and the SSD paper are largely similar.

93.Having considered the submissions of counsel and the evidence of the witnesses, I find that there is sufficient evidence to show the defendant’s allegation the plaintiff may have committed plagiarism to be substantially true.

94.As a matter of common sense, the plaintiff and his students must have been working on the SSD paper much earlier than the date of the submission of the defendant’s research proposal. This is supported by the plaintiff’s email to the defendant dated 7 December 2012 where the plaintiff stated:

“Don’t worry about the title – indeed we can freely change your thesis topic after registration. I eventually used that title because I happened to have a proposal written and ready, which is of higher quality... .” (Emphasis added)

95.It is clear from the plaintiff’s email the SSD paper was written before the research proposal was given to the defendant, and obviously the SSD paper was sufficiently complete to enable the plaintiff to copy most of it into the defendant’s research proposal. This is supported by the fact that the submitted version of the SSD paper is largely similar to the contents of the research proposal. This must mean the SSD paper was already written and finalized (or almost finalized, at the very least) by the plaintiff and his co-authors well before 7 December 2012.

96.I therefore do not accept the plaintiff’s contention that the SSD paper was only a “draft paper” when it was used for the research proposal. It is clear the SSD paper had either been completely written up or, at the very least, largely written up by the time the plaintiff copied it into the research proposal.

97.Whether or not the paper has been published for a conference or elsewhere is not determinative of plagiarism. So long as the work or idea exists and was formulated by others, the use of it should be acknowledged. Even if assuming the SSD paper was only in draft form when it was used in the research proposal, I do not accept that it is impossible to plagiarize a “draft paper.”

98.Furthermore, I do not accept there is a distinction between authorship when considering plagiarism. All contributors to any academic paper, whether their contribution be substantial or not, owns the rights of that particular paper. The whole concept of plagiarism is to guard against misappropriation of the original ideas or work by those whom are not its original creator. Once a group of people work on an idea or a hypothesis, the results of that investigation or study is an intellectual property that belongs to the group collectively and not to only one or two persons within that group. This is why the SSD paper lists out the various co-authors at length. Hence I do not accept the plaintiff was entitled to use the SSD paper without acknowledging his co-authors, even if he was a “major” author.

99.As to the whether the plaintiff intended to “let” the defendant join in on the collaborative effort of the SSD paper or otherwise, this is not relevant. The fact that the SSD paper was used meant the plaintiff had the responsibility of acknowledging the work of his co-authors. The plaintiff’s intention on the defendant’s future role in the SSD paper in the research proposal has no bearing on whether co-authors of the paper should be acknowledged or not.

100.I note that my view on the duty to acknowledge co-authors in these circumstances is supported by the evidence of the plaintiff’s witness, Dr Chang. He opined that if he had co-authored a paper with others and used the paper substantially, he would also cite the co-authors in his work.

101.There were also lengthy arguments on whether the defendant had consented or knew beforehand the plaintiff would propose to use the contents of the SSD paper in the research proposal. I am of the view that this is irrelevant in determining whether the sting of the 2^nd Statement is substantially true. The act of plagiarism is completed when the plaintiff used the contents of the SSD paper in the research proposal without acknowledging his co-authors and subsequently submitted the research proposal to HKPU. Whether or not the defendant connived in the process or consented to the contents of such a paper being inserted into the research paper is irrelevant to whether the plaintiff himself had committed plagiarism.

102.As for the plaintiff’s contention that HKPU had not found the plaintiff to be guilty of plagiarism, I am of the view that this is of no assistance to the court. Firstly, the investigation is based on the plaintiff’s explanation of the matters set out in his email to Professor Cao dated 10 January 2016. In paragraph 3 of his email, he stated:

“My research idea for him is to extend my SIGIR 2013 published *conference* paper to be a *journal* paper. I told him that I want him to add new material to my conference paper to be a TOIS journal paper (which accepts extended conference paper if it has 50% new material). Therefore, his proposal is based on my published *conference* paper but with new content about the possible extensions.”

103.The plaintiff admits that the description “conference paper” is incorrect but does not offer a reasonable explanation as to why he repeatedly called the SSD paper a “conference paper” when he clearly knew it was not published when he wrote the email. In such circumstances, it is not clear whether, if given the correct information, HKPU’s investigation result would have been different.

104.Secondly, on the plaintiff’s own admission, the HKPU was not privy to the extensive email correspondences between the plaintiff and defendant that are now produced before this court. In particular, HKPU was not privy to the email sent by the plaintiff to the defendant dated 7 December 2012. Furthermore, other than the Janis Wu Email, the HKPU had not asked the plaintiff for any further information on the matter. It is therefore unclear to this court whether conclusion reached by the HKPU was reached after a consideration of all the material that is presently available to this court.

105.Thirdly, HKPU did not explicitly state they found the plaintiff to be innocent from plagiarism. HKPU merely confirmed the compliant was unsubstantiated.

106.By reason of the matters set out above, I therefore do not find the conclusion of the HKPU investigation to be conclusive or determinative of whether the plaintiff may have committed plagiarism.

107.Having considered all the evidence, I find the defendant is able to prove the substantial truth of the 2^nd Statement and I find the defence of justification made out on the 2^nd Statement.

108.If I was required to make a determination on the 8^th and 9^th Statements, I would similarly find the defence of justification made out for those two statements.

The 5^th Statement: The VLDB paper and the ICDE paper

109.As pointed out hereinabove, there are 2 parts the ordinary and natural meaning that have been subject to argument by counsel: the first is whether the defendant should have been named a co-author of the ICDE paper. The second is whether the defendant’s work in the VLDB paper could be regarded as contribution to the ICDE paper and therefore his contribution as such should have been acknowledged in the ICDE paper.

110.The following facts are not disputed:

1)  The VLDB paper was submitted to the 2014 VLDB conference with the intention of publication.

2)  The first submission was rejected. The plaintiff and defendant modified the paper and re-submitted it again. The re-submission was further rejected.

3)  The VLDB paper was never published.

4)  The ICDE paper investigates the same topic as the VLDB paper.

5)  The defendant is not a co-author of the ICDE paper. Furthermore, neither the defendant’s name nor the VLDB paper were mentioned in the ICDE paper.

6)  The plaintiff had considered the results produced by the defendant in the VLDB paper.

7)  The defendant was not asked to participate in the ICDE paper.

111.I shall first deal with the defence of justification.

112.The plaintiff claims there was no need to mention the defendant in the ICDE paper because he did not use the defendant’s test results in the paper. He claims that the VLDB paper uses TPC-DS queries whereas the ICDE paper uses TPC-H queries. By reason of any lack of contribution from the defendant on the ICDE paper, the plaintiff was not obliged to acknowledge the defendant in the said paper.

113.I agree with the plaintiff in that there was no duty for the plaintiff to name the defendant as the co-author of the ICDE paper. It is not disputed the defendant was not asked to participate in the process of compiling or the write-up of the ICDE paper. In such circumstances, the defendant is not justified to say the plaintiff had failed to acknowledge his contribution by failing to name him as a co-author.

114.However, I am of the view that the defendant was justified in complaining the plaintiff had unreasonably failed to acknowledge his contribution in the ICDE paper.

115.Having read and compared the two papers, it is evident the contents are largely similar in the follow respects:

1)  The same algorithms, figures, citations, and references are used in both papers.

2)  Both papers use the same methodology.

3)  Large sections of the same wording in the VLDB paper is used in the ICDE paper.

116.It is a basic principle of plagiarism that if one substantially copies the works of others without acknowledging the original source of the work, one commits plagiarism.

117.If the defendant was a co-author of the VLDB paper and the ICDE paper was substantially copied from the VLDB paper, the defendant’s efforts in the VLDB paper must have been of some contribution to the ICDE paper. 

118.Though the plaintiff claims the type of data used in the 2 papers are different, there has not been any evidence before this court to explain the difference between TCP-DS data and TCP-H data, the difference these 2 types of data will cause to the conclusion of the paper, and the extent of the difference caused by using different data sets to the ICDE paper.  Hence I am unable to accept the plaintiff’s claim that the defendant’s data and his work in the VLDB paper is no value to the ICDE paper.

119.Even if, for argument’s sake, the defendant’s data was not helpful in arriving at the conclusion of the ICDE paper or that such data was not used at all in the ICDE paper, I am of the view the plaintiff should have acknowledged the VLDB paper.

120.It is clear the ICDE paper is work based on the VLDB paper and builds upon the errors learnt via the VLDB paper. As conceded by the plaintiff, the results of the data used in VLDB paper were considered when writing the ICDE paper. It therefore should have been acknowledged in the ICDE paper, even if the defendant is not named as a co-author of the ICDE paper.

121.In such circumstances, by failing to acknowledge the defendant in the ICDE paper (whether by way of citation of the VLDB paper or otherwise), the plaintiff must have acted either unreasonably or improperly. 

122.I therefore find that even if the ICDE paper is not considered a plagiarised work of the VLDB paper by reason of the different data used, the defendant is correct to question the proprietary in the plaintiff’s failure to acknowledge the original source of the idea from his paper came from. I therefore find the defendant’s allegation in the 5^th Statement to be justified.

123.Even if I am wrong and the defendant was not justified in making the 5^th Statement, I am of the view the defence of fair comment is made out.

124.In so far as the defendant seeks to raise the defence of fair comment, the plaintiff only takes issue on 3 matters:

1)  First, whether the statement is a comment;  

2)  Second, if the statement is a comment, whether the comment is based on true facts; and

3)  Third, whether the defendant was actuated by malice in making the statement, thereby losing the protection the defence affords.

125.Having considered the evidence and the fact that this issue is not being disputed by the parties, I am satisfied that the public interest element is made out.

126.In considering whether a statement is a statement of fact or a comment, Kwan JA in Centa-City Index Co Ltd & Ors v Hong Kong Economic Journal Co [2016] 4 HKC 53 (CA), at paragraphs 36 and 39, stated as follows:

“36. A statement which is potentially one of fact may be one of evaluative opinion depending on the context. 'The context of a publication might alter the nature of its contents', so 'a statement which on its face appears to be an assertion of fact, might be found to be comment if it is the speaker’s conclusion drawn from facts which are contained within the publication.' (Harrigan v Jones at §79, per Mathews AJ) In Cheng & Anor v Tse Wai Chun at 347E to F, Lord Nicholls referred to this example given by Ferguson J in Myerson v Smith’s Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20 at 26:

‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.’

...

39. Thus, where the statements in question are derived as inferences or conclusions suggested by the material set out in the articles, they are more likely to be construed as comment or statements of opinion, particularly when they are statements expressed in judgmental terms (Petritsis v Hellenic Herald Pty Ltd at 196E). A similar approach to construction was adopted in British Chiropractors Association v Singh at §§24 to 26, 28 and 33; Harrigan v Jones at §§ 83 to 89; Mitchell v Sprott [2002] 1 NZLR 766 at §§27 to 28.”

127.The defendant listed out a set of facts and then asked the question why was he not acknowledged in the ICDE paper. I am of the view that a reasonable reader would read the last sentence of the 5^th Statement, which contains the ultimate sting, as being a comment. I therefore find the last sentence of the 5^th Statement to be a comment and not an imputation of fact.

128.As to whether the comment is based on true facts, the 5^th Statement sets out 4 imputation of facts as the basis of his comment:

1)  “He assigned some works to me to publish a paper with other classmate.”

2)  “We submitted a paper to a VLDB but not accepted.”

3)  “He with my classmate published that paper in ICDE finally.”

4)  “Both papers are similar.”

129.The facts set out in paragraphs (1), (2) and (4) above are true, whereas the fact set out in paragraph (3) is not. Although the VLDB paper and ICDE paper are largely similar, it is clear both are separate papers. It is therefore incorrect to say the plaintiff had submitted “that” paper to the ICDE conference.

130.Despite it was incorrect for the defendant to have said the plaintiff published “that” paper, I find the other facts set out are substantially true. I also note that though the defendant says the plaintiff published “that” paper, he then says in the following sentence that both papers are similar. It is therefore unclear whether the defendant meant to say the plaintiff published the exact same paper or had published a similar paper in ICDE conference.

131.For reasons I have given in paragraphs 115 – 120 hereinabove, I find the defendant’s comment to be a fair one. Given the 2 papers are largely the same in content, I am of the view it was fair for the defendant to question why his contribution via the VLDB paper was not properly acknowledged.

132.In so far as the plaintiff claims the defendant was actuated by malice, I reject the contention.

133.Although the defendant had not been forthcoming about his authorship of the 8^th and 9^th Statements prior to his oral evidence, I note he frankly admitted, whilst giving evidence under oath, he used the pseudonyms of Clever Chan and Janis Wu.  

134.It is not disputed that HKPU never answered the complaint made by the defendant. It is apparent the defendant was, and possibly still is, aggrieved by what he perceived as mistreatment by the plaintiff. However, this is not equivalent to malice. Having considered the submissions of counsel, the documentary evidence, and the evidence of the witnesses, I accept the defendant wrote the 9 Statements in hope of getting HKPU to address his grievances.

135.Though it may not seem like the cleverest or most mature way of handling the matter, I find the defendant’s acts to be short of malicious. I do not find the defendant to have purposely published any false allegations against the plaintiff. His comment is based on the objective fact that his VLDB paper and the ICDE paper are largely similar.  Given the circumstances, it is no surprise the defendant made the comment he did in the 5^th Statement.  I therefore do not accept the defendant was actuated by malice when he made his comment in the 5^th Statement.

136.By reason of the matters set out above, I find the defendant is able to successfully raise the defence of fair comment.

SUMMARY

137.By reason of the matters set out above, although I find the 2^nd and 5^th Statements to be defamatory, I find the defendant to have successfully raised the defence of justification against these 2 statements, and the defence of fair comment against the 5^th Statement.

138.I therefore dismiss the plaintiff’s claim in its entirety.

139.I see no reason why costs should not follow the event. I make a costs order nisi that the plaintiff do pay the defendant’s costs of this action to be taxed if not agreed, with certificate for counsel. Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.

Mr Richard Sham, instructed by Hau, Lau, Li & Yeung, for the plaintiff

Ms Van Ma, instructed by Mike So, Joseph Lau & Co, for the defendant