Lo Chi Lik Eric v. Yuen Chi Ho Chris

CAMP 13/2021

[2021] HKCA 631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 13 OF 2021

(ON AN INTENDED APPEAL FROM DCCJ NO. 2702 OF 2016)

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Before : Hon Cheung and Chu JJA in Court

Date of Decision : 30 April 2021

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. Background

1.1The plaintiff was an associate professor in computing at the Hong Kong Polytechnic University (‘HKPU’).  The defendant was his former part time research student.

1.2The plaintiff claimed he was defamed by nine statements published by the defendant.  Deputy District Judge W. Y. Ho found that only two of the statements, namely Statement 2 and Statement 5, carried defamatory meaning.  She, however, found that the defendant was successful in his defence of justification in respect of the two statements and also in his defence of fair comment in respect of Statement 5.  The plaintiff now renews before us his application for leave to appeal against the judgment having failed to obtain leave from the Judge.  We will deal with the application on paper.

1.3Statement 2 deals with the content of the research proposal entitled ‘The Impact of SSD on Search Engine Cache Management’ (‘the Research Proposal’) that the plaintiff had submitted on the defendant’s behalf for the purpose of the defendant’s application for a research degree and its similarity to a paper entitled ‘The Impact of Solid State Drive on Search Engine Cache Management’ (‘the SDD Paper’) that the plaintiff published with other authors. Statement 5 deals with the similarity in content of a research paper that the defendant did for the plaintiff (‘the Amended VLDB Paper’) and that of a paper published by the plaintiff with another author (‘the ICDE Paper’).  The two statements are reproduced below :

Statement 2

‘ 1. After I had read some journal papers recommended by him [plaintiff] 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 …

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.’

Statement 5

‘ 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?’

1.4The plaintiff pleaded Statement 2 had the natural and ordinary meaning that the plaintiff was ‘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’.  The Judge found that Statement 2 bore the natural and ordinary meaning that the plaintiff had committed plagiarism ([68] of judgment below).  The Judge then dealt with the defence :

‘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.’

1.5The plaintiff pleaded that Statement 5 had the natural and ordinary meaning that the ‘plaintiff’s conduct was unreasonable and improper by not acknowledging the defendant’s contribution in the published [ICDE Paper]’.  The Judge found that Statement 5 ‘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’.  The Judge dealt with the defence and held :

‘ 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.

...

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.’

1.6The Judge also rejected the plaintiff’s contention that the defendant was actuated by malice.

II.   Grounds of appeal

1)   Ground 1

2.1The plaintiff argued that a libel can have three levels of meanings – (1) a plaintiff has, in fact, committed some serious act, (2) there are reasonable grounds to suspect that he has committed such an act, or (3) there are grounds for investigating whether he has been responsible for such an act.  A defendant cannot justify a defamatory imputation by merely proving that there are grounds to suspect that a plaintiff is guilty of that behaviour.  Although the Judge accepted that Statement 2 bore the natural and ordinary meaning 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’, what she held at [93] of the judgment is that ‘there is sufficient evidence to show the defendant’s allegation the plaintiff may have committed plagiarism to be substantially true’.  As such the defendant could only prove that the plaintiff may have committed plagiarism, i.e. a ‘level 2’ meaning.  The defendant could not be justified in respect of Statement 2 which carried a ‘level 1’ meaning.

2.2In our view the judgment on Statement 2 must be read as a whole.  Properly read the Judge clearly meant the defendant’s justification defence is substantially true in respect of the charge that the plaintiff had committed plagiarism.  This ground is not reasonably arguable.

2)   Ground 2

2.3The plaintiff argued that where a single publication includes a number of separate and distinct imputations, each of such imputations is separately actionable.  The Judge held at [42] and [109] of the judgment that one of the two natural and ordinary meanings of Statement 5 is that the plaintiff’s conduct was unreasonable and improper by not acknowledging the defendant’s contribution in the ICDE Paper and by not naming the defendant as a co‑author.  Although the Judge found the defendant had succeeded on the issue that the plaintiff had not acknowledged his contribution, she held at [113] that the defendant was not justified to say the plaintiff had failed to name him as a co‑author.  As Statement 5 contains two distinct imputations and the defendant failed to prove one of the two imputations was to be true, the defence of justification in respect of Statement 5 must fail. 

2.4Again in our view this point is not reasonably arguable.  The defamatory meaning as found by the Judge is set out in [1.5] above, namely, the plaintiff did not acknowledge the defendant’s work.  Her discussion on the paper not naming the defendant as a co‑author was unnecessary for the purpose of her decision.

3)  Ground 3

2.5The plaintiff argued that for Statement 2, plagiarism is an academic issue and not a legal one.  The court is incompetent to rule on an academic issue. 

2.6This point was not raised below and the parties proceeded on the assumption that plagiarism was a justiciable issue.  In our view the plaintiff is not allowed to raise this point on appeal, which, if taken, will have an impact on the issue of evidence and how the trial was conducted before. 

4)  Grounds 4 and 5

2.7The plaintiff argued that the defence of justification in respect of Statement 2 and Statement 5 is pleaded in [10] and [13] of the defence.  In gist, the defendant’s pleaded case in respect of Statement 2, was merely that the research proposal is essentially the same as part of the SSD Paper and, in respect of Statement 5, the plaintiff should have considered the Amended VLDB Paper when authoring the ICDE Paper.  In other words, it is not the defendant’s pleaded case that the plaintiff had copied anything from the SSD paper into the research proposal.  It is also not the defendant’s pleaded case that the plaintiff had actually considered the defendant’s work when authoring the ICDE Paper.  However, at [94] to [97] and [117] to [120] of the judgment, the Judge made findings essentially to these effects, which were not even the defendant’s pleaded case.  Based on those findings, the Judge erroneously held that the defence of justification was made out.

2.8In our view the defence had sufficiently pleaded that the issue was the similarity of the respective sets of documents.  The Judge’s finding was clearly based on the plea of similarity.

5)  Grounds 6 and 7

2.9The plaintiff argued that the findings of justification are plainly wrong.  We disagree.  The documents were before the Judge.  She was entitled to make the findings based on the evidence before her.

6)  Grounds 8 and 9

2.10The plaintiff argued that the Judge only ruled that one of the two meanings of Statement 5 was a fair comment.  The other meaning is not a fair comment.  This alone is sufficient to reject the defence of fair comment.  When the facts relied upon by the defendant are plainly wrong, he must know Statement 5 to be untrue, and/or was reckless as to its truth or falsity, and did not have any honest belief in its truth.  He must be actuated by malice. 

2.11We disagree.  The plaintiff’s argument proceeded on the false premises that there were two defamatory meanings.  As pointed out earlier, this is not correct.  In any event the finding of justification is already a complete defence to the plaintiff’s claim.

III.    Conclusion

3.1The plaintiff fails to satisfy the threshold for obtaining leave.  Accordingly the application is refused with costs to the defendant. This Court will assess the costs summarily.  The plaintiff is to file and serve his statement of objection to the defendant’s statement of costs within seven days.

3.2As the plaintiff’s application is totally without merit, pursuant to Order 59, rule 2A(8), we will make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.

Mr William Wong SC and Mr Patrick Siu, instructed by ONC Lawyers, for the plaintiff

Mr Alan Ng Man Sang and Ms Van Ma, instructed by Mike So, Joseph Lau & Co, for the defendant