Breton Jean v. HK Bellawings.Jet Ltd and Others

DCCJ 4000/2021

[2024] HKDC 1695

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4000 OF 2021

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BETWEEN

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J U D G M E N T

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Introduction

1.The Plaintiff brought this defamation claim against his former employer (the 1^st Defendant)  and three of his former colleagues (the 2^nd to 4^th Defendants).  The Plaintiff obtained default judgment on liability against the 2^nd and 3^rd Defendants on 16 June 2022 with damages to be assessed; the assessment of damages has yet to take place.

2.What I had before me was the trial between the Plaintiff and the 1^st and 4^th Defendants on both liability and quantum.  Neither the 1^st and 4^th Defendants nor the factual witness of the 1^st Defendant attended the trial, and I would disregard their witness statements accordingly.  The Plaintiff testified at the trial by adopting his witness statement and he called no other witness.

Background

3.The 1^st Defendant is a company incorporated in Hong Kong.  At all material times, the 1^st Defendant carries on business as a jet management company.

4.The Plaintiff acquired a Bachelor of Science Degree in Professional Aeronautics from Embry-Riddle Aeronautical University.  Having worked in other airlines, the Plaintiff was employed by the 1^st Defendant as a corporate pilot from 12 July 2015 until he was summarily dismissed on 31 December 2016.  He was first employed as captain and was promoted on 10 December 2015 to the position of lead captain of VPCCE, which is a Bombardier registered under the Civil Aviation Authority of the Cayman Islands.  He held a valid Federal Aviation Authority Air Transport Pilot Licence, with a valid Bombardier Challenger CL-604 aircraft type rating.

5.VPCEE used to have three pilots, namely the Plaintiff as the lead captain, the 2^nd Defendant as the second captain and the 4^th Defendant as the first officer.  VPCEE could only be operated by a combination of any two of the three pilots.  The 3^rd Defendant was on the other hand a flight attendant employed by the 1^st Defendant.

6.On 14 December 2016, the 2^nd Defendant published the following words contained in an email at 3:49 pm addressed to Mr Jan Ciechanowicz, the director of flight operations of the 1^st Defendant, and copied to the 1^st Defendant’s “Human Resources” and “FOP Management” (ie flight operations management)  as well as the 3^rd and 4^th Defendants (“D2 Email”):-

“Jean has also insulted all of us, lied to all of us, and gotten so drunk on many re-possition flights where he is an embarrassment to every one around him and Bella wings, He gets drunk and starts fights in Executive lounges to the point that the hotel management asked us for help to remove him. He has not wanted to follow simple Bombardier policies, and is very difficult to work with for all of us.

… as he has worn all of us out with his lies, lack of communication, selfishness, drinking to excess, inappropriate behaviour, wild mood swings and angry outburst to the point we no longer wish to work with him in any capacity.”

7.On 14 December 2016, the 3^rd Defendant published the following words contained in an email at 5:11 pm addressed to the 2^nd Defendant and copied to Mr Ciechanowicz, the 1^st Defendant’s “Human Resources” and “FOP Management” as well as the 4^th Defendant (“D3 Email”):-

“As David has mentioned, Jean indeed performs an unprofessional manner during our duties, and always throw a temper to crew members when hes moddy.

For e.g: We once positioned with Cathay Dragon flight in the morning, noticed there would be duty on the next day, but we never know since our schedule is so busy and apparently can always be rescheduled to the same day. Jean got REALLY drunk on the positioning flight and when we disembarked he spoke loudly to me while we were walking to the immigration. As we have different lines for Chinese and Non Chinese, he insisted to cut in my line(Chinese)  and ran straight to the immigration officer yelling at him. I reminded him that we were on duty and its not for fun but he just laughed and disregarded it. Afterwards, he held my hand and hugged and kissed me on the train to terminal and made me feel really really uncomfortable. John was there to witness too.

Jean always says “I don’t care” whether I seek his opinion as I respect him as our lead captain. And when he gets moody he will speak to us loudly with a negative attitude when we are on duty.”

8.On 15 December 2016, the 4^th Defendant published the following words contained in an email at 1:34 pm addressed to Mr Ciechanowicz and the 1^st Defendant’s “Human Resources” and “FOP Management”, and copied to the 2^nd and 3^rd Defendants, Ms Dara Lau (a flight attendant of the 1^st Defendant), Mr Glen Reghenzani (the 1^st Defendant’s vice president and director of flight operations)  and Mr Charles Hunt (the 1^st Defendant’s chief pilot)  (“D4 Email”):-

“May I also follow up on David and Ashley’s emails regarding the amounting problems we are experiencing with Jean Breton. I can fully testify to all their experiences. Most recent of which, was his abandonment of his duties. He once again tried to deflect attention to his faults by putting down Management and Crew members in reckless emails. He has continually stated he feels justified to defer his responsibilities. This is an attribute he has displayed on many occasions and shows he still does not wish to initiate any improvement in relationships with his crew members and with the company.

I’ve worked with Jean since September 2015 and I’ve tolerated a lot of his working practices, as a Captain and then Lead Captain … Jeans comments of ‘I couldn’t care less’ leave us dismayed. His communication is very poor, and the crew have been given very little guidance.

As we have all said he often gotten drunk in lounges and on positioning flights becoming very loud with embarrassing language and extremely derogatory comments often very personal and offensive. This has left me in a difficult situation where I do not wish to be in his company or have him accompany or have his accompany me to social or professional events with fellow aviators for fear of him again starting flights with other crews. He doesn’t respect his position as a representative of HKBellawings and has caused hotels to complain to us and ask for assistance in controlling him. I have had to baby sit him in public spaces during these drunken situations to stop him behaving inappropriately with the flight attendants, other crews and other public members.

He has also tried to coerce me on a number of occasions in to flying from the left seat without approval from the company, when I have politely declined he has clearly stated that we should do it anyway and not tell the company and he does not care.  Obviously this an is incredibly uncomfortable position to be put in with a PIC.  Equally on multiple items Bombardier and Company procedures have not been used, without good cause and primarily because he doesn’t want to.”

9.The D2 Email, D3 Email and D4 Email are the subject matters of this defamation claim.  It may be noted that all three emails contain typos or grammatical errors, and I have reproduced the words in their original form.

10.On 31 December 2016, the 1^st Defendant terminated the Plaintiff’s employment.  In the notice of termination, the 1^st Defendant stated the following:-

“It is with regret that we have to inform you that your employment with HK Bellawings.jet Limited will be terminated due to your absence of duty without a valid reason and unauthorized leave.

Your employment will end immediately without a notice period or payment in lieu of notice.”

11.The Plaintiff herein commenced proceedings in the Labour Tribunal against the 1^st Defendant herein seeking to recover, among others, wages in lieu of notice, and the 1^st Defendant herein contested the claim by maintaining that it was entitled to terminate the Plaintiff’s employment summarily.  The case was subsequently transferred to the District Court in DCCJ 3612/2017 and the trial was conducted before DDJ Jonathan Wong (as His Honour then was).  The following points may be noted from the judgment handed down on 22 January 2021 (see [2021] HKDC 46):-

(1)  The 1^st Defendant contended that there were four bases justifying the Plaintiff’s summary dismissal, ie the Plaintiff was absent from duty without valid reason, he wilfully disobeyed the 1^st Defendant’s lawful and reasonable order, he was dishonest about his whereabouts, and he misconducted himself in numerous occasions.

(2)  In relation to the fourth basis, the 1^st Defendant relied on the complaints made by the 2^nd to 4^th Defendants herein in respect of the Plaintiff’s behaviour as contained in the D2 Email, D3 Email and D4 Email.  The learned Deputy Judge observed that the 2^nd to 4^th Defendants’ complaints were couched in general terms, and there was no evidence whether the 1^st Defendant had carried out any investigation into those complaints.  He was not satisfied that the 1^st Defendant could justify the Plaintiff’s summary dismissal by reason of the fourth basis.

(3)  Nevertheless, the learned Deputy Judge held that the Plaintiff was absent from work from 8 to 13 December 2013 without good reason and the 1^st Defendant was justified in summarily dismissing the Plaintiff for the reasons stated in the notice of termination. The Plaintiff’s claim for payment in lieu of notice was therefore dismissed.

12.The 1^st Defendant brought an appeal against the aforesaid judgment in CACV 101/2022, but the appeal, which was dismissed by the Court of Appeal, was not related to the Plaintiff’s claim for wages in lieu of notice and is irrelevant to the present case.

Issues in Dispute

13.The 1^st and 4^th Defendants have admitted that the name “Jean” mentioned in the D2 Email, D3 Email and D4 Email was referrable to the Plaintiff.  There is thus no dispute that the words in the three emails referred and were understood by the recipients to refer to the Plaintiff.

14.The Plaintiff contends that the words in the three emails were defamatory of the Plaintiff, and that in their natural and ordinary meaning, the defamatory words meant and were understood to mean the following:-

(1)  In respect of the D2 Email, the words meant the Plaintiff has bad manners; he was a rude person and a liar; he was an emotional person who could not control his temper at work; he was selfish; he was drunken excessively whilst he was carrying out his duties as a corporate pilot, and he fought with others and had to be separated by others after drinking; he did not comply with professional code of conduct and/or policies; he failed to communicate and cooperate with other colleagues so that the staff were not willing to work with him; he was incompetent and irresponsible, and was acting in a wholly unprofessional manner unbefitting of pilots.

(2)  In respect of the D3 Email, in addition to the meanings set out in sub-paragraph (1)  above, the words meant the Plaintiff was irresponsible and lacked rationality; he lost his temper with other colleagues whilst he was on duty; he as the lead captain did not answer the 3^rd Defendant’s enquiries in a conscientious manner; he was impolite to the 3^rd Defendant and an immigration officer because of drunkenness; he sexually harassed the 3^rd Defendant by holding her hand, hugging her and kissing her.

(3)  In respect of the D4 Email, in addition to the meanings set out in sub-paragraphs (1)  and (2)  above, the words meant (a)  the Plaintiff has poor communication skill; (b)  he abandoned his duties as a corporate pilot of the 1^st Defendant; (c)  he delegated his own job duties to other colleagues without justification; (d)  he failed to give sufficient guidance to his subordinates and colleagues; (e)  he was a dictatorial and insecure individual; (f)  he failed to admit his faults and attempted to shift the blame to other colleagues; (g)  he disrespected and belittled the 4^th Defendant on many instances; (h)  he failed to take into account the 4^th Defendant’s proposed improvements to the 1^st Defendant’s procedures, and his careless and irresponsible attitude caused the 4^th Defendant to feel resentful; (i)  he failed to maintain a harmonious work relationship with his colleagues and the 1^st Defendant; (j)  he lacked manners and while on duty he shouted loudly at others and used embarrassing and offensive language because of drunkenness; (k)  he caused the 4^th Defendant to fear that he would start fights with colleagues in social and professional events; (l)  he did not respect his position as a lead captain and a representative of the 1^st Defendant; (m)  he caused hotels to complain about behaviour; (n)  he required extensive care from the 4^th Defendant while he was drunk; (o)  he forced the 4^th Defendant to fly the planes in many occasions in the absence of the 1^st Defendant’s approval; (p)  he failed to follow the 1^st Defendant’s procedures and the procedures for flying bombardiers.

15.It is not the Plaintiff’s pleaded case that the 1^st Defendant published the three emails. Nevertheless, the Plaintiff contends that as the 2^nd to 4^th Defendants’ employer, the 1^st Defendant is vicariously liable for the publication of the defamatory emails by the 2^nd to 4^th Defendants who were acting in the course of their employment.

16.In their Amended Defence, the 1^st and 4^th Defendants deny that the words contained in the three emails were defamatory and any defamatory meaning does not satisfy the threshold of seriousness.  They also argue that the content of the three emails was true in substance and the three emails were published on an occasion of qualified privilege.  The 1^st Defendant denies vicarious liability.

17.The 1^st and 4^th Defendants rely on the defence of justification and they do not admit the meanings of the D2 Email and D3 Email as suggested by the Plaintiff.  However, they have not pleaded the “Lucas-Box” meaning of the two emails (ie the real meaning on their case which they seek to justify), which is a mandatory pleading requirement: see Mak Shiu Tong v Yue Kwok Ying [2004] 7 HKCFAR 228 at §22.  For the D4 Email, they admitted that the words therein bore or were capable of bearing the meanings set out in §§14(3)(b), (c), (d), (f), (l)  and (p)  above.  They also seek to justify the following “Lucas-Box” meanings of the D4 Email:-

(1)  The Plaintiff communicated poorly with his colleagues during his employment with the 1^st Defendant.

(2)  The Plaintiff often got drunk in airport lounges, when travelling on positioning flights, and when staying in a hotel during layover, and he would speak in derogatory, embarrassing, and/or offensive terms on those occasions.  This caused hotels to complain to the 4^th Defendant and/or other crew members of the 1^st Defendant.

(3)  On some occasions, the 4^th Defendant had to look after the Plaintiff and stop him from behaving inappropriately in public spaces.

(4)  The 4^th Defendant was reluctant to attend social or professional events involving other fellow aviators in the company of the Plaintiff, for fear of the Plaintiff starting fights with other people after getting drunk.

(5)  On a number of occasions, the Plaintiff requested the 4^th Defendant to operate a flight from the left-hand side seat without first seeking prior approval from the 1^st Defendant as required.  When the 4^th Defendant declined the Plaintiff’s requests, the Plaintiff would respond by saying that they should do it anyway and they do not need to tell the 1^st Defendant, and that he does not care about the policy of the 1^st Defendant regarding operating a flight from the left-hand side seat.

18.In view of the stance taken by the parties, and having considered the parties’ agreed statement of issue in dispute (the statement was agreed when the 1^st and 4^th Defendants were still legally represented), I consider that there are the following issues to be determined:-

(1)  Whether the D2 Email, D3 Email and D4 Email or any part thereof was defamatory of the Plaintiff, and if so, whether any such defamatory meaning satisfies the threshold of seriousness?

(2)  Whether the contents of the D2 Email, D3 Email and D4 Email were true in substance and/or in fact?

(3)  Whether the D2 Email, D3 Email and D4 Email were published on an occasion of qualified privilege and protected by qualified privilege?

(4)  Whether the 1^st Defendant is vicariously liable for the publication of the D2 Email, D3 Email and D4 Email?

(5)  What reliefs, if any, should be awarded to the Plaintiff?

19.During the trial, I indicated to Ms Cyndi Ho, Counsel for the Plaintiff, that I had various concerns about the Plaintiff’s case, namely whether the 1^st Defendant could be held vicariously liable for the views expressed to it by its employees, whether in light of the pleadings and evidence the defence of qualified privilege could be defeated by malice, whether by seeking the proposed damages against the 1^st Defendant the Plaintiff was effectively relitigating the summary dismissal issue, and whether the court had jurisdiction to compel the Defendants to issue a written apology as requested by the Plaintiff.  In her closing submissions, which are fair and comprehensive, Ms Ho has attempted to address those concerns, and I have duly taken her submissions into account in my judgment.

Issue (1)  – Defamatory Meaning and Seriousness

20.The following principles regarding actionable defamation are well established (see Gatley on Libel and Slander (13^th Ed)  at §§2-001 and 2-031):-

(1)  Not every untrue statement about another person gives rise to a claim.  An untrue imputation is only actionable if it is defamatory - it must be to the plaintiff’s discredit, tends to lower him in the estimation of others, causes him to be shunned or avoided, or exposes him to hatred, contempt or ridicule.

(2)  There must be a qualification or threshold of seriousness so as to exclude trivial claims.  Any imputation which may tend to injure a person’s reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory provided that such imputation meets the necessary threshold of seriousness.

(3)  To be actionable, words must impute to the plaintiff some quality which would be detrimental, or the absence of some quality which is essential, to the successful carrying on of his office, profession or trade.  The mere fact that words tend to injure the plaintiff in the way of his office, profession or trade is insufficient.  If they do not involve any reflection upon the personal character, or the official, professional or trading reputation of the plaintiff, they are not defamatory.

21.In Independent Commentators Association Limited v Joint Publishing (HK)  Co Ltd HCA 1438/2015 (unrep, 29 March 2021)  at §§21-22, DHCJ Richard Khaw SC (as the learned Recorder then was)  summarised the principles for determining the meaning of allegedly defamatory words in the following manner:-

“21. Regarding the nature of the inquiry:-

(1)  The single meaning rule applies. This means the words complained of are deemed to bear only one natural and ordinary meaning, which is the meaning that the words would convey to the reasonable reader;

(2)  In determining meaning, words in a publication are normally construed according to their natural and ordinary meaning. This does not involve a technical process of construction or analysis. The relevant inquiry is what meaning the words would convey to the mind of an ordinary, reasonable, fair-minded reader;

(3)  Regarding the question of how the meaning conveyed by the words to the mind of an ordinary, reasonable, fair-minded reader is determined, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 provides the following guidance at §14:-

(a)  The governing principle is reasonableness.

(b)  The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as a man who is not avid for scandal, and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(c)  Over-elaborate analysis is best avoided.

(d)  The intention of the publisher is irrelevant.

(4)  Further, in some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.

22. Regarding the scope of the relevant inquiry:-

(1)  The article must be read as a whole. A reasonable reader is assumed to have read the whole article complained of.

(2)  The context and circumstances of the publication must be taken into account.

(3)  In reading a publication in its entire context, the court will also bear in mind the general tenor of the entire publication. The fact that the publication gives a generally uncomplimentary rendering of the plaintiff will obviously affect a reasonable reader’s understanding of the specific portions or statements in the publication.”

22.As noted above, for the words of the D2 Email and D3 Email, the 1^st and 4^th Defendants have not proposed any “Lucas-Box” meanings which they seek to justify. Applying the aforesaid principles on determining the meaning of defamatory words, I accept that the words of the D2 Email and D3 Email bore the meanings or were understood to bear the meanings as suggested by the Plaintiff and set out in §§14(1)  and 13(2)  above.

23.The 4^th Defendant admitted that the words of the D3 Email bore or were capable of bearing the meanings, among others, that the Plaintiff abandoned his duties as a corporate pilot, he delegated his own job duties to others without justification, he failed to give sufficient guidance to his subordinates, and he failed to follow the 1^st Defendant’s procedures and the procedures for flying bombardiers.

24.Further, on the 4^th Defendant’s own case, the words in the D4 Email meant, among others, that the Plaintiff often got drunk in airport lounges and when travelling on positioning flights, and that the Plaintiff requested the 4^th Defendant to operate a flight from the left-hand side seat without first seeking requisite approval from the 1^st Defendant.

25.Based on the aforesaid meanings of the words in the D2 Email and D3 Email and the undisputed meanings of the words in the D4 Email, I find that they are defamatory and they pass the threshold of seriousness.  They tend to injure the Plaintiff’s reputation as a corporate pilot in his employment, as readers of the words would have the perception that the Plaintiff did not discharge his job duties and did not follow his company’s guidelines and procedures, and he would often get drunk at work and cause embarrassment to his colleagues.

Issue (2)  – Justification

26.To pull off the defence of justification, a defendant must prove the substantial truth of his statement. He can rely on justification only if he proves that the main charge or gist of the libel is true.  It is an objective requirement.  The standard of proof is on the balance of probabilities, and the evidence which is required to satisfy it may vary according to the circumstances: Gatley on Libel and Slander at §§12-006 – 12-007.

27.In the Amended Defence, while the 1^st Defendant pleaded justification as a defence in respect of the D2 Email and D3 Email, it has not given any particulars, falling foul of the pleading requirement under Order 82 rule 3(2)  of the Rules of the District Court (Cap 336H), which stipulates that:-

“(2)  Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.”

28.On the other hand, the 1^st and 4^th Defendants pleaded among others the following particulars in supporting their defence of justification in relation to the D4 Email:-

(1)  On 22 October 2016, despite various attempts made by the flight operation support team of the 1^st Defendant to contact the Plaintiff for a flight duty, the Plaintiff was not contactable.  The Plaintiff tried to deflect his own responsibilities by suggesting that the incident occurred because the policy of the 1^st Defendant regarding day-off was unclear.

(2)  Between 8 and 13 December 2016, the Plaintiff failed to answer the calls made by the staff of the 1^st Defendant regarding work-related matters, went on unauthorised leaves and failed to attend a work meeting, with the result that other employees of the 1^st Defendant had to cover for the Plaintiff’s duties.  The Plaintiff refused to admit his faults and resorted to blaming the 1^st Defendant for treating him unfairly.

(3)  On 23 November 2015, the 4^th Defendant was assigned to fly with the Plaintiff.  While the aircraft (ie VPCCE)  under the control of the Plaintiff and the 4^th Defendant was taxiing out on the runway, they were expressly instructed by the air traffic controller to stop at a specific holding point.  However, on approaching the holding point, the Plaintiff (who was the pilot in command)  showed no sign of stopping the aircraft and caused it to taxi beyond the holding point in complete disregard of the express instruction of the air traffic controller.

(4)  On 8 April 2016, the Plaintiff and the 4^th Defendant were assigned to operate a test flight between the Narita airport and the Haneda airport in Japan.  Towards the end of the flight, instead of showing proper command of the airplane and communicating properly with the 4^th Defendant on how the airplane would be operated, the Plaintiff unilaterally and improperly started an approach to landing at an attitude which was below the minimum height to descend, causing the air traffic controller to intervene.

(5)  Contrary to recognised practice, the Plaintiff, without ever providing any proper justification, insisted on the 2^nd and 4^th Defendants using the Plaintiff’s own aircraft operating checklist (as opposed to the checklist provided and recommended by the manufacturers of VPCCE and/or the 1^st Defendant)  when operating VPCCE.

(6)  On numerous occasions, including when the Plaintiff was in airport lounges, when the Plaintiff was travelling on positioning flights and on a number of times when the Plaintiff, the 4^th Defendant and other crew members of the 1^st Defendant were arranged to stay at hotels, the Plaintiff failed to exercise the necessary degree of self-constraint in his consumption of alcohol, and after causing himself to be drunk, started to speak loudly and aggressively to his colleagues and other members of the public.

(7)  On at least two occasions, contrary to the operations manual promulgated by the 1^st Defendant and the general flying policy imposed by the 1^st Defendant, the Plaintiff tried to coerce the 4^th Defendant into flying from the left-hand seat, thereby putting the 4^th Defendant in an uncomfortable position.

29.While the 4^th Defendant has filed a witness statement covering the above matters, he did not attend the trial and did not testify, and I would disregard his witness statement.  On the other hand, the Plaintiff has at the trial adopted his witness statement, where he refuted the allegations made by the 4^th Defendant against him.

30.In the circumstances, I hold that the 1^st Defendant has not pleaded the requisite particulars for it to be able to raise the defence of justification in respect of the D2 Email and D3 Email, and the 4^th Defendant (insofar as it is necessary, also the 1^st Defendant)  has failed to discharge his burden in proving the substantial truth of his words in the D4 Email, and the defence of justification has to be dismissed accordingly.

Issue (3)  – Qualified Privilege

31.The principles relating to the defence of qualified privilege have been authoritatively set out by Lord Reed NPJ in Jonathan Lu v Paul Chan Mo Po [2018] 21 HKCFAR 94 at §§13-14.  In gist:-

(1)  Privilege is a defence to an action in defamation.  In its application to defamatory statements of fact, it attaches to occasions when the law recognises a need for frank and uninhibited communication which outweighs the need to protect reputation.

(2)  Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege: that is to say, the defence to an action in defamation admits of no exceptions or qualifications.  More usually, the privilege is qualified, in that it can be defeated if the plaintiff proves that the defendant was actuated by malice.

(3)  Many common situations are privileged.  There is no closed list of categories.  The underlying principle is that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.

(4)  Occasions of this kind have traditionally been described in terms of persons having a duty to perform or an interest to protect in making the communication in question.  In determining whether, applying that principle, an occasion is privileged, the court has regard to all the circumstances.  The circumstances must be viewed with today’s eyes – the circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions.

32.Qualified privilege can be defeated my malice, and Lord Reed NPJ has in Jonathan Lu v Paul Chan Mo Po at §§15-30 analysed the concept of malice in detail.  The analysis can be summarised as follows:-

(1)  The meaning of malice in the context of qualified privilege is straightforward.  It is to be equated with use of a privileged occasion for some purpose other than that for which the privilege is accorded by the law.

(2)  In order to decide whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is therefore necessary to decide two questions, which arise sequentially.  First, was the occasion privileged, and if so, for what purpose?  Secondly, was that the defendant’s purpose when he published the communication in question?  The first of these is a question of law for the judge.  The second is a question of fact, to be determined by the jury, where the action is tried with a jury.

(3)  The motive with which the defendant made the communication in question is therefore of crucial importance.  A person may have more than one reason, motive, or purpose for making a communication.  The critical question is whether the dominant purpose for which he made the communication was one other than the purpose for which the occasion was privileged.  In practice, the plaintiff generally sets out to prove that a desire to injure him was the defendant’s dominant motive.

(4)  Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it.  Accordingly, in a case where a person has published what he believes to be true, it is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives that express malice can properly be found.

(5)  The motive with which a person published defamatory matter can only be inferred from what he did or said or knew.  The jury therefore have to consider all the evidence from which such an inference might be drawn, and decide what inference as to the defendant’s dominant purpose should properly be drawn from it.  Such evidence will include, crucially, the circumstances surrounding the making of the relevant communication.

(6)  Issues concerning the defendant’s state of mind in relation to the truth or falsity of what is communicated have sometimes caused particular difficulty in practice.  In relation to such issues, it is important in the first place to understand that evidence bearing on the defendant’s knowledge or belief as to the truth or falsity of what is communicated is only relevant in so far as it affects the answer to the critical question which it has to decide, namely whether the defendant used the occasion for a purpose other than that for which the privilege was accorded.

(7)  It is also necessary to understand that a particular conclusion on malice does not automatically follow in every case from the jury’s view of the defendant’s knowledge or belief as to the truth or falsity of what is communicated.  Even a defendant who knows or believes that the matter communicated is false will nevertheless be protected by privilege in circumstances where the purpose for which the privilege exists is consistent with the communication of a matter which is known or believed to be false, and the matter is communicated for that purpose.

(8)  The critical question for the jury is always whether the dominant purpose for which the communication was made was the same as the purpose for which the privilege was accorded.  The defendant’s knowledge or belief as to the truth or falsity of the matter communicated is significant only in so far as it is evidence from which an inference can be drawn as to the answer to that question.

(9)  Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, as is usually but not invariably the case, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose: normally, that is the only inference which can reasonably be drawn.  “Recklessness”, in this context, is to be understood to mean “without considering or caring whether it be true or not”.

(10)  In cases where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, the parties may therefore focus on the question whether the defendant knew of the matter’s falsity, or did not care whether it was true or false.  It should however be borne in mind that knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred.

(11)  Indifference to the truth of what the defendant publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.  Even those who act carelessly, impulsively or irrationally are afforded immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest.  Apart from cases where the purpose of the privilege is consistent with the reporting of allegations which are not believed to be true, what is required on the part of the defamer is positive belief in the truth of what he published.

(12)  In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value.  In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach.  But despite the imperfection of the mental process by which the belief is arrived at it may still be honest, that is, a positive belief that the conclusions they have reached are true.  The law demands no more.

(13)  Prejudice, however gross and unreasoning it may be, does not destroy the privilege unless it has had the result of rendering the defendant indifferent to the truth or falsity of what was stated.  If what it does is to cause the defendant honestly to believe what a more rational or impartial person would reject or doubt he does not thereby lose the protection of the privilege.

(14)  Judges and juries should be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.  This burden of affirmative proof is not one that is lightly satisfied.

(15)  Where the communication includes defamatory material going beyond what was necessary for the purpose for which the privilege was accorded, that material should not be treated as ipso facto falling outside the scope of the protection.  Rather, the question remains whether the defendant misused the privileged occasion for an improper purpose.

33.Further, Lord Nicholls of Birkenhead NPJ has in Cheng v Tse Wai Chun [2000] 3 HKCFAR 339 at 354I-357C clarified that malice does not bear the same meaning for the defences of fair comment and qualified privilege, although malice is to be equated with not using either defence for a purpose for which it exists and the purpose for which the two defences exist is not the same.  The rationale of qualified privilege is that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source.  If a person’s dominant motive was not to perform this duty or protect this interest, he is outside the ambit of that defence.  The rationale of fair comment, on the other hand, is not based on any notion of performance of a duty or protection of an interest.

34.It is also important to bear in mind Kwan VP’s reminder in Leung Chi Ching Candy v Yeung Hon Sing [2021] 5 HKLRD 684 at §§68-73 that the court would need to apply a subjective test dependent on the defendant’s state of mind and intention at the time the communications were made in order to find malice that would defeat qualified privilege.

35.To sum up, the misuse of the occasion of qualified privilege can be shown in three ways: (1)  by proof that the publisher did not believe that what they said was true; (2)  by proof that in making the publication the publisher was reckless as to the truth of what they wrote or said; or (3)  by proof that the publisher’s dominant motive in making the publication was an improper one, for example, to injure the plaintiff or to obtain some advantage or to further some interest which is unconnected with the duty or interest that gives rise to the privilege: see Duncan and Neill on Defamation and Other Media and Communications Claims (5^th Ed)  at §19.04.

36.In the present case, the 1^st and 4^th Defendants pleaded that the D2 Email, D3 Email and D4 Email were published on an occasion of qualified privilege.  In December 2016, the 2^nd to 4^th Defendants were asked by the 1^st Defendant to express their opinion in writing on the working performance of the Plaintiff and their working relationship with the Plaintiff.  The 2^nd to 4^th Defendants sent the three emails in such circumstances and the recipients were persons who were and who would be interested in and concerned with the discussions.  It is therefore contended that the 2^nd to 4^th Defendants and the recipients had a common or corresponding interest in the subject matter of the words, that the 2^nd to 4^th Defendants had a duty to send the three emails and the recipients had a corresponding interest or duty to receive them, and that they were published no more widely than was required for the effective making of the relevant communication.

37.In the Reply, the Plaintiff does not admit that the 4^th Defendant was asked by his superiors to comment on the working performance of the Plaintiff (but somehow no plea was made as to whether the 2^nd and 3^rd Defendants were so asked by the 1^st Defendant).  It is the Plaintiff’s evidence that as far as he was aware, it was not the general practice of the 1^st Defendant to formally evaluate employees’ work performance or prepare appraisals.  As the 1^st and 4^th Defendants did not show up at the trial, the Plaintiff’s evidence is unchallenged and the 4^th Defendant’s plea is not supported by evidence.

38.There is, however, some ambiguity as to whether the Plaintiff indeed maintained that the 2^nd to 4^th Defendants were not sending the three emails in response to the 1^st Defendant’s request.  For instance, when arguing that the 1^st Defendant should be held vicariously liable, the Plaintiff’s evidence is that the 2^nd Defendant sent the D2 Email in the course of his employment as it was sent in response to the 1^st Defendant’s enquiry regarding his opinion on the Plaintiff’s working performance.  Indeed, in the opening submissions, the Plaintiff relied on the plea of the 1^st and 4^th Defendants (ie the 1^st Defendant asked the 4^th Defendant to send the email)  to contend that the 1^st Defendant should be vicariously liable.  Be that as it may, Ms Ho confirmed in closing submissions that the Plaintiff’s case had always been that there was no evidence that the 1^st Defendant sought the 2^nd to 4^th Defendants’ views on the Plaintiff.

39.So on the available evidence, the 2^nd to 4^th Defendants apparently sent the three emails out of their own volition.  Even so, I would still find that the publication of the three emails constituted an occasion of qualified privilege.  After all, in the three emails, the 2^nd to 4^th Defendants were making known to their superiors and colleagues their views on the working performance of the Plaintiff, who was the lead captain in VPCEE.  Considering their relationship and the job nature of pilots, there obviously existed a reciprocity of duty and interest.

40.In this connection, the mere fact that a communication as to an employee’s character is made voluntarily and not in answer to any inquiry will not necessarily render it unprivileged.  On the other hand, employees in a business, or employer and employee, have common interests in the success of the business, or the way in which it is carried on: see Gatley on Libel and Slander at §§15-032 and 15-045.  Indeed, examples abound where an employee making a complaint against his colleague to the employer was considered constituting an occasion of qualified privilege: see Keith Singh v Joseph Weayou [2017] EWHC 2102 (QB)  at §101; Kostakopolou v University of Warwick [2021] EWHC 3454 (QB)  at §83.

41.I have not lost sight of the Plaintiff’s argument that the three emails were excessively published and such publication was wider than the occasion required (this contention was not pleaded in the Reply in response to the 1^st and 4^th Defendants’ allegation of qualified privilege).  The three emails were addressed not only to the personnel responsible for assessing the work performance of pilots (namely Mr Ciechanowicz, Mr Reghenzani and Mr Hunt), but also to the 1^st Defendant’s “Human Resources” and “FOP Management”.  The 2^nd to 4^th Defendants copied their respective email to one another, and the 4^th Defendant also copied his email to Ms Dara Lau, a flight attendant.

42.It is well established that to invoke the defence of qualified privilege, the publication must be proportionate to the necessity of the occasion and does not go wider than is required for the effective making of the communication in the ordinary course of business: Pang Siu Wing v Chungshan Commercial Association Hong Kong [2024] 1 HKLRD 1031 at §73.

43.The Plaintiff has not given evidence on who from the “Human Resources” and “FOP Management” received the email, but there is no suggestion that those recipients are outside of the 1^st Defendant.  As to the 2^nd to 4^th Defendants and Ms Lau, they were colleagues with the Plaintiff and with one another, and there surely existed a reciprocity of duty and interest among them regarding communications about the working performance of the Plaintiff, a lead pilot.  As noted above, employees in a business have common interests in the success of the business or the way in which it is carried on.  I do not consider that the publication of the three emails to a restricted number of colleagues would render the publication unreasonable or disproportionate such that their publication would fall outside the occasion of qualified privilege.

44.The crucial question is therefore whether the qualified privilege is defeated by the malice of the 2^nd to 4^th Defendants.  In this regard, it is noteworthy that the 1^st and 4^th Defendants introduced the defence of qualified privilege in relation to the D2 Email and D3 Email for the first time in the Amended Defence, and the Plaintiff has not amended his Reply to make any plea in response.  As to the D4 Email, the defence of qualified privilege was pleaded in the original Defence, and the Plaintiff’s relevant in plea in his Reply is reproduced below in full:-

“8. Paragraphs 21-22 are not admitted, and Bellawings and Mr Macrae are put to strict proof thereof.

(1)  Paragraph 21: It is denied that the words complained of in the 2016.12.15 JM Email were published on an occasion of qualified privilege. As to the particulars of qualified privilege:-

(i)  Bellawings and Mr Macrae were put to strict proof in respect of the latter was asked by Mr Ciechanowicz and Mr Reghenzani to express his opinion in writing on the work performance of Mr Breton and his work relationship with Mr Breton.

(ii)  It is categorically denied that the words complained of as set out in the 2016.12.15 JM Email were honest opinion as alleged in paragraph 21(2)  of the Defence or at all.

(iii)  The words set out in the 2016.12.15 JM Email did not convey the opinion set out therein and are not capable of conveying that opinion.

(iv)  Further, it is denied that any opinion conveyed by the 2016.12.15 JM Email was based upon the facts alleged in the particulars under paragraph 18 of the Defence. Without limiting the generality of that denial, Mr Breton repeats paragraphs 2-6 hereinabove.

(v)  Further, the allegations relied on in support of the opinion are false and unfounded in the respects set out in paragraphs 2-6 hereinabove and the true facts do not support, and are incapable of supporting, the alleged opinion.

(vi)  In the circumstances, it is denied that the words complained of in the 2016.12.15 JM Email are protected by qualified privilege.”

45.The Plaintiff has not expressly used the word “malice” in his Reply, but that in itself should not be fatal. After all, Lord Nicholls of Birkenhead NPJ has observed in Cheng v Tse Wai Chun at 361B-C that to avoid any risk of jury confusion caused by the term “malice” bearing different meanings, it should be omitted altogether in a judge’s directions to the jury.  Nevertheless, looking at the Plaintiff’s pleadings as a whole, I cannot discern any plea to the effect that the 4^th Defendant used the occasion for a purpose other than that for which the privilege was accorded.  The focus of the Plaintiff’s plea is that the allegations of the 4^th Defendant are false objectively.  There is no plea that the 4^th Defendant did not subjectively believe that what he wrote was true or that he was indifferent to its truth or falsity.  There is no plea that the 4^th Defendant’s dominant purpose of sending the D4 Email was not to express his views on the working performance of the Plaintiff or that his predominant purpose was to injure the Plaintiff.

46.It is true that in the Amended Statement of Claim, there is a general plea that the 2^nd to 4^th Defendants published the three emails “knowing they were false or recklessly, not caring whether they were true or false”, but that plea was made in support of the Plaintiff’s claim for damages including aggravated damages, and in any event no particular has been given.

47.Order 82 rule 3(3)  of the Rules of the District Court (Cap 336H)  stipulates the requirement for giving particulars of malice:-

“(3)  Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.”

48.As to what constitutes sufficient particulars for pleading malice, one may have regard to the following principles (see Pena v Tameside Hospital NHS Foundation Trust [2011] EWHC 3027 (QB)  at §§32-34):-

(1)  It is appropriate to regard an allegation of malice as tantamount to one of dishonesty.  At the pleading stage, it is necessary to identify and set out particulars of malice that are more consistent with the presence of malice (ie lack of honest belief or recklessness)  than with its absence.  Malice connotes a state of mind.  Where malice is pleaded therefore it is necessary to give particulars of the facts or matters relied upon.

(2)  An allegation of malice is tantamount to an accusation of dishonesty and should not be lightly made.  The court is often called upon to strike out pleas of malice which are vague or speculative.  The plaintiff must set out a case which raises a probability (rather than a mere possibility)  of malice.

(3)  For a plaintiff to demonstrate that the person alleged to have been malicious abused the occasion of privilege, for some purpose other than that for which public policy accords the defence, mere assertion will not do.  A plaintiff may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross-examination.

49.Having considered the principles and the pleadings, I am not satisfied that the Plaintiff has pleaded or sufficiently pleaded malice that can defeat the defence of qualified privilege, especially in relation to the D2 Email and D3 Email where the Plaintiff has not amended his Reply to counter the contention that they were published on an occasion of qualified privilege.

50.Even putting aside the pleading point, I am of the view that the Plaintiff’s evidence is not sufficient for him to prove that the 2^nd to 4^th Defendants published the three emails maliciously, even though the Plaintiff’s evidence went unchallenged.

51.In his witness statement, the Plaintiff has given evidence on the acrimonious relationship between him and the 2^nd Defendant.  He said that he and the 2^nd Defendant have lived on bad terms and previously had some quarrels.  Specifically, the 2^nd Defendant had challenged him on various operational issues on VPCEE during which the 2^nd Defendant displayed very little emotional intelligence, which led the Plaintiff to make a complaint to Mr Reghenzani and Mr Hunt.  He therefore said that when the 1^st Defendant asked the 2^nd Defendant to express his opinions on him, the 2^nd Defendant took the opportunity to fabricate entirely false allegations against him.  However, the Plaintiff’s complaint against the 2^nd Defendant was made in February 2016, and there is no evidence that the 2^nd Defendant was even aware of the complaint.  It is far-fetching to speculate that the 2^nd Defendant was motivated by this incident, which he may not even know, to injure the Plaintiff by publishing the D2 Email 10 months later in December 2016.

52.As to the 3^rd Defendant, the Plaintiff could merely say that she was the girlfriend of the 2^nd Defendant; it would take a quantum leap for one to come to the Plaintiff’s conclusion that the 3^rd Defendant also published the D3 Email with a dominant improper motive of harming him.  The limited evidence is far from sufficient for the Plaintiff to prove the serious allegation that the publication of the D3 Email was actuated by malice.

53.By contrast, the Plaintiff has not given any evidence about his relationship with the 4^th Defendant that would motivate the 4^th Defendant to injure him by publishing the D4 Email.  As a matter of fact, the Plaintiff has not suggested in his evidence that the 4^th Defendant fabricated any allegation or that the 4^th Defendant intended to harm him by publishing the D4 Email.  Indeed, in her closing submissions, Ms Ho fairly pointed out that there was no direct evidence that the 4^th Defendant published the D4 Email maliciously. The most she could say about the D4 Email was that the 4^th Defendant could not prove the allegations therein.  However, to prove malice, the fact that the allegations are objectively false is not enough; what is required of the Plaintiff is proof that the 4^th Defendant did not believe that what he said was true or that he was reckless as to the truth of what he wrote. There is no such evidence, and this lack of evidence leads me to believe that instead of having omitted to plead or sufficiently plead malice, it was indeed proper for the pleader not to plead malice on the 4^th Defendant’s part.

54.All in all, I find that the D2 Email, D3 Email and D4 Email were published in an occasion of qualified privilege, and the Plaintiff has not been able to prove malice on the 2^nd to 4^th Defendants’ part to defeat such privilege.

Issue (4)  – Vicarious Liability

55.Given my ruling on qualified privilege, it is not necessary for me to determine if the 1^st Defendant would be vicariously liable for the acts of the 2^nd to 4^th Defendants.  That said, for the sake of completeness and with respect to the thorough research done by Ms Ho, I shall set out my views on the 1^st Defendant’s vicarious liability.

56.Ms Ho has helpfully referred to me two cases of the United Kingdom Supreme Court, Armes v Nottinghamshire County Council [2018] AC 355 and Mohamud v Wm Morrison Supermarkets plc [2016] AC 677, where the general principles on vicarious liability are set out.  Those principles can be summarized as follows:-

(1)  The scope of vicarious liability depends upon the answers to two questions.  First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual?  Secondly, in what manner does the conduct of that individual have to be related to that relationship in order for vicarious liability to be imposed?  In the context of an employment relationship, the first question can be framed as what functions or field of activities have been entrusted by the employer to the employee, or, in everyday language, what is the nature of his job.  This question must be addressed broadly.  The second question can be phrased as whether there is sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.

(2)  Five incidents of the relationship between employer and employee had been identified as usually making it fair, just and reasonable to impose vicarious liability, and which could properly give rise to vicarious liability where other relationships had the same incidents and could therefore be treated as akin to employment.  They were: (a)  the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (b)  the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (c)  the employee’s activity is likely to be part of the business activity of the employer; (d)  the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; and (e)  the employee will, to a greater or lesser degree, have been under the control of the employer.

(3)  The weight to be attached to these various factors would vary according to the context.  The first factor is unlikely to be of independent significance in most cases, and the fifth factor no longer has the significance that it was sometimes considered to have in the past.  The three remaining factors are inter-related, and reflect the principal justifications for the imposition of vicarious liability.  The resultant position is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.

57.In the context of defamation, an employer will be vicariously liable for a defamatory publication of their employee where the employee was acting within the scope of their employment when they made the publication.  This is a mixed question of fact and law and will depend on whether the wrongful conduct was so closely connected with acts that the employee was authorised to do that it could be fairly and properly regarded as having done by them while acting in the ordinary course of their employment: Duncan and Neill on Defamation and Other Media and Communications Claims at §10.19.

58.More directly on workplace defamation, the learned authors of Gatley on Libel and Slander, having referred to Riddick v Thames Board Mills [1977] QB 881 and Lord Denning MR’s dissenting judgment therein, stated at §9-030 that vicarious liability would extend to making an employer liable for words published by one employee to another, and the defence of common employment is not available even where the plaintiff is another employee.

59.Ms Ho argues that the activity of the 2^nd to 4^th Defendants was likely to be part of the 1^st Defendant’s business activity.  Given that they were members of the cabin crew, there was sufficient connection between the position they were employed and their wrongful conduct to make it right for the 1^st Defendant as an employer to be held liable.  By employing the 2^nd to 4^th Defendants to carry on the activity of sending the three emails, the 1^st Defendant would have created the risk of the tort committed by them.  Ms Ho has drawn my attention to two recent English cases of Parris v Ajayi [2021] EWHC 285 (QB)  and Camcho v OCS Group UK Ltd [2024] ICR 1019; in both cases the employer conceded that it could be vicariously liable for a complaint made by an employee against a fellow worker.

60.I am of the view that the 1^st Defendant is not vicariously liable for the 2^nd to 4^th Defendants’ publication of the three emails.  I consider that the mere fact that the 2^nd to 4^th Defendants complained about the working performance of the Plaintiff does not in itself make the complaint a business activity of the 1^st Defendant.  The touchstone, rather, is whether the publication of the three emails is so closely connected with acts that the 2^nd to 4^th Defendants were authorised to do that it could be fairly and properly regarded as having done by them while acting in the ordinary course of their employment with the 1^st Defendant.

61.In this regard, the learned authors Gatley on Libel and Slander have the following to say at §9-033 as to the circumstances under which an employer may be vicariously liable for the malicious publication of their employees, where it is seemingly suggested that if the employer did not authorize or direct the employee to publish the defamatory material, the employer should not be liable even if the publication was malicious:-

“… It seems, however, that where an employee has “nothing whatever to do with the composition of the libel or the approval of its contents”, but “in obedience to the command of his principal merely does the mechanical act of distributing it when handed to him complete”, malice on his part is irrelevant, and will not destroy any privilege the employer may have in respect of the publication.  In the contrary case, where the employee innocently publishes defamatory material on a privileged occasion he will escape liability for he is not guilt of malice; but if the employee is guilty of malice the employer will be liable, provided that he authorised or directed the publication.  However if he does not so authorise or direct, then he will not, it seems, become liable merely because he was aware of the facts which showed that the statement was untrue, for it is not possible to add the guilty mind of A to the act of B.  Similarly, where one employee publishes the material innocently, the employer is not liable merely because another employee had a malicious mind: “a company’s mind is not to be assessed on the totality of knowledge of its servants”.” (emphasis added)

62.In response to this court’s question, Ms Ho fairly accepted that Parris v Ajayi and Camcho v OCS Group UK Ltd do not stand for any sweeping proposition that an employer would invariably be vicariously liable for the malicious publication of its employee against a co-worker, and that each case would depend on its own facts.  The facts of those two English cases are indeed very different from the present case.  Both cases are concerned with publications in the context of grievance procedures, which employers in England are required by law to set out as a formal process allowing employees to raise concerns or complaints.  In those circumstances, it could well be the case that the grievance procedures are considered part of the business activity of the employer, or that the employer authorised the publication of the grievance, such that the employer may be vicariously liable for words published by an employee in such procedures.

63.It is illustrative to see how the question of vicarious liability was analysed in Pena v Tameside Hospital NHS Foundation Trust, an English defamation case where the facts bear some similarities to the present case.  The facts of that case can be briefly stated as follows:-

(1)  The claimant was a consultant orthopaedic surgeon employed by the Tameside Hospital NHS Foundation Trust, the first defendant.  The second defendant was employed by the Trust as a consultant in obstetrics and gynaecology.  The claimant sought damages for libel in respect of two emails sent by the second defendant, and he contended that the Trust was vicariously liable as the emails were published in the course of the second defendant’s employment.

(2)  The claimant had served as a chairman of the hospital’s staff committee for a number of years, and in that capacity, he had expressed concerns about the standard of care at the hospital.  He circulated an email to members of the staff committee proposing a vote of no confidence in the board of the Trust.

(3)  That email provoked heated debate among the members.  The second defendant issued two emails, and the claimant argued that by the two emails, the second defendant meant that the claimant’s motivation in initiating the debate was concerned with his own remuneration, and that his motivation was not concerned with issues of patient care and improvement of standards at the hospital.

64.In considering the issue of vicarious liability, Eady J, who was especially experienced in presiding over libel cases, acknowledged that even though the Trust did not require the second defendant to publish the emails and was not aware of their contents prior to publication, that was not determinative of the matter.  The appropriate test was whether the wrongful conduct alleged was so closely connected with the acts the employee was authorised to do that for the purpose of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the ordinary course of the employee’s employment.

65.Applying that test, Eady J went on to hold that the Trust was not vicariously liable for the second defendant’s publication of the two emails and granted summary judgment to the Trust.  He set out his rationale at §§17 and 19 of the judgment:-

“17. I have come to the conclusion that the publication of the emails, in the circumstances I have briefly described, could not be legitimately regarded as being closely connected with the discharge of any of the functions Dr Hanna was employed to perform, whether clinical or administrative. While the subject-matter of the emails was clearly concerned with the way the hospital was run and the way the Claimant was behaving as a representative of the interests of senior clinical staff, that does not mean that Dr Hanna was acting, in any sense, on the Trust’s behalf in giving vent to his personal views and feelings on the subject or that it would accord with justice for the Trust to be fixed with legal liability for what he chose to say.

…

19. … It seems clear to me, by contrast, that the writing of the emails by Dr Hanna, or for that matter by any of the other senior clinical staff involved, could not be said to be in any way part of or incidental to the performance of the clinical function to which his employment related. Nor do I see it as in any way “just” that the Trust should be held liable for anything said by these doctors by way of participating in the debate.”

66.In the present case, it cannot be said that the 1^st Defendant authorised or directed the 2^nd to 4^th Defendants to issue the three emails, or that the publication of the emails was part of the business activity of the 1^st Defendant.  It is not sufficient for the Plaintiff to pray general reliance on the fact that the three emails were sent by the 2^nd to 4^th Defendants as employees of the 1^st Defendant regarding another employee.  Following Pena v Tameside Hospital NHS Foundation Trust, the pertinent question is what functions or field of activities have been entrusted by the 1^st Defendant as employer to the 2^nd to 4^th Defendants as employees.  Indisputably, they were employed by the 1^st Defendant as pilots and flight attendant respectively, and the publication of the three emails cannot be considered to be part of or incidental to the performance of the function to which their employment related.  In giving vent to their personal views on and feelings towards the Plaintiff, the 2^nd to 4^th Defendants were not acting on the 1^st Defendant’s behalf.

67.For the above reasons, if it had been necessary for me to decide, I would have found that the 1^st Defendant was not vicariously liable for the 2^nd to 4^th Defendants’ publication of the three emails.

Issue (5)  – Remedies

68.While, in light of the above rulings, the question of remedies does not arise, I would make a few observations on the remedies sought by the Plaintiff.

69.The Plaintiff seeks general damages and aggravated damages in the sum of HK$3,000,000.  Apart from saying that his reputation has been damaged and that he has been shunned and avoided as a result of the three emails, he tries to justify his claim for damages by suggesting that as a result of the three emails leading to his summary dismissal on 31 December 2016, he has suffered loss of earnings in the sum of HK$3,655,016 for the period from 1 January 2017 (ie the day after his summary dismissal)  to 20 August 2019 (ie the issuance date of the Writ of Summons), and that having been summarily dismissed he could not secure another role in the aviation industry.

70.These appear to me to be irrelevant factors.  In the normal course of event, the court in assessing the quantum of damages for loss of reputation may include something for loss of earnings: Blakeney-Williams v Cathay Pacific Airways Ltd (2012)  15 HKCFAR 261 at §94.  But in the present case, it was already adjudged in DCCJ 3612/2017 that the 1^st Defendant herein was entitled to summarily dismiss the Plaintiff for the reasons stated in the notice of termination.  Thus, irrespective of the three emails, the 1^st Defendant would and could summarily dismiss the Plaintiff, and I do not think it is arguable that in this action the Plaintiff could claim loss of earnings flowing from the three emails.

71.Separately, the Plaintiff seeks a mandatory order that the 1^st and 4^th Defendants do publish a written apology.  In Chow Wing Kai v Liang Jing [2021] HKDC 609, HHJ Kent Yee observed that the court had jurisdiction to make a mandatory apology order even against an unwilling defendant, but the more relevant question was whether the court should exercise the discretion.  The learned judge held that there would have to exist exceptional circumstances for the court to compel an unwilling defendant to make an apology.

72.Here, there is no indication that the 1^st and 4^th Defendants would be willing to apologize in case the court rules against them.  I am not convinced that there are exceptional circumstances, especially when DDJ Jonathan Wong already held in [2021] HKDC 46 that he was not satisfied that the 1^st Defendant could summarily dismiss the Plaintiff on the basis of the 2^nd to 4^th Defendants’ complaints, such that there should be no misconception that the Plaintiff was summarily dismissed because of the allegations contained in the three emails.

Conclusion

73.Despite the very able submissions of Ms Ho, for reasons stated above, I hereby dismiss the Plaintiff’s claims against the 1^st and 4^th Defendants in their entirety. Since the 1^st and 4^th Defendants chose not to attend the trial to render assistance to the court, I make an order nisi that there be no order as to costs.

Ms Cyndi Ho, instructed by M B KEMP LLP, for the Plaintiff

The 1^st and 4^th Defendants were not represented and did not appear