Kwaku Atuahene-gima v. Damon Drummond
Read the full judgment text of HCA 5429/1998 on BabelCite. This High Court CFI judgment was delivered on 14 January 2000.
1. Dr Damon Drummond ("Dr Drummond") was formerly an Assistant Professor in the Department of Management of the Faculty of Business in the City University of Hong Kong ("CityU"). He left CityU in July 1997. Dr Kwaku Atuahene-Gima ("Dr Kwaku") is the Head of the Department.
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HCA005429/1998 HCA13924/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.13924 OF 1997 ------------------
------------------- AND HCA5429/1998 ACTION NO.5429 OF 1998 -------------------
----------------------- Coram : Hon Mr Justice Cheung in Court Dates of Hearing : 13 to 17 and 20 to 22 December 1999 Date of Judgment : 14 January 2000 ----------------------- J U D G M E N T ----------------------- THE ACTIONS 1. Dr Damon Drummond ("Dr Drummond") was formerly an Assistant Professor in the Department of Management of the Faculty of Business in the City University of Hong Kong ("CityU"). He left CityU in July 1997. Dr Kwaku Atuahene-Gima ("Dr Kwaku") is the Head of the Department. 2. Since July 1997, Dr Drummond wrote a series of e-mails and letters concerning Dr Kwaku. These letters were sent to many people in CityU including the President, the Dean of the Faculty of Business, staff of the Management Department and other departments. These letters were not sent to Dr Kwaku. However, he was shown these letters by the Dean, his staff and a student. Dr Kwaku responded by two letters dated 24 September 1997 and 17 October 1997. Dr Drummond claimed that these two letters were defamatory of him. He also claimed that Dr Kwaku had slandered him in June 1997 and defamed him in an internal memorandum dated 2 June 1997 sent by Dr Kwaku to the staff of the Management Department. Dr Kwaku in turn claimed that four e-mails and a letter written by Dr Drummond were defamatory of him. They brought two separate actions against each other. The actions were consolidated and an 8-day trial was conducted before me. 3. Before I examine the correspondence, I will deal with some of the major topics mentioned in these letters. EMPLOYMENT 1. 1st contract renewal 4. Dr Drummond started to work at CityU in September 1994 on a 22 month contract ending on 30 June 1996. On 30 November 1995, he applied for contract renewal. At that time the Head of the Management Department was Professor Yau. On 17 January 1996, Dr Drummond's application for contract renewal was rejected by the Appointment Committee of the Faculty of Business. According to the notes of the Committee :
5. Dr Kwaku became the Head of the Department in February 1996. Dr Drummond sought his help to appeal against the decision of the Appointment Committee. Dr Kwaku advised him on the potential grounds of appeal. On 16 February 1996, Dr Drummond lodged the appeal in which he stated, among other things, that :
6. The appeal was successful. On 27 March 1996, the acting Vice-Chancellor, Professor Young, informed Dr Drummond by letter that his contract would be extended for one year to end on 30 June 1997. Professor Young further asked Dr Drummond "please seek advice from your Head of Department on how you may possibly prepare yourself for the next assessment". By a letter of the same date, Professor Young asked Dr Kwaku to bring to the attention of Dr Drummond and another staff whose contract was also extended as to their shortcomings and advise them on how they may prepare themselves for review in December 1996. 7. Dr Kwaku asked Dr Drummond to prepare a plan to be supplied to the Dean and the Vice-Chancellor with the view that if Dr Drummond could accomplish the tasks set out in the plan, he would have no problems for the next contract renewal. However Dr Drummond refused to prepare the plan saying that the members of the Appointment Committee was biased against him. 8. Dr Kwaku was of the view that Dr Drummond's strategy for research did not match his career strategy. Dr Drummond had two major research projects covering four to five countries. Each taking some four to five years to complete. This was a dangerous approach for a person with a two-year contract because he would not have produced any publication when the contract came out for renewal. No university would continue to renew the contract based on such research projects particularly when his research publication record was not strong. While Dr Drummond had publications in some business journals, these journals were not international refereed research journals recognised by CityU. 2. 2nd contract renewal 9. In November 1996 Dr Drummond discussed with Dr Kwaku and Dr Akhtar, who was the course co-ordinator of Dr Drummond, on Dr Drummond's contract renewal. Dr Kwaku was of the view that Dr Drummond's teaching was good but his research needed to be improved. It is apparent from the application for renewal that Dr Kwaku had given very favourable comments regarding Dr Drummond's contribution to teaching, organised student trip to Japan and his development of a CD on teaching. It was written that Dr Drummond was "clearly an asset to the Japanese stream of the Bachelor of Arts International Business (" BAIB") Programme. His strength appears to be in the area of teaching and instructional development. His commitment to contribute to the department was beyond doubt and the weakness was in the research area." 10. Professor Ho, the Dean of the Business Faculty, however, did not look favourably to Dr Drummond's application. His endorsement on the application was : "This is a really marginal case. Dr Drummond's teaching evaluation is average and his research is very weak." 11. On 15 January 1997, the Appointment Committee met and Dr Drummond's application was unsuccessful. Five voted for the non-renewal of the contract and two voted for an extension of the current contract for one year. Dr Kwaku voted for Dr Drummond's contract renewal. The notes of meeting recorded that "DECISION : T - No re-appointment be offered." "T" is the acronym used by CityU for termination. 12. Dr Drummond asked Dr Kwaku to appeal the decision on his behalf. Dr Kwaku refused to do so on the ground that he was a member of the Appointment Committee and had taken part in the decision. 3. Temporary employment 13. Dr Kwaku told Dr Drummond that he might be able to recommend a temporary appointment to be offered to him so he should apply for one. In fact, right after the voting on Dr Drummond's application, Dr Kwaku had informed members of the Committee that he wanted to talk to Dr Drummond for him to apply for temporary appointment. He believed Dr Drummond was very useful to his department and it was very difficult for him to recruit staff who were knowledgeable in Japanese management and could speak the Japanese language. Dr Kwaku was told that the Head of the Department could discuss with anyone concerning temporary appointment. 14. Dr Drummond asked for the terms of the employment and in late March 1997, Dr Kwaku made enquiries with the Human Resources Office of CityU and was told that there was no housing allowance, no end of contract gratuity and no medical benefits for the temporary staff. In April 1997, Dr Kwaku further provided Dr Drummond with the conditions of service of the temporary employment. 15. On 7 April 1998, Dr Drummond wrote and demanded to be given terms which were not available to a temporary appointment. At the beginning of the letter, he wrote "As you would appreciate the spirit of any agreement is that I would like to be treated fairly and with integrity." 16. Dr Kwaku immediately spoke to Dr Drummond saying that he could not recommend the conditions for a temporary appointment. At that time, another academic who previously worked in CityU and had a Japanese background wished to join the Department. Dr Kwaku had discussed with Dr Drummond about this candidate, but Dr Drummond accused Dr Kwaku of doublecrossing him, of being dishonest and that he had no intention to get him to stay at CityU. He accused Dr Kwaku of recommending this candidate to fill his position. 17. According to Dr Kwaku, Dr Drummond did not apply for the temporary appointment. He refused to continue with the organization of a Japanese study tour which he had undertaken. The other academic who was given the contract by CityU was asked by Dr Kwaku to organize the tour. From that point onwards, Dr Drummond would not acknowledge Dr Kwaku's presence and his greetings. Whenever he met Dr Kwaku in the corridor, he would address him as 'King'. Dr Kwaku, who originated from Ghana, stated that he is the King of the Ashanti people of his country. 18. According to Dr Drummond, the information from the Human Resources Offices of CityU set out "an offer for a position as a temporary full time academic position". On 15 April 1997 Dr Kwaku asked him for his decision, he replied that "I decline the offer on the conditions made". He said at that stage he no longer had any trust or confidence in Dr Kwaku. And on the following day, he sent a e-mail to a number of his colleagues advising of his decision :
4. External investigator 19. Dr Drummond was involved in a research project with Dr Snell and Professor Taylor. Although Dr Drummond was leaving in July 1997, Dr Snell wanted him to continue as an external investigator in the project. Dr Snell asked Dr Kwaku to endorse his recommendation. Dr Kwaku refused to do so. Dr Kwaku wrote on the application : "Not endorsed. The department would not like any official association with Dr Drummond, after he leaves CityU." 20. Dr Kwaku said that he made this decision because given official recognition as an external investigator of a research project in the department, Dr Drummond would be entitled to come to the department and use resources for the project. Further, he took into account Dr Drummond's recent behaviour and his potential impact on harmony and collegiality in his department. JAPANESE STUDIES COURSE 1. Proposed changes 21. For many months, there were discussions on changes in the Bachelor of Arts in International Business Studies (Japan Stream) ("BAIBS") Programme. This is part of the general exercise to change the undergraduate programme in the five departments in the Faculty of Business. Every department was requested to change the programme to fit into a new Bachelor of Business Administration (BBA) degree structure. Dr Snell was the co-ordinator of the undergraduate programme, he had frequent discussions with Dr Drummond on the changes. Dr Drummond disagreed with the change. However, Dr Snell kept on discussing with him on the change. 2. Meeting of 12 February 1997 22. On 12 February 1997, a meeting was called by Dr Snell. Dr Drummond unilaterally invited a group of students to that meeting as well as some additional staff. At the beginning of the meeting, in front of the staff and students, he called for Dr Snell's resignation and spent 5 to 10 minutes claiming that Dr Snell was unfit to run the programme. 23. Dr Drummond's comments were so strong that Dr McFetridge who chaired the meeting stated that he would not allow the meeting to continue unless Dr Drummond withdrew his remarks. Dr Drummond then agreed to do so. 24. Dr Kwaku turned up at the end of the meeting. Dr Drummond said something to the effect that he, i.e. Dr Kwaku was uninterested in the programme and was trying to do away with it. He then stormed out of the meeting. 3. Meeting of 29 May 1997 25. On 29 May 1997, another departmental meeting was held. This was the last meeting for the academic year. Forty academic staff were present, as well as research students and demonstrators. When the agenda moved to the "Any Other Business" item, a one-page paper on the future of the BAIBS Japan course was tabled. There were discussions on this topic. Dr Drummond was arguing hard for retaining the current structure. Then Dr Drummond stood up and became very agitated. 26. By all accounts, Dr Drummond was behaving emotionally at this meeting. According to Dr Mondejar, Dr Drummond turned red and was visibly troubled. He appeared to be so agitated that Dr Mondejar believed he might become physically violent. He actually advanced towards Dr Kwaku whilst appearing physically agitated. He accused Dr Kwaku to be incompetent and that he had failed to get him a renewal of contract. Dr Kwaku kept responding to these accusations saying that he would not resign, which only made Dr Drummond even more agitated. Dr Mondejar asked Dr Kwaku to stop responding to Dr Drummond. Dr Mondejar stated that in his 20 years experience as an academic, he had not seen an act like that of Dr Drummond before. 27. According to Dr Anthony Ko, the Associate Head of Department, who was also present at the meeting, the impression he got was that Dr Drummond believed that Dr Kwaku had done things that adversely affected his application for renewal of contract with CityU and that Dr Kwaku had not been treating him fairly. 28. According to Dr Akhtar, he saw Dr Drummond pointing fingers at Dr Kwaku, accusing him of telling lies and sabotaging the continuation of the Japan Study Course. Dr Akhtar considered this as an act of physical intimidation and public humiliation for Dr Kwaku as the Head of the department. 29. Among the allegations that were levelled by Dr Drummond against Dr Kwaku at that meeting was that he had changed his recommendation for Dr Drummond's contract renewal after he, i.e. Dr Drummond had signed the application and that Dr Kwaku did not present Dr Drummond's case for contract renewal properly to the Faculty's Appointment Committee. 4. The next day 30. On the following day, Dr Kwaku went to Dr Drummond's office and told him that the allegations he had made on the previous day were damaging to his professional integrity and reputation among the staff in dealing with matters regarding their careers. He asked Dr Drummond if he would allow him to release his contract renewal document so that the staff could see for themselves whether he did change or revise his recommendations as he had alleged. Dr Drummond refused and asked him to leave his office saying that his reputation was already in tatters. 31. According to Dr Drummond, Dr Kwaku demanded him to sign a document that he would publish. Dr Kwaku stood over him and was very persistent. Dr Drummond felt extremely intimidated by his behaviour, he refused to sign the document. 5. Internal memorandum of 2 June 1997 32. On 2 June 1997, Dr Kwaku issued an internal memorandum entitled "Procedures for Contract Renewals, Extensions, Crossing Efficiency Bars, Substantiation and Promotions" to all the staff of the Management Department. The opening paragraphs of the memo stated that :
In this memo Dr Kwaku stated that he had argued for nine staff members in contract renewals, extensions, crossing efficiency bars and substantiation since becoming the head of the department. In eight cases his recommendations were accepted by the Committee. The memo concluded by saying :
COMPUTERS 1. Dr Kwaku's case 33. In September 1996, a decision was taken by the Management Department to replace the existing computers which had been upgraded with new computers. In February 1997, Miss Julianna Chan, the Executive Officer of the Management Department found that she had problems storing the obsolete computers that had been replaced and there was a need to dispose of them. 34. Dr Kwaku consulted Dr Ko, Professor Tse and Miss Chan. It was decided that the computers would be sold to the permanent staff since a few of them had asked to buy the computers. Dr Kwaku was not required to consult the Department Executive Committee because the procedure for disposing of obsolete equipment did not require him to get permission from this Committee. Under the procedure of CityU, the authority lies with the head of department. Dr Kwaku asked Miss Chan to dispose of the computers. 35. Miss Chan checked with the Computer Centre and Finance Office of CityU about the selling price of the obsolete computers. The Computer Centre stated that the computers were worthless and should be given away. Miss Chan decided to fix an asking price depending on the memory capacity of each computer. The price would be either $500 or $600. 36. Miss Chan sent a departmental message concerning the sale of computers to the full-time academic and general staff via the Departmental Computer Bulletin Board in January 1997. Thirty-two computers were sold to full-time academic and general office staff. Three computers were intended for donation to King George V School in Hong Kong and three to the University of Ghana. The donation to Ghana did not go through because the University of Ghana could not afford to pay for the transportation charge. 37. There were 19 computers which no staff wanted to buy. They were eventually auctioned by the Finance Office in November 1997. The price was $600 to $700 per computer depending on the memory. This latter batch of computers fetched a higher price because about $100 was spent on each computer to clear the memories in the hard disc whereas the earlier ones were not cleared. 38. Dr Drummond purchased a 486 computer and paid with his personal cheque on 25 February 1997. He signed a receipt and was issued with a permit on the same day, allowing him to take the computer out of CityU. 39. According to the transcript of the meeting of 29 May 1997, the following were the exchange between Dr Kwaku and Dr Drummond on the computer :
2. Dr Drummond's case 40. According to Dr Drummond, he learned in February 1997 that certain staff members had been offered the opportunity to purchase personal computers. He was not aware of any public announcement on the sale. He and his research assistant, Miss Aki Seiki, were each interested in purchasing a personal computer. They asked Miss Betty Chan, who was the clerical officer, whether they could buy two surplus personal computers. Miss Betty Chan informed him that his computer had been allocated for other purposes but she would see what she could do to locate other surplus computers. Miss Seiki was allowed to purchase a computer. On 25 February 1997, Miss Betty Chan delivered the computer to the office shared by Dr Drummond and Miss Seiki. As Miss Seiki was absent, he signed for the computer and paid the purchase price by cheque on her behalf. He said that other staff members also signed for computers on behalf of their assistants, such as Dr C.S. Tseng. Miss Seiki later reimbursed Dr Drummond and removed the computer to her residence. 41. Dr Tseng agreed in evidence that after he bought his own computer, he was asked by a research student to buy a computer for her. He signed for the form but he did not know about the result. 42. According to Dr Drummond, Dr Kwaku subsequently intimated that he had purchased a computer for his own. Despite his clarification and request, Dr Kwaku had refused to retract his statements. 3. Miss Betty Chan 43. Miss Betty Chan, the clerical officer instructed to dispose of the computers, had asked the lecturers if they want the computers. The computers were to be sold to lecturers and the clerical staff in the general office. They could not be sold to demonstrators or research assistants. 44. She had asked Dr Drummond whether he wanted his computer. She said she could remember the delivery of the computer to Dr Drummond because he had asked her questions about the computer. She said that Dr Drummond was not in his office at that time, his research assistant was working in his desk. She put the computer next to his desk. Later on Dr Drummond questioned her about the computer because he thought that she had given the computer to the research assistant. 45. Miss Betty Chan stated that some lecturers wanted more than one computer, but they did not get more than one because there was not enough computers. THE LETTERS, E-MAILS AND EVENTS 1. 7 July 1997 46. On 7 July 1997, Dr Drummond e-mailed to the staff of the department. The heading of the e-mail was "Management abuse of power". In it, Dr Drummond stated that "I am sicken to report another sad and unfortunate event:" then he dealt with the words written by Dr Kwaku in refusing to endorse him as an external investigator. 2. 9 July 1997 47. On 9 July 1997, Dr Drummond wrote to Professor Cheng, the President of CityU with a copy to Professor Ho, the Dean. The letter was e-mailed to the staff of the Management Department on 10 July 1997. On 18 July 1997, Dr Drummond further sent a e-mail to the staff of CityU enclosing the letter he sent to Professor Cheng. In his letter to the President, Dr Drummond stated, among other things, the following :
3. 21 July 1997 48. Dr Drummond sent a e-mail to Dr Mondejar and Dr Akhtar.
4. Dr Kwaku and Professor Ho's response 49. On 15 July 1997, Dr Kwaku wrote to Professor Ho in response to Dr Drummond's letter to the President dated 9 July 1997. He stated that :
Dr Kwaku then dealt with the question of the external investigator. He stated that :
By a memo dated 18 July 1997, Professor Ho referred Dr Kwaku's clarification to Professor Lam, who was the Vice-President of CityU. Professor Ho stated that :
5. Professor Lam's response of 21 July 1997 50. On 21 July 1997, Professor Lam wrote to Dr Drummond stating, among other things, that :
6. Meeting of 22 July 1997 51. On 22 July 1997, Dr Kwaku met Dr Drummond together with Dr Taylor and Dr Mondejar in Professor Taylor's office. In this meeting, Dr Drummond accused Dr Kwaku of the following :
Dr Kwaku explained :
The meeting was concluded by Professor Taylor telling Dr Drummond to forget and accept the situation about the non-renewal of his contract and try and find employment elsewhere. Dr Drummond stormed out of the room vowing to continue to pursue this matter. 52. According to Dr Mondejar, Dr Drummond again became very agitated in the meeting. Although Professor Keith supported Dr Drummond on a number of points, eventually, Dr Drummond turned on Dr Taylor himself accusing him of misunderstanding him. 7. 22 July 1997 53. Dr Drummond stated, after he received the letter, he talked to Professor Lam who asked him to write to Professor Ho if his letter was incorrect. On 22 July 1997, Dr Drummond wrote to Professor Ho in which he stated, among other things, the following :
Dr Drummond stated in the letter that he would give further evidence if an impartial redress committee was to be set up in the future. He referred to the loss of faith by his departmental colleagues. He concluded the letter by saying "I am confident a remedy can be found. There is a need to begin this process as quickly as possible so that confidence in the management system and departmental morale can be fortified". In the last page of the letter, it was stated that the letter was copied to the President and the staff. 8. 23 July 1997 (a) 1st e-mail 54. By e-mail dated 23 July 1997 under the heading "Management abuse of power", Dr Drummond wrote to the staff of the Management Department and other departments stating that :
55. He then dealt with the letters he wrote to Professor Ho and the comments of Professor Lam to his earlier letter. This e-mail further stated that :
He concluded the letter by stating that :
(b) 2nd e-mail 56. By e-mail dated 23 July 1997, under the heading "Management abuse of power", Dr Drummond informed Dr Mondejar that he had also submitted the following information for investigation. He then repeated the matters set out in his letter to Professor Ho dated 22 July 1997 concerning the discussion of 29 May 1997 on the computer and the termination of the Japanese Studies Course. He further referred to the meeting between him and Dr Kwaku on 30 July 1997. (c) Other letters 57. On 23 July 1997, Dr Drummond also sent to Professor Lam the letter he had written to Professor Ho. 58. On 23 July 1997, Professor Ho wrote to Dr Drummond stating, among other things, that :
Professor Ho stated that the other issues raised in Dr Drummond's letter of 22 July 1997 would be dealt with when he returned from leave in late August 1997. 9. 25 July 1997 59. On 25 July 1997, Dr Drummond again e-mailed to the staff of the Management Department under the title "Management abuse of power (2)" in which he stated that he received a letter from Professor Ho stating three points :
Professor Ho clearly did not in this letter of 23 July 1997 state that Dr Kwaku had full authority to make an offer to him. 10. 9 September 1997 60. After Dr Drummond left CityU, he went to the University of Hong Kong, Department of Japanese Studies, as an honorary researcher. On 9 September 1997, using the letterhead of the Department of Japanese Studies of HKU, Dr Drummond wrote to the staff of the Management Department in CityU. The heading of the letter is "Proposal to terminate the BBA International Business (Japan Studies) Course on 29 May 1997". The letter begins by the following :
He then set out his comments on various topics such as low student application numbers, student performance, overall curriculum, employment, unsupportive context, MG departmental directions and compatibility with the MAIBM. He stated that :
In this letter, he referred to the lack of clear marketing and management head support; acknowledged problems which are departmental founded and lack of interest by successive department heads. 11. 10 September 1997 61. On 10 September 1997, Dr Drummond wrote to the President of CityU again enclosing the previous letter he wrote to him and to the Dean. He stated that :
He further asked for a response to his earlier letters. 12. 25 September 1997 62. Professor Ho had asked his Associated Dean, Professor Hui to carry out an investigation. On 25 September 1997, Professor Ho wrote to Dr Drummond responding to his letter of 22 July. He stated that :
63. Dr Drummond said that he only received this letter from Professor Ho on 24 October 1997. 13. 24 September 1997 64. The letter of 9 September 1997 written by Dr Drummond was given by a staff to Dr Kwaku. He stated that he had for several months endured Dr Drummond's allegations hoping that when he left CityU, the whole matter would end. However, he was distressed by the allegations contained in this letter written on the letterhead of HKU. HKU is regarded as a major competitor to CityU. On 24 September 1997. He wrote to Professor Refsing, who was the Head of the Department of Japanese Studies in HKU :
14. 29 September 1997 (a) Professor Refsing's letter 65. On 29 September 1997, Professor Refsing wrote to Dr Drummond stating that he was not entitled to use her department letterhead paper for letters not directly connected with their scholarly activities. She further stated that her department will "in no way involve itself with any quarrel that you may have with your former place of work, and to insist that you ensure that no such involvement can be construed". 66. Professor Refsing also wrote to Dr Kwaku enclosing her letter to Dr Drummond and stated that she hoped "this will clear up matters". (b) Dr Drummond's letter 67. On 29 September 1997, Dr Drummond wrote to the President of CityU again. He referred to Dr Kwaku's letter to Professor Refsing of 24 September 1997 and stated that "(It) is unfortunately a further example of the unfair, unjust and unreasonable treatment of Dr Kwaku". He said this letter "is the third time that I have undisputable evidence that he has tried to intimidate me". He asked "is this intimidation condoned by the University?" Referring to Dr Kwaku's letter, Dr Drummond stated that :
The letter stated that :
He asked for reconciliation provided that was the genuine intention of all parties like himself. The same letter was copied to Professor Ho. 15. 17 October 1997 68. On 17 October 1997, Dr Kwaku wrote to Dr Drummond :
(Quoting the letter on computer.)
(Quoting the letter.)
A copy of the cheque issued by Dr Drummond and his acknowledgment of the receipt of the computer both dated 25 September 1997 was attached to this letter. This letter was copied to the President, the Dean, the staff of the Management Department and Professor Refsing. 16. 25 October 1997 69. On 25 October 1997, Dr Drummond wrote to Professor Ho referring to, among other things, Professor Ho's letter of 25 September 1997. In this letter, Dr Drummond disputed Professor Ho's finding on the computer, the Japanese Course discussion and the comments written by Dr Kwaku on 7 July 1997 on the request to use Dr Drummond as an external investigator. 17. 6 November 1997 70. On 6 November 1997, Dr Drummond wrote to Professor Ho with a copy to the President of CityU in which he dealt further with the question of the computer. He also referred to the letter from Dr Kwaku dated 17 October 1997. He asked "Is this another act of Kwaku to save his reputation at City U and maximise damage to me??" 18. 13 November 1997 71. On 13 November 1997, Dr Drummond wrote to the Chairman of the Department of Management - Departmental Meeting and the staff of the Management Department. He started by saying that "I am writing to you to bring your attention to a serious matter of due procedure and state that I feel that I am being treated, 'unfairly, unjustly and unreasonably'." He referred to the inaccuracy of the Minutes of Meeting of 29 May 1997. Among other things, he referred to item M8 of the minutes which stated that : "Damon Drummond's suggestions and arguments became very emotional and personal (and) ... minutes suspended." Dr Drummond stated that "I believe this to be totally unfair, unjust and unreasonable. It is up to the members to decide what should and should not be included." COMMENCEMENT OF ACTIONS 72. The action by Dr Drummond was commenced on 19 December 1997 while that of Dr Kwaku was commenced on 4 April 1998. DR DRUMMOND'S CASE 73. Dr Drummond claimed the letters of 24 September and 17 October 1997 from Dr Kwaku defamed him. He said the letter of 24 September 1997 in its ordinary and natural meaning meant and was understood to mean that :
He said that the 17 October letter in its ordinary and natural meaning meant and was understood to mean that :
ARE THE WORDS DEFAMATORY IN THE LETTER OF 24 SEPTEMBER 1997 74. A defamatory imputation is one to the plaintiff'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, contempt or ridicule (Gatley on Libel and Slander, 9th Edn., para.2.1). 75. In my view it is defamatory to claim that someone had made unfounded allegations against another person which were found to be false and that the allegations were malicious in nature. This was what Dr Kwaku wrote about Dr Drummond in his letter of 24 September 1997. COMPLETE DEFENCE 76. However, in this case Dr Kwaku has a complete defence to the charge of defamation by reason of qualified privilege and justification. 1. Qualified privilege (a) Principles 77. The following is a summary of the principles in Gatley :
(b) Response to attacks 78. It is clear from the letter of 24 September 1997 that Dr Kwaku was responding to the attacks that had been made against him by Dr Drummond since February 1997 in one form or the other, either verbally or by written letters and e-mails. I accept Dr Kwaku's evidence that at this stage, he had already received a letter dated 22 September 1997 from Professor Ho responding to Dr Drummond's allegations made against him. The same letter was written by Professor Ho to Dr Drummond on 25 September 1997. 79. In my view, Dr Kwaku was justified to write to Professor Refsing to enquire whether the views expressed in the letter of 9 September 1997 was shared by her department. After all the letter was written on the letterhead of HKU, dealing with a matter of his own department in CityU. Professor Refsing obviously had an interest to know of the activities of Dr Drummond in this regard. 80. Dr Kwaku said that Dr Drummond may not give a fair account of the nature, strengths and weaknesses of CityU's Japanese Studies Programme in his discussions in HKU. Professor Refsing's evidence was that she was told by Dr Drummond of the personal conflict between him and Dr Kwaku. In my view, Dr Kwaku was clearly entitled to let Professor Refsing and her department know of the true facts as to the allegations made by Dr Drummond and his motives in making them. In my view, the sending of this letter was reasonable and was no wider than was necessary in order to inform those who were interested. (c) Malice 81. A defendant is entitled to be protected by qualified privilege unless some dominant improper motive on his part is proved. The usual motive relied on is that of injuring the plaintiff, but there may be others. Knowledge that a statement would injure the plaintiff does not destroy the privilege if the defendant was using the occasion for this proper purpose (Gatley para.16.3). Malice in the actual sense may exist even though there is no spite or desire for vengeance in the ordinary sense. Any indirect motive other than a sense of duty is what the law calls 'malice' (Gatley, para.16.5). (d) No malice by Dr Kwaku 82. There was clearly no malice by Dr Kwaku in writing this letter. I have set out fully the events to show what Dr Drummond had said and done in the past few months. It also showed what Dr Kwaku, as the Head of his department, had to endure from the attacks of Dr Drummond. What he did was a natural response to these attacks. 2. Justification 83. Dr Kwaku also relied on the defence of justification, in other words, the defamatory imputation that is now being sued upon is substantially true (Gatley, para.11.1). 84. In his letter of 24 September 1994, Dr Kwaku did not set out the details of the allegations made by Dr Drummond against him. For the purpose of defence of justification, it is not necessary for Dr Kwaku to prove each and every of the allegations made by Dr Drummond against him was unfounded. However, Dr Kwaku is clearly able to show that the allegations that Dr Drummond made against him are unfounded.
85. Dr Drummond claimed that Dr Kwaku had mismanaged his department. He clearly was unable to substantiate this allegation. 86. By all accounts, Dr Kwaku is a forthright person. According to Dr Mondejar, he is blunt and said things as it is without mincing words. Dr Mondejar, who is one of the most senior member of the Management Department, has no complaints about Dr Kwaku's management abilities or his management of his department. Dr Mondejar stated that while Dr Kwaku's style might not agree with everyone, his management of the department is competent. He could think of no examples of incompetent management on the part of Dr Kwaku. During his eight years with CityU, Dr Mondejar had served under four Heads and he would say Dr Kwaku is the most competent of them all. He did not believe that Dr Kwaku had abused his power as the Head, nor had he intentionally victimized any member of the staff. 87. Dr Anthony Ko, who was the Associate Head of Department, described Dr Kwaku as a fair administrator in that he is not discriminatory, or gives favours to those he likes. 88. Professor Ho, Dean of the Faculty, has no complaints at all about the management of Dr Kwaku of his department. Even Dr Snell, who gave evidence for Dr Drummond, described Dr Kwaku's management as fair. Dr Snell described the management style of Dr Kwaku to be autocratic and this probably reflected tough circumstances. In his earlier statement dated 28 September 1998, Dr Snell also described Dr Kwaku's management approach to be autocratic, but he did not believe that Dr Kwaku had mismanaged the department or abused his power as Head of Department.
89. Dr Drummond's allegation is that the computers were sold to a selected few and there was personal interest involved in donating the computer to Ghana. The investigation carried out by Professor Ho clearly showed that the sale of the computer was notified to all the staff of the Management Department. No personal gain was involved in the donation of the computer. That must be the end of the matter. The finding by Professor Ho clearly removed any allegation of misconduct on the part of Dr Kwaku. In any event, I find as a matter of evidence that the staff of the Management Department was properly notified of the sale of the computer. Dr Kwaku was clearly entitled to donate obsolete articles such as books of old editions and replaced computers to developing countries. Indeed, there had been previous donations of books of old editions to universities in various parts of the Mainland.
90. Changes to this course in fact was a long term processes. Other staff such as Dr Anthony Ko was also involved in suggesting the change. The matter was discussed on 29 May 1997 and there was no decision to terminate the course. This was found by Professor Ho to be the case.
91. Professor Lam in his letter of 21 July 1997 had stated that perhaps the tone of Dr Kwaku's comment was unwarranted, but this comment cannot be interpreted as vindictive. In Professor Ho's finding of 22 September 1997, the comment of Dr Kwaku only stated the department's position of not allowing external people to use CityU's resources after Dr Drummond had finished his service at CityU.
92. There was complaint about the number of teaching hours that was allotted to Dr Drummond. In this regard, Dr Kwaku delegated to Dr Snell to allocate the teaching hours to the staff. There was discussion between Dr Kwaku and Dr Drummond on the proportion of his time that should be allotted to teaching and to research when the staff of the department were asked at short notice to handle teaching. This was because of an unexpected event when the staff who was assigned with the task was delayed in arriving for the job. Furthermore, Dr Kwaku had agreed and in fact had informed the Appointment Committee that Dr Drummond was asked to do extra teaching in order to help out the department. 93. The complaint by Dr Drummond and some of his witnesses was that some teaching staff in the Management Department were given less teaching assignments. These turned out to be those staff who were asked by Dr Kwaku to complete their PhD degrees. Before CityU gained its status as a university, it was a polytechnic. Many of the staff of the polytechnic did not have PhD degrees. Dr Kwaku encouraged them to complete the PhD degree as quickly as possible. Many of them had already commenced the degrees but had delayed in completing them. During the three years when Dr Kwaku was the Head of Department, a total of nine PhD degrees were awarded, two other candidates are about to complete their PhD degree. The purpose of encouraging the staff to complete their PhD are two-fold : first, to enhance the reputation of the department when about 85% of its teaching staff were PhD holders; second, for the benefit of the staff themselves as well. 94. One of Dr Drummond's witnesses is Dr Hempel. He suggested that allowing the staff to complete their PhD degrees would not assist the department because this will not involve extra funding to the department for research work. 95. In my view, although encouraging the staff to complete the PhD degrees will not bring in extra funding to the department, clearly the department's reputation as a centre of higher learning is enhanced by the academic qualification of the teaching staff. I think it must be to the credit of Dr Kwaku that he encouraged his staff to complete the degrees and that within the space of three years so many staff were able to complete their PhD degrees.
96. Dr Drummond also relied on the refusal of Professor Ho to endorse his Japanese Studies Tour on the day of his departure and to provide him with the finance to do so. It is clear from the evidence that Dr Kwaku had supported Dr Drummond in this regard. The refusal to provide him with funding did not lie with Dr Kwaku but on the faculty level. Dr Kwaku in any event managed to obtain the funding both for Dr Drummond and his assistant.
97. Dr Drummond also referred to the problem of the application by a graduate student to take up the PhD course. Clearly this is not a mismanagement on the part of Dr Kwaku.
98. One of the teaching staff of the department was Dr C.S. Tseng who stated that Dr Kwaku had treated him unfairly on a matter and this caused him great distress. It is clear from the evidence of Dr Tseng that he was unwilling to bring this issue up again. After that incident, the relationship between him and Dr Kwaku was cordial. Dr Kwaku acknowledged that he had made a mistake in relation to Dr Tseng. This was when he first became the Head and had little experience at that time. He apologized to him for the mistake he had made. This episode cannot be an indication of mismanagement by Dr Kwaku.
99. It was also suggested that there was favouritism shown by Dr Kwaku. This turned out to be the innovation technology project, which was one of the goals proposed by Dr Kwaku for the Management Department when he ran for its Head. This was his brainchild and obviously he wished to bring the idea into fruition. Ultimately this project would benefit the Department as a whole. It shows the pettiness of those who used this as an attack on Dr Kwaku.
100. The Management Department has about 40 teaching staff. There are obviously some disgruntled staff in the Department who complained that Dr Kwaku had mismanaged the department. Some of them, for example, Dr Herndon referred to some problems with his office accommodation because of decoration work. Clearly these are trivial matters and cannot be regarded as mismanagement on the part of Dr Kwaku. Dr Herndon, had clearly no interest in carrying out substantial research while he worked in CityU and he preferred to conduct research by survey. Dr Hempel clearly was dissatisfied with CityU as a whole. He went so far as to describe it as "S...U" (expletive deleted) in his correspondence with Dr Drummond. Dr Hempel who complained of his teaching load in CityU was actually engaged in a teaching course for the Hong Kong Police as part of the consultancy work that academics in CityU are entitled to carry out and of which he received payment. The same applies to Dr Drummond who was also engaged in the teaching of the Hong Kong Police. Dr Martinson was one of the staff who benefited from Dr Kwaku's approach in giving them time to complete the PhD degree. He now criticises Dr Kwaku for being autocratic and showing favoritism.
101. Crossing of the efficiency bar is one of the assessments conducted by CityU of the performance of the staff. According to Dr Drummond, he was invited by the Personnel Office to cross the bar. He consulted Dr Kwaku who asked him to make the application as he did not think he would encounter any problems. After submitting his application, he understood that Professor Ho commented to Dr Kwaku that his application would cause embarrassment following the rejection of his application for reappointment earlier. In early June 1996, Dr Kwaku encouraged him to withdraw his application in order to enhance his prospect for reappointment. Dr Drummond stated that it was agreed that his application would be erased from the record, although he subsequently discovered that this did not occur. 102. I do not see how this episode would show that Dr Kwaku had treated Dr Drummond unfairly or had mismanaged his affairs. A practical decision had to be taken on whether to pursue with the application to cross the efficiency bar or not. LETTER OF 17 OCTOBER 1997 Are the words defamatory? 1. I find that it is defamatory to suggest that someone had deliberately tried to tarnish another one's reputation by deliberate lies. 2. The word 'termination' is a neutral word (see the comment of Le Pichon J in Hung Yuen Chan Robert v. Hong Kong Standard Newspaper Ltd [1996] 4 HKC 519. A person's contract of employment may be terminated as a result of the expiration of the term, by notice or for cause. In this case, the letter referred to the termination of the employment due to Dr Drummond's personal shortcomings for a university position. In other words, Dr Drummond was not a suitable person to hold a position as an academic at a university. In my view, this is defamatory. 3. The letter referred to the serious and malicious allegations made by Dr Drummond which were found to be false. In my view, these words are defamatory in nature. 4. The letter also called Dr Drummond a liar. Gatley at para.2.19, had given examples that it is defamatory to describe someone as a liar. Dr Kwaku referred to the Scottish case of Agnew v. British Legal Assurance Company [1906] 8 F 442 in which the Scottish Court of Session held that while the word 'liar' is abusive, it is not defamatory. The comment of Gatley at para. 3.23, note 13 is that in practice, plaintiffs have to meet more stringent standards in Scotland. In my view, to describe someone as a liar is defamatory. THE DEFENCE 103. The defence of qualified privilege and justification are also raised by Dr Kwaku to these charges of defamation. 1. Qualified privilege
104. Dr Kwaku's letter of 17 October 1997 clearly comes within the ambit of qualified privilege. Subsequent to Dr Kwaku's letter of 24 September 1997, Dr Drummond wrote again to the President and Professor Ho on 29 September 1997 stating that the letter from Dr Kwaku is a further example of his unfair, unjust and unreasonable treatment. He said it is an undisputable evidence that Dr Kwaku had tried to intimidate him. 105. Dr Kwaku's response in his 17 October 1997 letter is clearly a refutation of the allegations made by Dr Drummond against him. Copies of the letter was sent to the President, the Dean, Professor Ho and the staff of the Management Department. They were all recipients of Dr Drummond's previous letters and e-mails and fax, they clearly had an interest in this matter and they were members of CityU.
106. Dr Drummond said that a copy of this letter was also pinned to the Department notice board at CityU. He is unable to substantiate his claim that the letter was pinned on the notice board. The evidence of Dr Herndon was that he believed but was not sure that the letter was also displayed on the notice board. I find that there was no such notice.
107. Dr Kwaku stated that the reason why he copied the letter of 17 October 1997 to Professor Refsing are as follows :
I find that Professor Refsing had an interest to receive the letter for the reason I have stated earlier.
108. Qualified privilege is vitiated by malice. Clearly there was no malice by Dr Kwaku in writing the letter of 17 October 1997. He was responding to the attacks on his personal and professional capacity from Dr Drummond since February 1997. Strong words may be used by him in this letter, but one would expect such languages to be used by someone who had endured such attacks for so many months. There clearly is no indirect or improper motive in making the reply, nor did he made the statements in the letter knowing them to be untrue. 2. Justification 109. I have already dealt with many of the items which Dr Kwaku could justify. I will deal with the following matters :
110. As to the part of the letter in which Dr Kwaku referred to the personal shortcomings of Dr Drummond, it was his comment on the conduct of Dr Drummond and in my view is relevant to the accusations that had been made against him. It was due to the unsatisfactory performance of Dr Drummond as an academic in CityU that his contract was not renewed. The word 'termination' in fact has been used by CityU in contract renewal applications by the staff. The minute of the Appointment Committee used the acronym 'T' to represent termination. Dr Drummond in his letter of appeal regarding the first renewal of contract also used the words 'contract termination'.
111. In his e-mail to his colleagues, Dr Drummond stated that he declined the temporary employment because of lack of medical benefits. In his letter of 9 July 1997 to the President, he stated that he voluntarily declined an offer for extension of his employment contract "because of the departmental discord with his personal principals and beliefs". Clearly, there were negotiations between Dr Kwaku and Dr Drummond on the temporary employment. Dr Drummond himself used the word 'negotiation'. He referred to the spirit of "any agreement". He made counter-offers to the conditions of service. But there was clearly never a concluded agreement on the terms of service. This being the case, I just cannot see how an offer of temporary employment could have been made to him.
112. On the issue of computers, Dr Drummond's letter of 22 July 1997 to Professor Ho and others clearly stated that "member within the department ... were told there were none available for purchase including myself" (emphasis added). These words clearly conveyed the impression that he was unable to purchase a computer himself. This is untrue. He admitted in the meeting of 29 May 1997 that he had bought a computer himself. Dr Drummond said that the computer was in fact bought by the research assistant. He signed the receipt for the computer and paid the purchase price by cheque on her behalf. 113. I do not accept Dr Drummond's evidence in this regard. Miss Betty Chan had clearly stated in her evidence that she specifically told Dr Drummond that the computer was meant for him and not his research assistant. Clearly, if Dr Drummond only paid the computer on behalf of Miss Seiki, then he would not have admitted that he bought a computer at the meeting of 29 May 1997. The reason why Dr Drummond's own computer was not sold back to him was because his old computer was used by another staff whose computer needed to be repaired. In order to save the trouble of the exchange, the computer that was subsequently repaired was sent to Dr Drummond for his purchase instead. Miss Seiki had given two statements on this topic. Hearsay notice was served on these statements. But as her evidence was not tested at the trial, I would not attach weight to them. The same approach applies to those witnesses whose evidence were given by hearsay notice.
114. I find that Dr Drummond did make malicious and unfounded allegations against Dr Kwaku. Apart from what I have already said, I will deal later with the issue of malice on the part of Dr Drummond. BRIBERY 115. In his Amended Statement of Claim, Dr Drummond further stated the Dr Kwaku had defamed him, when in late December 1996, he told Dr Anthony Ko and others involved in CityU's appointment process that Dr Drummond attempted to bribe him with gifts and dinner invitations. Dr Drummond further alleged that Dr Kwaku defamed him in the internal memorandum of 2 June 1997 when he repeated the publication on the bribery allegation by saying "Ammunition however does not include giving gifts and invitations to dinner to the HOD when your contract is up for renewal." 116. Dr Kwaku stated that in around November 1996, when the issue of contract renewal was discussed, Dr Drummond left a gift with a note in his office. He consulted Dr Anthony Ko who said that he should not open it until after the contract renewal process was over. Dr Kwaku agreed that it did not seem appropriate to open the gift and he did not. Afterwards when he opened the parcel, he found that it was a picture frame. He gave it to his secretary. 117. Dr Drummond stated that the gift he gave to Dr Kwaku was in December, it was a wedding gift. He produced his credit card statement to show his purchase of the gift in December. Dr Kwaku denied that he was given a gift by Dr Drummond in December, the gift he received was in November. 118. There was simply no evidence that Dr Kwaku told Dr Ko and others that Dr Drummond had attempted to bribe him with gifts. Dr Kwaku stated that he did not feel comfortable with the gift but he did not think of it as a bribe. Dr Ko who was subpoenaed to give evidence for Dr Drummond was not asked whether Dr Kwaku had told him about the bribery by Dr Drummond. He was not even asked whether Dr Kwaku had talked to him about the gift. He was asked very vaguely by Dr Drummond whether he had made some comments on bribery. This was denied by Dr Ko. The memorandum of 2 June 1997 bears no reference at all to Dr Drummond. In my view the cause of action based on the so-called bribery charge is bound to fail. SPECIAL DAMAGE 119. I have found that Dr Drummond's case against Dr Kwaku has failed. However, I would like to say a few words on the special damage that Dr Drummond seeks against Dr Kwaku. 120. Dr Drummond's case is that he had made numerous applications for teaching posts in universities in Hong Kong and elsewhere but was unsuccessful. Whilst he was in Hong Kong University, he made various applications for funding from Japanese institutions in Hong Kong. These funds would enable him to obtain an academic post in HKU. He was successful in obtaining some funds. However, on 17 June 1999, Professor Refsing informed him that her department would not proceed with the Research Associate Professor appointment for the moment as the university had asked the Police to investigate some suspicious documents. 121. Professor Refsing explained in evidence that her department had received an e-mail and a fax letter of appointment which was unsigned but with the name of a staff of her department on it appointing Dr Drummond to the job. However, the staff denied that she had in fact issued the letter. The matter was then referred to the Police who found that no criminal activity had taken place. In response to a letter written by the Acting Head of her department (Professor Refsing was on leave at the time), Dr Drummond wrote a five-page letter to the Acting Head. Professor Refsing was frightened by the aggressive tone of this letter. She said that her department was a harmonious one and her staff did not write in the style like Dr Drummond and she decided to stop the process of hiring Dr Drummond. She said that the two letters written by Dr Kwaku to her had no impact on her. She found the letters rather silly. When Dr Drummond offered to provide her with his response to these allegations, she told him that she was really not interested in the matter. 122. Professor Refsing was aware that Dr Drummond had lost his job in CityU and of the personal conflict between him and his former head of department. She was sympathetic and tried her best to help Dr Drummond with his difficult period. However, after she had seen what Dr Drummond had written to her department, she considered that she had given more sympathy to Dr Drummond's circumstances than what she might have given. 123. It is clear that Dr Drummond's dispute with Dr Kwaku had no impact on his employment prospect. On the contrary, it is clear from the episode at HKU that Dr Drummond is someone with fault in his character. He was the author of his own misfortunes. DR KWAKU'S CASE 124. Dr Kwaku is relying on the following letters written by Dr Drummond in support of his case for defamation :
125. Dr Kwaku submitted that there was a plan orchestrated by Dr Drummond and his acquaintances in order to discredit him and force him to resign. He also submitted that the attack on him was racially motivated. He is an African while Dr Drummond and his witnesses, namely Dr Snell, Dr Hempel, Dr Herndon and Dr Martinson are all Caucasians. When he was applying to be the Head of the department, the Caucasians staff of the department supported Dr Snell to run as the department head whereas he was supported by the staff of other nationalities. 126. Dr Kwaku may genuinely feel this is the case, but I do not find that Dr Drummond and his witnesses were motivated by racial prejudice in their dealings with Dr Kwaku. Dr Drummond clearly had sought assistance from his colleagues about how he should write to the authorities in CityU on matters relating to Dr Kwaku. But I do not find that there was an orchestrated plan by Dr Drummond and others. 127. Dr Kwaku also suggested that Dr Snell had deliberately trapped him in relation to the tabling of the paper on the future of the Japanese Studies Course and in his request for endorsement of Dr Drummond as an external investigator. He suggested that Dr Snell deliberately wished to table the paper in order for Dr Drummond to make a scene. Further, it was Dr Snell who told him that he would not like to continue to work with Dr Drummond. 128. Dr Snell is clearly an unsatisfactory witness. In his first statement to Dr Kwaku his comments on the behaviour of Dr Drummond were extremely harsh. In his statement of 24 December 1997, he stated this :
129. On the meeting of 29 May 1997, Dr Snell wrote this :
He obviously resented what Dr Drummond had done to him earlier in the February meeting. However, the comments I have set out did not appear in his later statements including that given to Dr Drummond. Looking at his later statements, it is plain that he had toned down his adverse comments on Dr Drummond. He said that the statements were all true. My observation is this : Does he expect the truth to be found in bits and pieces of the various statements he had made? However, it is not necessary for the purpose of this case to make any findings on the allegations raised by Dr Kwaku. I accept what Dr Kwaku said about the reason why he rejected Dr Drummond as an external investigator. It was not motivated by spite. Considering how Dr Drummond had behaved so far, such a decision was a reasonable one. It was one supported by CityU. WORDS DEFAMATORY 130. The allegations raised by Dr Drummond were on the mismanagement of Dr Kwaku, his unfair treatment of the staff of the department, he exploited them and inflicted duress on them, he had misled the authorities in CityU about Dr Drummond and he had served his own personal interest in donating computers to Ghana. These are clearly defamatory words. MOTIVE OF DR DRUMMOND
131. Dr Drummond relied on qualified privilege and justification in sending these letters. In the present case, even assuming there was an interest in Dr Drummond in sending the various letters and in the recipients in receiving them, it is clear that the dominant motive of Dr Drummond in sending these letters was to injure Dr Kwaku's reputation. Malice is clearly established. Usually a person would not tell others expressly what is his real motive in doing certain things. But the motive can be ascertained by his conduct, by what he had said and done. I am conscious of the effect of the outcome of this case on the personal and professional life of the parties. But I have to say that Dr Drummond was clearly motivated by personal grudge against Dr Kwaku. 132. On 3 November 1996, Dr Drummond sent a e-mail to some of his colleagues, complaining about the number of hours he was asked to teach. He also wrote the following :
133. Dr Drummond in fact was present at a departmental meeting held on 30 May 1996, in which Dr Kwaku informed the staff that "the 1996/97 BM budget was down by 5% by comparison with 1995/96 budget. 80 RU was loaned to IS". RU stands for Revenue Unit, each unit consisted of $10,000. According to Professor Ho, within the Faculty, the departments are sometimes required to lend to another department to cover the budget deficit. For Dr Drummond to raise this matter with the insinuation that Dr Kwaku did this for personal favours is a reflection on the state of mind of Dr Drummond. Obviously he harboured great resentment of Dr Kwaku.
134. It is clear that Dr Drummond blamed Dr Kwaku for not able to renew his contract with CityU. I find that Dr Kwaku had assisted him in his contract renewal. The decision reached by the Appointment Committee was based on the performance of Dr Drummond. There was a conflict of evidence as to the length of the contract Dr Drummond applied for in his second renewal application. According to Dr Kwaku and Dr Akhtar, it was agreed that the extension was for one year because at that time there was another staff who had research publications and he applied for a two year contract. Since Dr Drummond had no research publication in the journals recommended by CityU, he could not possibly be recommended for a two year contract as well. Dr Drummond, however, stated that the agreement was for a two-year extension. Dr Kwaku had changed his mind, after agreeing to a two year extension, by later recommending only a one year extension. Dr Drummond was of the view that an application for a one year extension in fact had no chance of success. I find both Dr Kwaku and Dr Akhtar to be truthful witnesses and the parties agreed on a one-year extension. In any event, I find that Dr Drummond was fully aware that the application was for a one year extension before it was lodged. 135. Dr Drummond is clearly someone who would not recognize his personal shortcomings when he was unable to renew his contract. On the first occasion, he laid the blame on his former Head of Department, Dr Yau. And, again, when he was unable to secure his second renewal, Dr Kwaku became the target of his discontent. He had in fact prepared a written submission dated 16 February 1996 intended for his appeal for the first non-renewal of contract. Dr Kwaku refused to include this submission in the appeal. What Dr Drummond wrote in the submission was revealing. In this, he described his loss of confidence with Dr Yau, saying that Dr Yau mismanaged his affairs and began to discriminate against him : "His behaviour seemed continuously shows a desire to marginalize my position in the Department and this has culminated in my employment termination." He referred to Dr Yau's "blatant mismanagement and discriminatory use of approval power". 136. Dr Drummond's outburst in the two public meetings in February and May 1997 against Dr Kwaku are clear indications of the resentment he harboured against Dr Kwaku. He clearly had mistakenly thought that Dr Kwaku did not assist him in his contract renewal. The resentment was made known in the meeting on 30 May 1997 when he refused to discuss further with Dr Kwaku. His resentment was compounded when Dr Kwaku refused to endorse him as an external investigator. On 22 July, he further repeated his resentment of Dr Kwaku to those who were present, including Dr Mondejar and Professor Taylor. 137. Repetition of allegations against Dr Kwaku in his series of letters clearly indicated that he was not interested in any rational discourse on the problems that he had encountered and problems concerning the management of the Management Department. Dr Drummond argued that at that time he had a dispute with Dr Kwaku and the letters that were sent had to be considered in that context. In my view, if Dr Drummond was genuinely concerned with how the Management Department was run, then the letters should be addressed to Dr Kwaku, who is its Head. To write such a series of letters without even sending a copy to the one mostly affected by them, smacks of a poison pen approach. 138. Dr Drummond's enthusiasm in teaching and his commitment to the Management Department cannot be disputed. But in my view, he was so consumed by the grievance of being wronged by Dr Kwaku that he lost all rational perspective when he began his attack on Dr Kwaku. The words he used in his letters and the approach he had adopted are the best illustrations of his motive. Another illustration is that on 9 July 1997, Dr Drummond e-mailed to Dr Kwaku demanding him to honour his promise to give a dinner in return for two tickets to a ball bought by Dr Drummond on Dr Kwaku behalf. He was also asked to return a book to Dr Drummond. The e-mail ended with this : "I would mention that non-fulfillment of your gentlemen's agreements will lead to further action." This e-mail was copied to the Management Department of CityU. It is totally out of proportion to dwell on such a trivial matter. Even Dr Hempel asked him not to pursue petty vengeance. His accusations of personal gains and mismanagement by Dr Kwaku were clearly maliciously made by him. 139. Dr Drummond is clearly not interested in finding out the truth. For example, after sending the e-mail in July 1997 to Dr Mondejar about the computers, he never tried to find out from Dr Mondejar whether the allegations he had raised were true or not. 140. Although Dr Drummond claimed that his aim was to bring transparency to the management of CityU and it was only on issues that he was involved with while he was a member of CityU, in my view, his real purpose was to pursue a personal vendetta against Dr Kwaku. Despite the findings by Professor Lam and Professor Ho, Dr Drummond pursued doggedly on his attack on Dr Kwaku. He was not interested in what Professor Cheng or Professor Ho might have said on the matters he had raised. Even after Professor Ho's reply of 25 September, which he said he only received in October 1997, he continued to write on the topic in October and November 1997. Professor Ho clearly came to the view that there was nothing improper in what had transpired so far. There is no evidence that Professor Ho made the findings in order to cover up the faults of Dr Kwaku, or that he had not made full enquiries on these issues. 3. Subsequent events after commencement of action
141. On 14 February 1998, an e-mail was sent to Dr Mondejar and Dr Akhtar which in fact repeated the content of the e-mail of 21 July 1997 to them on the issue of computer. Dr Drummond stated that he made a mistake in sending this e-mail and on the same day, within a matter of minutes, he immediately sent an e-mail to Dr Mondejar and Dr Akhtar stating that he had mistakenly sent the e-mail and he withdrew it and unreservedly apologized for any embarrassment caused to anyone by the accidental transmission. 142. It is difficult to accept that this is an accidental transmission because although part of the content of this e-mail was the same as the one dated 21 July 1997, this e-mail further stated this :
Dr Drummond had never explained how an accidental pressing of the computer would cause this e-mail to be sent out to Dr Mondejar again.
143. On 21 June 1998, Dr Drummond sent another e-mail to his colleagues in which he stated that :
Dr Drummond stated that the word 'tun' means 'tunnel', some letters of which had been omitted in the printing. Dr Kwaku suggested that this word means 'fun' and this showed the state of mind of Dr Drummond. It is not necessary for me to deal with this. There are clearly enough evidence to show the grudge of Dr Drummond against Dr Kwaku even without this. 144. Dr Drummond was unable to substantiate any of the allegations he had made against Dr Kwaku. In my view, when he made those allegations, he was reckless as to whether these allegations were true or not. His desire was to ventilate his dissatisfaction with Dr Kwaku and to injure his reputation. DR DRUMMOND'S WORDS NOT JUSTIFIED 145. Dr Drummond clearly is not able to justify the allegations he had made against Dr Kwaku. DR KWAKU PROVED HIS CASE 146. In my view Dr Kwaku has proved that Dr Drummond had defamed him. He was the Head of Department when these series of defamatory letters were written, they were addressed to his superiors and the staff in his department. Obviously he sustained great humiliation by these letters. He said these letters affected him in his application for a full professorship. In my view, in assessing damage, I should not take this into account. There may well be other reasons why such an appointment was not made. Bearing in mind the repeated allegations that had been made against Dr Kwaku, the appropriate damage in this case is in the sum of $200,000. APOLOGY 147. On 20 March 1998, Dr Drummond wrote to Dr Kwaku. He referred to the letters and e-mails sent by him on 18, 21, 22 and 23 July 1997. The letter stated that :
Similar letters were written by Dr Drummond to those members of the staff of the Management Department to whom he had sent letters and e-mails. 148. The purpose of an apology is to appease the injured feelings of the person defamed and to undo the harm done to his reputation in consequence of the publications. Its terms will depend upon the nature of the defamatory statement, but it should invariably include "a full and frank withdrawal of the charges or suggestions conveyed". Further, the apology would be unlikely to be regarded as adequate without some expression of regret that such charges or suggestions were ever published. A hypothetical apology, e.g. "if I say these words, I apologize", or "if these words can bear this meaning, then I will withdraw them", may be sufficient, provided that there is included an admission that the defamatory charge is untrue (Gatley, para.31.2). 149. The apology tendered by Dr Drummond did not include any admission that the defamatory charges were untrue. There was never any withdrawal of the defamatory charges. Dr Drummond's continued pursuit in this case on the defence of justification clearly renders the apology meaningless. The apology served no useful purpose by way of mitigation of damage. CONCLUSION 1. Dr Drummond's case is dismissed with costs nisi to Dr Kwaku. 2. There shall be judgment to Dr Kwaku for the sum of $200,000 with costs nisi on his action.
Representation: Dr Damon Drummond, appearing in person Dr Kwaku Atuahene-Gima, appearing in person Remarks: |