Ho Tsui Chun v. Attorney General

HCMP000862/1980

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Coram: Bewley, J. in Chambers

Date of Judgment: 28th November, 1980

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JUDGMENT

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1. The plaintiff is the principal of the Tsung Tsin English College, Kowloon. Between December, 1978 and September, 1979, the Education Department received 6 anonymous letters and one anonymous telephone call, all complaining about the manner in which the plaintiff carried out her duties as principal.

2. The allegations ranged from partiality and inefficiency to corruption. An investigation was made in each case by officers of the department. The plaintiff was interviewed by 4 officers during the period in question. Their conclusion was that the complaints were totally groundless and unjustified.

3. The plaintiff now wishes to bring an action for libel against the writer of the anonymous letters. In this originating summons she asks for an order that the defendant:-

4. In her supporting affidavit the plaintiff states that, if she were allowed access to certain school circulars, which were submitted to the department in support of the anonymous letters, she would be able to identify the culprit.After the complaints began, the plaintiff adopted the practice of marking the circulars issued to each teacher with dots placed in different places, in order to enable her subsequently to identify the recipients.

5. During the investigation the plaintiff was shown, briefly, the letters in question. The handwriting in some of these letters was recognizable and she now wishes to examine these letters more thoroughly.

6. Mr. Chan for the plaintiff relies upon the House of Lords case Norwich Pharmacal Co. & others v. Commissioners Customs and Excise⁽¹⁾. In that case the appellants were the owners and licensees of a patent covering a chemical compound known as 'furazolidone'. Information published by the respondents showed that some 30 consignments of furazolidone had been imported into the United Kingdom between 1960 and 1970. None of those importations had been licensed by the appellants. Each of the consignments therefore involved a tortious infringement of the appellants' patent. The appellants tried to discovered the identity of the importers in order to bring legal proceedings against them but were unable to do so. When the goods were imported the respondents, in the exercise of their statutory duty, had obtained information relating to the goods including the names of the importers. On importation the goods came under the control of the respondents who directed the goods to be held in transit sheds until, the necessary formalities having been completed and the customs duties paid, they were released to the consignees. The appellants asked the respondents to supply them with the names of the importers of furazolidone but the respondents replied that they had no authority to do so. The appellants then brought an action against the respondents claiming, inter alia, an order for discovery of the names of the importers. Graham J. granted the order sought, but the Court of Appeal reversed his decision holding that since the appellants had no cause of action against the respondents they could not obtain an order for discovery against them. On appeal, it was held that although as a general rule no independent action for discovery would lie against a person against whom no reasonable cause of action could be alleged, or who was in the position of a mere witness in the strict sense, the rule did not apply where (a) without discovery of the information in the possession of the person against whom discovery was sought no action could be begun against the wrongdoer, and (b) the person against whom discovery was sought had himself, albeit through no fault of his own, been involved in the wrongful acts of another so as to facilitate the wrongdoing. In such circumstances, although he might have incurred no personal liability, he was under a duty to assist the person who had been wronged by giving him full information and disclosing the identity of the wrongdoer. In the performance of their statutory duties the respondents had been sufficiently involved in the importation of furazolidone in breach of the appellants' patent as to impose on them, subject to considerations of public policy, a duty to disclose the identity of the importers so that the appellants could commence proceedings against them. Their lordships also considered the public interest in confidentiality, but decided that it was outweighed by the interests of justice in disclosure of the names.

7. Counsel for the defendant takes no point as to confidentiality, but submits that, while he is content to leave the matter to the Court, the principle laid down in the Norwich Pharmacal case should not be extended. In my judgment, by granting this application and ordering discovery, no extension is involved.

8. Mr. Graham argued that no clear-cut wrong is revealed by the affidavit. It is true that the defence of privilege may exist by virtue of the duty of the Education Department to enquire into complaints made by a person with a common interest. If the complaints were made maliciously, however, privilege is lost. Mr. Graham says there is no evidence of malice. Having regard to the nature and frequency of the letters, I would be reluctant to go so far. This is essentially a matter for the trial court.

9. It is also submitted that the allegations do not amount to defamation in the absence of evidence of motive. I do not agree. They are prima facie defamatory and that is sufficient for the purpose of these proceedings. Counsel also takes the point that, if the plaintiff was able to recognize the handwriting in the letters, there is no need for discovery. I think this is a genuine slip by the deponent or her legal advisers. In the context it seems clear that the word 'familiar' should have been used instead of 'recognizable'.

10. It seems to me that the real question is whether the Education Department was sufficiently involved in publication of the defamatory matter. In the case cited above Lord Reid said at page 948: "........... if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers."

11. Lord Morris of Borth-y-gest put it this way: "It is not suggested that in ordinary circumstances a court would require someone to impart to another some information which he may happen to have and which the latter would wish to have for the purpose of bringing some proceedings. At the very least the person possessing the information would have to have become actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information."

12. Defence counsel, however, points to another passage in Lord Reid's speech, which, he contends, is against the plaintiff. His Lordship said at page 948: "A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find or sue the wrongdoer. Neither authority, principle, nor public policy would justify that."

13. Had the recipient in the Education Department filed the letters and taken no further action, it would have fallen into the category of a 'mere witness', described above, and the plaintiff would have been debarred from relief. Lord Dilhorne said at page 960: ".......... discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it. ........... Someone involved in the transaction is not a mere witness. If he could be sued, even though there be no intention of suing him, he is not a mere witness. ......... it matters not that the involvement or participation was innocent and in ignorance of the wrongdoing."

14. In the present case the Education Department was involved in the performance of its duty to investigate complaints against school staff. The libels were published to at least 4 members of the department. This is a sufficient involvement in the tort to enable the plaintiff to succeed in these proceedings. There will be an order in terms of the summons, but the costs will be borne by the plaintiff.

Representation:

Warren Chan (Johnson, Stokes & Master) for plaintiff

Peter Graham (Legal Department) for defendant

(1) (1933) 2 A.E.R. 943.