Read the full judgment text of FAMV 000026/2001 on BabelCite. This FAMV judgment was delivered on 20 March 2002 before Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ.
Civil procedure – leave to appeal – libel – fair comment – malice – evidential threshold – freedom of speech – press freedom – Cheng & Another v Tse Wai Chun – jury direction – retrial – The defendants sought leave to appeal from the Court of Appeal's order for a retrial on fair comment and damages in a libel action. The Court of Final Appeal granted leave on two issues: the correct approach to the sufficiency of evidence for leaving malice to the jury, and whether the evidence was sufficient to leave malice to the jury. The court held that the evidential threshold issue was of great general or public importance due to its impact on freedom of speech and press, and inconsistency in common law jurisdictions. The court also considered potential injustice if the retrial allowed the plaintiff to recast his case on fair comment. Costs of the application were ordered to be in the appeal.
Legal issues: Evidential threshold for leaving malice to jury · Sufficiency of evidence for malice
Outcome: Leave to appeal granted to the defendants on both issues: (i) the correct approach to the sufficiency of evidence for leaving the issue of malice to the jury; and (ii) whether on the evidence adduced the issue was one which ought to have been left to the jury.