Jonathan Lu and Others v. Paul Chan Mo-po and Another

HCA 370/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 370 OF 2012

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.There are three summonses before the court: (1) the Defendants’ two summonses filed on 8 and 12 April 2013 respectively seeking to strike out certain paragraphs of the Plaintiffs’ witness statements relating to an anonymous email addressed to the Harvard University (“Harvard Email”); and (2) the Plaintiffs’ summons filed on 21 November 2013 seeking to amend their Amended Reply.  Mr Dawes, counsel for the Plaintiffs, argued that I should hear the Defendants’ strike out applications before Plaintiffs’ amendment application as the Defendants’ summonses are first in time.  While acceding to that request, it makes better sense to consider the Plaintiffs’ application first because whether to strike out the various parts of the Plaintiffs’ witness statements depends on whether, if at all and the extent to which, the Plaintiffs’ proposed amendment is allowed.  I shall consider the applications in this order.

The background

2.This is a defamation action which has been ordered to be tried by a judge with a jury and scheduled to commence on 4 September 2014 with 15 days reserved.

3.The 3^rd Plaintiff (“Carl”) is the father of the 1^st and 2^nd Plaintiffs, who are twin brother and sister (“Jonathan” and “Caitlin”, respectively).  At the material time, Jonathan and Caitlin were studying Year 13 at Chinese International School (“CIS”), an international school in Hong Kong, of which their father, a well known businessman, was a member of the board of governors (“Board of Governors”).  Jonathan was an exemplary student and the head boy in Year 13 who consistently achieved the highest academic standards throughout Year 7 to 13.  He spearheaded the school’s first academic honour code and was very active in student activities.  Caitlin was also an outstanding student.  She had received, for example, the Head of Year Commendation for Years 10 and 11, the Head’s Commendation, Biology Subject Prize and Math Studies Subject prize for Year 12.

4.The 1^st Defendant was, at the material time, a member of the Legislative Council of Hong Kong representing the Accountancy constituency.  He was later appointed the Secretary for Development.  The 2^nd Defendant is his wife who is a director in a human resources consultancy.  Their daughter studied in the same year as Jonathan and Caitlin in CIS.

5.In November 2011, rumours were circulating among students of CIS and their parents that Jonathan was suspected of having cheated in a test, but got away with it because his father was a member of the Board of Governors.  The rumours were, according to the Defendants, sparked off by complaints made by two classmates.

6.From 1 to 6 December 2011, the Defendants sent emails to Ken Pemberton, whom they mistakenly believed was the president of CIS’s parent-teacher association, his wife and seven other parents about the incident (the “1^st Offending Email”).  The Plaintiffs considered the content of that email defamatory of the 1^st to 3^rd Plaintiffs (the “1^st Offending Words”).

7.From 4 to 6 December 2011, the Defendants sent emails to some parents about another similar incident involving Jonathan and Caitlin a year ago (the “4^th Offending Document”), the content of which the Plaintiffs considered as defamatory of Jonathan and Caitlin (the “4^th Offending Words”).

8.In an email sent to two parents on 4 December 2011 (the “5^th Offending Document”), the Defendants published words which the Plaintiffs considered as defamatory of Jonathan (the “5^th Offending Words”).

9.In an email sent to another parent on 6 December 2011 (the “6^th Offending Document”), the Defendants published words which the Plaintiffs considered as defamatory of the 1^st to 3^rd Plaintiffs (the “6^th Offending Words”).

10.At a meeting on 8 December 2011 among the school management represented by its headmaster, Mr Ted Faunce, together with some staff members and parents of some of the students, including the 1^st and 2^nd Defendants, the 2^nd Defendant distributed a “Summary of main points for the Meeting with Ted Faunce and his staff” (the “Offending Note”).  The Plaintiffs considered the content of the Offending Note defamatory of the 1^st to 3^rd Plaintiffs (the “2^nd Offending Words”).

11.On 14 December 2011, an anonymous email purporting to be signed by “CIS Parents” was received by the admission office of Harvard University.  It contained statements that Jonathan “has recently been caught cheating in his Economics exam”, that it was a “repeated offence” and that he was not “expelled or severely reprimanded” because his father is “a member of CIS Board of Governors.”

12.On 15 December 2011, the headmaster wrote to three of the parents stating that the school management decided that there were no grounds for concluding that Jonathan had cheated.  A copy of that letter was forwarded to the 2^nd Defendant.

13.At the early hours of the following day, the Defendants sent an email attaching the Offending Note to the headmaster and copied to some of the parents (the “2^nd Offending Email”), which the Plaintiffs considered as defamatory of the 1^st to 3^rd Plaintiffs (the “3^rd Offending Words”).

14.On or about the same day, Jonathan was informed by the admission office of Harvard University that his application was deferred.  His application was subsequently rejected in April 2012.

15.The Plaintiff issued a writ of summons against the Defendants on 7 March 2012 and filed an Amended Statement of Claim on 12 October 2012, seeking compensatory, aggravated and exemplary damages.  The Defendants filed their Amended Defence on 2 November 2012 in which they deny attacking the reputation or integrity of the Plaintiffs by publishing the Offending emails and deny that the publications were designed to inflict damage on the Plaintiffs.  They accept the Offending Words are untrue.  In essence, their defence is qualified privilege.  The Plaintiffs then filed their Amended Reply on 22 November 2012 alleging, inter alia, that the Defendants were reckless and malicious in publishing the Offending Words.

16.On 8 and 12 April 2013, the Defendants took out two summonses seeking an order that various parts of the Plaintiffs’ witness statements relating to the Harvard Email be expunged or struck out on the ground that they are irrelevant to the issues raised on the pleadings.  At the hearing on 29 May 2013, Poon J indicated that it was not possible to deal with the Defendants’ applications as the Plaintiffs had failed to plead the relevant issue and he asked the Plaintiffs to formulate proper amendments before the issue can be decided.  Hence, the Plaintiffs applied by summons dated 13 June 2013 to re-amend their Amended Reply by introducing issues relating to the Harvard Email and malice.  Then on 21 November 2013, the Plaintiffs took out the present summons seeking to withdraw their earlier summons and to introduce a new Re-Amended Reply.

THE PLAINTIFFS’ SUMMONS TO AMEND THE AMENDED REPLY

17.The Plaintiffs sought to introduce a new sub-paragraph (5A) to paragraph 4 of their Amended Reply pleading the Harvard Email and particulars of the Defendants’ malice. The purposes of the proposed amendment are twofold: (1) to introduce the Harvard Email for the purpose of supporting the Plaintiffs’ claim for additional compensatory, aggravated or exemplary damages arising out of the republication of the Offending Words in the Harvard Email; and (2) to plead particulars of malice for the purpose of defeating the Defendants’ defence of qualified privilege.

The amendment relating to the Harvard Email

18.In proposed sub-paragraph (5A)(a) to (5A)(d), the Plaintiffs plead Jonathan’s ambition to study in Harvard University; that the Harvard Email containing strikingly similar offending words was received by the admission office of Harvard University on 14 December 2011; and that Jonathan’s application to Harvard University was deferred and then rejected in early April 2012.  These facts are largely incontrovertible or not disputed. Then, in proposed sub-paragraph (5A)(g), the Plaintiffs claim damages or increased damages as a result of the repetition of the defamatory materials in the Harvard Email.

The applicable legal principles

19.In a claim for damages arising out of an alleged repetition or republication of a libel, the law is that a claimant may: (i) sue a defendant for both the original publication and for the republication as two separate causes of action; or (ii) sue a defendant in respect of the original publication only, and then seek to recover as a consequence of the original publication the damage which he suffered by reason of its repetition. In the present case, the Plaintiffs are proceeding under the second option. 

20.There are no specific or special rules regarding republication which are peculiar to defamation.  All issues fall to be decided in accordance with the normal principles in tort, including the rules governing novus actus interveniens.  If a claimant is seeking damages for repetition by others of the defamatory statement originally published by the defendant, he has to establish a causative link between the tort, ie the making of the original defamatory statement, and the damage arising from its republication.  He must therefore prove that such repetition was intended or authorised by the defendant; or was the foreseeable, or natural and probable consequence of the original defamatory statement[1].  The starting point in such an analysis is that the defendant is prima facie not liable for the damage caused by republication[2], because it is incumbent on the claimant to show that there is an adequate causative link between the tort and the damage.  The maker of a defamatory statement will be liable for its republication by another person, if he is vicariously liable for the act of that person under the principles of master and servant or agency or if he has authorised the republication.  In addition, he will be liable for the voluntary republication by a third party, if he intends that what he says or does will be republished; or if he is aware that what he says or does is likely to be reported; or if a reasonable person in his position should have appreciated that there is a significant risk of such reporting or repetition in whole or in part and that the republication would increase the damage caused by what he said[3]. These are questions of causation and remoteness which are questions of fact for the jury.

21.Such proof may be by way of direct evidence or by inference.  Mr Whitehead, counsel for the Plaintiffs, referred me to the following dicta of Bingham LJ in  Slipper v BBC[4]:

“ the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.”

I agree entirely with the realism expressed by Bingham LJ.  However, it does not mean that the causative link between the original defamatory statement and the damage caused by its republication is to be readily presumed.  Indeed, immediately following the above quoted passage, Bingham LJ said:

“ Usually, in fairness to a defendant, such effects must be discounted or ignored for lack of proof. But here, where the further publications (although not republications) are provable and are said to have been foreseeable, natural, provable and perhaps even intentional results of the publication sued upon, I see no reason in logic or policy why those effects need be ignored if the factual premises can be established.”

Thus, as acknowledged by Bingham LJ and consistent with the proposition I posed above, the burden rests with the plaintiff to prove a causative link between the original publication and the damage caused by the republication; and the general rule is that in the absence of proof, such causative effect should be discounted but the inference of a causative link may be readily drawn in an appropriate factual situation.  In Slipper v BCC, such inference was drawn because the further publications through the press review of a film containing a defamatory sting were provable and were said to have been foreseeable, natural, provable and intentional results of the defamation.

Discussion

22.Mr Dawes argued that in the present case there is not an iota of evidence linking the Defendants to the Harvard Email.  In their witness statements, Carl and Jonathan said that they did not know the identity of the author or sender of the Harvard Email and did not know if the Defendants were involved or took part in composing or sending the Harvard Email.  The highest they put their case is that the Defendants played a significant or even pro-active part in creating the misinformation, exaggerated rumours and gave fuel to the flames of hatred and vindictiveness, which prompted the authors to write and send the Harvard Email to damage or destroy Jonathan’s academic career.  He submitted that such a surmise is insufficient to establish the causative link. 

23.On the other hand, Mr Whitehead submitted that the Harvard Email contains defamatory materials which are substantially the same or strikingly similar to the Offending Words written by the Defendants and was published during the currency of and/or contemporaneously with the Defendants’ attack upon the reputations of the Plaintiffs through the publication of the Offending Words.  As in Slipper v BBC, these circumstances are sufficient to raise the inference of the existence of a causative link between the publication of the Offending Words, the Harvard Email and the damage arising therefrom.  This may not be a particularly strong inference because, even according to Jonathan, well before the publication of the Offending Words, rumours that he cheated in a test and got away because of his father had been circulating.  The Harvard Email could well have been a parallel publication independent of the Defendants’ Offending Words.  However, what inference to draw is a matter for the jury.

24.Next, Mr Dawes argued that there is no foundation for any suggestion that by sending the emails to the parents and the headmaster of CIS, the Defendants or a reasonable person in their position would or should have foreseen or contemplated that someone would send an anonymous email to Harvard University repeating the Offending Words. That, too, is a question for the jury.

25.Lastly, causation is not a pure question of fact, but includes an element of value judgment.  The court has to decide whether, on the facts before it, it is just to hold the defendants responsible for the loss in question[5]. On the relevant and incontrovertible facts of this case, I think it is strongly arguable that so long as the causative link is established, it would be just to hold the Defendants responsible for the loss as a result of the republication.

26.Both causation and remoteness are questions of fact for the jury.  On the evidence, I cannot properly hold that the Plaintiffs must fail in proving causation or showing the damages to be other than too remote.  The amendment in proposed sub-sub-paragraphs (5A)(a) to (d) and (g) of paragraph 4 must in all fairness be allowed.

The amendment relating to the plea of malice

27.In paragraph 4 of the Amended Reply, the Plaintiff averred that in publishing the Offending Words the Defendants were actuated by malice, but no particulars of malice were pleaded.  These particulars are now pleaded in sub-paragraph (5A)(e) and (f) of paragraph 4.  It is not the Plaintiffs’ case that they have direct evidence of the Defendants’ malice or knowledge of and participation in the publication of the Harvard Email.  In his witness statement, Jonathan unequivocally said he did not know if the Defendants were involved or took part in composing or sending the Harvard Email.  It was only his belief that the Defendants’ misinformation, exaggerated rumours and the general atmosphere of hate which prompted the authors of the Harvard Email to send that email.  Carl, too, said he did not know the identity of the sender or if the Defendants were complicit in writing or sending the email.  Their case of the Defendants’ malice or knowledge of and participation in the publication of the Harvard Email on which the inference of malice is drawn is based on inference.  Mr Whitehead did not shy away from the fact that the Plaintiffs do not have direct evidence of the Defendants’ knowledge of and participation in the publication of the Harvard Email and that the Plaintiffs’ case on malice is built entirely on inference. 

The applicable legal principles

28.Mr Dawes argued that on the basis of the proposed amendment it is impossible to draw any inference of malice.  However, Mr Whitehead reiterated that what inference to be drawn is a matter for the jury.  In general, consistent with the underlying objectives of the Rules of the High Court, amendments which are necessary for securing the just resolution of disputes in accordance with the substantive rights of the parties should be allowed.  The legal issue raised by the proposed amendment is how a judge should approach a plea of malice based on inference in a case of defamation tried by a jury.  The judge’s approach to such a plea in a case of libel and malicious falsehood tried by a jury was considered by Eady J of Dorset Flint & Stone Blocks Ltd & Others v Moir & Others[6], referred to me by Mr Dawes.  Paragraphs 48 to 50 of that judgment are pertinent:

“ 48. … Whether the claim is founded in defamation or malicious falsehood, an essential ingredient would be for the claimants to establish malice as defined by Lord Diplock in Horrocks v Lowe [1975] AC 135. That is to say, they will have show that Dr Moir and/or any other defendant knew what he was saying to be false, or that he was genuinely indifferent as to whether it was true or false. That is already alleged in support of the plea of malicious falsehood. It is a serious allegation to make against anyone, and it is necessary to scrutinise the plea to see whether it complies with the minimum standards laid down in such cases as Somerville v Hawkins (1851) 10 CB 583, Turner v MGM Pictures [1950] 1 All ER 449, Telnikoff v Matusevitch [1991] 1 QB 102 and Alexander v The Arts Council of Wales [2001] 1 WLR 1840. If not, it would be my duty to strike out the plea of malice and ensure that the defendants are no longer vexed with having to meet it.

49. Allegations of malice, like allegations of fraud, need to be scrutinised with particular care to ensure that there is a sufficient evidential basis for alleging dishonesty or inviting such an inference. Such allegations should not be made formulaically by way of bare assertion or used as a tactical weapon to try to bludgeon people into submission or compromise. It is no good merely to say “I have put a plea of malice on the record and it is up to the jury to decide”. There must be facts alleged which, if true, are more consistent with the presence of malice than with its absence.”

The learned judge then went on in paragraph 50 and adopted the test as to sufficiency of the evidence in Telnikoff.  He said at paragraph 50:  

“ 50. … reference was made to the convenient summary of principles in Telnikoff at page 120:

“The point is quite simple. If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge would be bound so to direct the jury. If there are no pieces of evidence which are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury.” ”

29.I am in total agreement with the legal principles expressed by Eady J.  While finding of fact and what inferences to be drawn are matters for the jury, insofar as allegation of malice is concerned, it is not enough to merely put in a plea of malice and leave it to be decided by the jury.   Malice is a serious allegation to make against anyone.  Such a plea must be scrutinised with particular care to see whether it complies with the minimum standards laid down in such cases as Somerville v Hawkins (1851) 10 CB 583, Turner v MGM Pictures [1950] 1 All ER 449, Telnikoff v Matusevitch [1911] 1 QB 102 and Alexander v The Arts Council of Wales [2001] 1 WLR 1840.  Likewise, allegation of malice must also be carefully scrutinised to ensure that there is sufficient evidential basis for making the allegation, or in a case built on inference, sufficient evidential basis on which such inference could be drawn.  If there is not, it shall be the court’s duty to strike out the plea.  The test is whether the facts alleged are more consistent with the presence of malice than with its absence. Also, allegations of malice should not be made formulaically by way of bare assertion.  The court should be wary of the risk of such allegations being used as a tactical weapon to try to bludgeon people into submission or compromise.  

30.Mr Whitehead argued that Dorset Flint & Stone Blocks Ltd was a case of striking out of a claim for damages for libel and malicious falsehood which has no bearing on a case of amendment of pleading in a defamation action.  In that case, the defence was fair comment.  The issue was whether the defence could be defeated by showing that the comment was not made honestly.  The legal principles governing malice in malicious falsehood and those governing malice in defamation are the same.  Furthermore, the fact that Dorset Flint & Stone Blocks Ltd was a case of striking out and not amendment of pleading is a distinction without difference because, as in the case of striking out a pleading, a proposed amendment will not be allowed if the new claim based on the amendment is bound to fail.  In an application to strike out a pleading or to amend a pleading, the court’s approach to malice and the test for sufficiency of evidence is the same.  With these principles in mind, I now proceed to examine the allegation of malice contained in the proposed amendment in sub-sub-paragraphs (e) and (f) of paragraph 4(5A).

Discussion

31.The Plaintiffs’ primary case of malice as pleaded in sub-sub-paragraph (e) is:

“(e) The Plaintiffs will ask the Court to find or infer that the 1^st and/or 2^nd Defendants’ action in publishing the 2^nd Offending Words and 3^rd Offending Words on 16^th December 2011 were particularly malicious in that the same were published in the knowledge that the Harvard Email had been sent.”

The question raised by this proposed amendment is whether, assuming that the Defendants had knowledge that the Harvard Email had been sent when they published the 2^nd and 3^rd Offending Words, they did so with malice.  

32.It is immediately apparent that the allegation in respect of the 2^nd Offending Words cannot stand as those words were published on 8 December 2011, well before the issue of the Harvard Email and could not therefore have been published in the knowledge that the Harvard Email had been sent. 

33.Next, assuming that the Defendants had knowledge that the Harvard Email had been sent at the time they published the 3^rd Offending Words on 16 December 2011, it is impossible, in my view, to raise the inference that they did so with malice.  Since 1 December 2011, the Defendants had been pursuing a course of conduct of urging CIS to investigate into the rumours or, in the words of the Plaintiffs, attacking the Plaintiffs’ reputation.  The publication on 16 December 2011 was just part and parcel of that course of conduct which had commenced sixteen days ago, when there was no issue of malice.  Under such circumstances, it is difficult to see how, if in the course of pursuing that course of conduct the Defendants came to know about the issue of the Harvard Email, they would be acting maliciously by continuing with that course of conduct in publishing the 3^rd Offending Words on 16 December 2011.  It is even more difficult to understand, if the Defendants were not acting with malice before they had knowledge of the Harvard Email, how malice could be related back to the publication of the other Offending Words, including the 2^nd Offending Words, merely because someone, to their knowledge, subsequently issued the Harvard Email.  Applying the test in Telnikoff v Matusevitch, even assuming that the Defendants had knowledge of the issue of the Harvard Email when they published the 3^rd Offending Words, the evidence, at the highest, is equally consistent with malice as with its absence.  It is insufficient.

34.In sub-sub-paragraph (f), the Plaintiffs plead a further and alternative case as follows:

“(f) Further or alternatively, the 1^st and/or 2^nd Defendants at all material times knew of the planning and/or composition and/or sending of the Harvard Email and wording therein, and thereby consented to and/or concurred in and/or were complicit in and/or acquiesced in or caused the publication of the same, and have thus acted with malice.

Particulars of knowledge

Subject to further discovery the 1^st and/or 2^nd Defendants [Plaintiffs?] said knowledge is to be found or inferred from the following:-

(1) The Harvard Email contains defamatory materials which were substantially the same or strikingly similar to the materials contained in the said Offending Words written by the 1^st and/or 2^nd Defendants.

(2) The Harvard Email was published during the currency of, and/or contemporaneously with the 1^st and/or 2^nd Defendants’ attack upon the reputations of the Plaintiffs through the publication of the Offending Words, the 1^st Offending Email being published from 1^st – 6^th of December 2011, the Offending Note on 8^th December 2011, the Harvard Email on 14^th December 2011 and the 2^nd Offending Email on 16^th December 2011.

(3) The 1^st and/or 2^nd Defendants’ own words/publication shortly before the publication of the Harvard Email anticipated the repetition of the defamation found in the Harvard Email when the 1^st and/or 2^nd Defendants stated in the Offending Note of 8^th December 2011

“It is bound to become huge rumours and they can really spread fast and wide.” …..

(4) At all material times between 1^st December and 16^th December 2011, and including the time at which the Harvard Email was published on 14^th December, the 1^st and/or  2^nd Defendants were the persons primarily proactive in organizing and leading the attack upon the Plaintiffs’ reputations.” 

These allegations go much further than the one in sub-sub-paragraph (e).  Short of alleging that the Defendants were the actual authors of the Harvard Email, the Plaintiffs propose to ask the court, first, to draw from certain basic facts pleaded therein that the Defendants had knowledge of the planning, composition, sending and wording of the Harvard Email (“knowledge”); and second, to infer from that inferred knowledge their consent to and/or concurrence in and/or their complacency in and/or acquiescence in or their causing the publication (“participation”) of the Harvard Email.  Then, thirdly, they ask the court to further infer malice on the part of the Defendants from that inferred knowledge and participation.  In effect, they are seeking to invite the court to undertake a three stage mental process and malice is the product of a tertiary inference from that three stage process.  It is of course open to the Plaintiffs to plead such knowledge, participation and malice on the part of the Defendants as a fact.  Whether they can prove the basic facts and raise the inference is a matter of evidence at trial.  I shall apply the principle in Dorset Flint & Stone Blocks Ltd when examining the basic facts to see whether they are capable of supporting such inference of the Defendants’ knowledge, participation and malice. 

35.First, the Plaintiffs rely on the similarity in the defamatory materials contained in the Harvard Email as compared with those in the Offending Words.  They argued that it is clear that the Harvard Email and Offending Words are intimately connected and inextricably linked.  These documents were certainly related in time in that they were all issued shortly after the breakout of the rumours.  The Harvard Email was issued amidst the series of emails issued by the Defendants. The incident referred to in these emails and the Harvard Email is the same and very narrow one.  If the focal point in all these emails is that the head boy was caught cheating in his examination but got away because his father is a member of the board of governors of the school, in how many different ways and in what other different words can one describe the incident, one may rhetorically ask? 

36.Furthermore, in considering the inference to be drawn from the similarity between the defamatory materials contained in the Harvard Email and those in the Offending Words, one must not lose sight of the factual matrix at the time.  According to Jonathan’s witness statement, the rumours of his cheating in examination were circulating as early as 25 November 2011.  CIS was making enquiries into the incident and interviewing the four reporting students.  At the same time, rumours were spreading.  It was under that atmosphere that the series of emails were issued by the Defendants and the Harvard Email was issued amidst that series of emails.  In the circumstances, it could fairly be said that the defamatory materials in the Harvard Email could have originated from the rumours already circulating or from the Offending Words.  In the light of the above incontrovertible factual matrix, the striking similarity between the defamatory materials in the Harvard Email and the Offending Words could assume little significance insofar as the Defendants’ knowledge of and participation in the publication of the Harvard Email is concerned.  The similarity raises an equally consistent if not stronger inference that there is a very real possibility that the Harvard Email could have been a parallel publication derived from the same source, ie the rumours which were then circulating.  The inference of the Defendants’ knowledge of and participation in the Harvard Email to be raised from this similarity could not be the only inference and, if raised, could by no means be compelling.

37.Second, the Plaintiffs rely on the fact that the Harvard Email was published during the currency of and/or contemporaneously with the Defendants’ attack upon their reputation through their Offending Words. Simply put, the Plaintiffs were saying that because the Defendants published the Offending Words, they must have knowledge of or participation in the publication of the Harvard Email which contained strikingly similar defamatory materials as those in the Offending Words.  For the same reasons as above, I am quite unable to see the nexus between the Defendants’ knowledge of and participation in the publication of the Harvard Email on the one hand, and the timing of the Defendants’ emails, their role in pursuing their complaint to CIS and the similarity between the Harvard Email and the Offending Words on the other.  In the light of the factual matrix, such inference could hardly be raised at all.

38.Third, Mr Whitehead referred to the Defendants’ Offending Note published on 8 December 2011 shortly before the publication of the Harvard Email, in which the Defendants wrote that the incident “is bound to become huge rumours and they can really spread fast and wide”.  Based on that Offending Note, Mr Whitehead argued that the Defendants anticipated the repetition of the defamation found in the Harvard Email and must therefore have knowledge of and participation in the publication of the Harvard Email.  The subject matter of the rumours was, by its very nature, one which was bound to attract interest and attention in the school.   Given the atmosphere at the time and the enquiries made by CIS, any reasonable person would anticipate that the incident would become huge rumours and could spread fast and wide.  Indeed, even according to the Plaintiffs, the rumours had been circulating before 8 December 2011.  It is absurd to argue that by pointing out the obvious, the Defendants are to be fixed with knowledge of the planning, composition, sending of the Harvard Email and the wording therein and thereby deemed to have given their consent to and/or concurrence in and/or their complacency in and/or acquiescence in the publication of the Harvard Email or caused its publication.  The suggestion of the Plaintiffs is just too far-fetched.

39.Fourth, the Plaintiffs argued that as the Defendants were the persons primarily pro-active in organizing and leading the attack upon the Plaintiffs’ reputation between 1 and 16 December 2011 during which the Harvard Email was sent, they must have knowledge of and participation in the publication of the Harvard Email.  For the same reason as above, this inference is highly speculative and could hardly be raised at all.

40.Apart from the four allegations pleaded in the proposed amendment, Mr Whitehead also relied on other allegations of fact contained in the witness statements.  He referred to another email sent by one of the parents on 27 December 2011 to the 2^nd Defendant and others in which she referred to “an anonymous and malicious letter to an university about an applicant”, which is also referable to the Harvard Email.  The genesis of that email was that that parent was informed of the Harvard Email by the headmaster and then she mentioned that to the 2^nd Defendant.  That email was issued after the 1^st and 2^nd Offending Emails.  Given the timing and the factual matrix, it is impossible to draw any inference of knowledge of or participation in the Harvard Email on the part of the Defendants.

41.Even if all the particulars of facts are taken together, the inference that the Defendants had knowledge of the Harvard Email is so tenuous and speculative and is not the only inference that could be drawn.  The further inference of the Defendants’ participation in the publication of the Harvard Email from that inferred knowledge is another step further remote.  As the inference of knowledge and participation is not the only inference that could be drawn, the tertiary inference which the Plaintiffs seek to raise from the inferred knowledge and participation on the part of the Defendants could only be consistent with malice as with the absence of malice. The evidence cannot survive the test in Telnikoff v Matusevitch.  It must necessarily follow that the Plaintiffs have no factual basis on which to further infer malice on the part of the Defendants.  I therefore refuse the amendment in sub-sub-paragraph (f).

42.I should add the following observation.  In paragraph 23, I found that the similarity between the defamatory materials in the Harvard Email and the Offending Words, the contemporaneity in the issue of the Harvard Email and the Offending Emails, and the pro-active role played by the Defendants in attacking the Plaintiffs’ reputation etc are sufficient to raise the inference of the existence of a causative link between the publication of the Offending Words and the Harvard Email and the damage arising thereform.  That inference is wholly different and distinct from and has no bearing whatever on the inference of the Defendants’ knowledge of and participation in the publication of the Harvard Email considered under this subsection.  The mental processes invoked in drawing the two inferences are wholly different.

The Plaintiff’s summons - conclusion

43.As stated above, the Plaintiffs’ application to amend their Amended Reply by introducing a plea relating to the Harvard Email in sub-paragraph (5A)(a) to (d) and (g) of paragraph 4 ought fairly be allowed.  It would have been more appropriate for the amendment to be made to the Amended Statement of Claim so that the Defendants can plead to and deny. However, as those allegations are not in dispute, the departure is of no consequence.  I allow the amendment.

44.As for the proposed amendment relating to malice, even assuming that the Defendants had knowledge that the Harvard Email had been sent at the time they published the 3^rd Offending Words on 16  December 2011 as pleaded in sub-paragraph (5A)(e) of the proposed Re-Amended Reply, it would be impossible for the jury to infer that they did so with malice.  The inference of the Defendants’ knowledge of and participation in the publication of the Harvard Email which the Plaintiffs seek to draw on the basis of the basic facts pleaded in sub-paragraph (5A)(f) is so tenuous and speculative and is not the only inference that could be drawn.  Such an inference could not provide the evidential basis on which to further draw the inference of malice on the part of the Defendants.  The Plaintiffs’ case based on the proposed amendments in sub-paragraph (5A)(e) and (f) of paragraph 4 is bound to fail.  The proposed amendment could not be allowed.  

45.Accordingly, the Plaintiffs’ summons to amend their Amended Reply is allowed only to the extent of adding sub-paragraph (5A)(a) to (d) and (g) to paragraph 4.  Though the Defendants failed in contesting the Plaintiffs’ application, the Plaintiffs are only partly successful and their application is only granted by way of indulgence, I therefore make a costs order nisi that the Plaintiffs shall pay the Defendants’ costs of this application with certificate for counsel.

THE DEFENDANTS’ SUMMONSES TO STRIKE OUT PARTS OF THE PLAINTIFFS’ WITNESS STATEMENTS

46.Having allowed the Plaintiffs’ application to amend their Amended Reply to include a claim for damages arising from the republication of the defamatory materials through the Harvard Email, the paragraphs in the witness statements which the Defendants sought to strike out become relevant and should not be struck out.  Accordingly, the Defendants’ summonses are dismissed.  As the dismissal is the result of the Plaintiffs’ late application to amend their Amended Reply, I make a costs order nisi that there be no order as to costs of this application. 

Mr Robert Whitehead SC and Mr Lawrence Ng, instructed by Norton Rose Fulbright Hong Kong, for the 1^st, 2^nd and 3^rd Plaintiffs

Mr Victor Dawes, instructed by Deacons, for the 1^st and 2^nd Defendants