Read the full judgment text of CACV 000170/1998 on BabelCite. This Court of Appeal judgment was delivered on 2 February 2000 before Chan CJHC, Leong JA, Wong JA.
Defamation – fair comment – malice – whether the test for malice in fair comment is the same as in qualified privilege – public affairs commentators' phone-in programme – plaintiff solicitor alleged to have acted unprofessionally and in conflict of interest by advising Mr Au not to claim compensation from Select Tours – defence of fair comment defeated by malice – jury verdict against 1st and 3rd defendants but not 2nd defendant – trial judge's directions on malice and motive – whether misdirection – whether the test for malice in the context of fair comment differs from that in qualified privilege – Court of Appeal holds that the test is the same in both contexts – rationale being that both defences protect genuine exercise of freedom of speech and are lost when abused for an improper purpose – supported by Thomas v Bradbury, Agnew [1906] 2 KB 627 and Gatley on Libel and Slander 9th ed – honest belief is a necessary but not sufficient condition – court adapts principles in Horrocks v Lowe [1975] AC 135 to fair comment – the improper motive must be the dominant motive – Turner v MGM Ltd, Silkin v Beaverbrook, Slim v Daily Telegraph, Cherneskey v Armadale Publishers and Telnikoff v Matusevitch did not decide honesty was the sole test – summing up held to be clear and logical – judge repeatedly directed on honest belief and dominant motive (12 times) – handout page on malice was only an aide memoire and not a statute – Halpin v Oxford Brooks University distinguishable – Ground 6: failure to direct on plaintiff's alleged indirect 10% shareholding in Select Tours immaterial because the conflict-of-interest allegation was already before the jury and the credibility issue was the defendants' – Ground 7: 1st and 3rd defendants were co-hosts speaking to a single theme, jury's finding of fact could not be disturbed – appeal dismissed with costs to the plaintiff – subsequent Court of Final Appeal appeal (FACV 12/2000) allowed with costs.
Legal issues: Whether the test for malice in fair comment differs from that in qualified privilege · Correct test for malice in the context of fair comment · Whether the trial judge misdirected the jury on malice and motive · Failure to direct on credibility effect of plaintiff's alleged 10% shareholding in Select Tours (Ground 6) · Whether the 1st and 3rd defendants spoke on separate themes such that neither should be held liable for the other's defamatory comments (Ground 7)
Outcome: Appeal by the 1st and 3rd defendants dismissed; jury verdict and $80,000 award against them upheld.