Tse Wai Chun Paul v. Albert Cheng and Another

CACV000170/1998

CACV170/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 1998

(ON APPEAL FROM HCA9983 OF 1996)

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Coram: Hon Chan CJHC, Leong and Wong JJA in Court

Dates of Hearing: 5, 6 and 19 October 1999

Date of Judgment: 2 February 2000

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J U D G M E N T

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Hon Chan, CJHC:

1. After a trial before Yuen J and a jury, on the plaintiff's claim for damages for defamation against the 3 defendants, the jury awarded $80,000.00 to the plaintiff against the 1st and 3rd defendants and held the 2nd defendant not liable. This is an appeal by the 1st and 3rd defendants against the verdict of the jury.

Background

2. The plaintiff is a solicitor by profession. The 1st and 3rd defendants are public affairs commentators. The background which led to the present proceedings can be summarised as follows.

3. In September 1991, Mr Au Wing Cheung (Mr Au) was instructed by his then employer Select Tours International Company Limited (Select Tours) to lead a tour group to the Philippines. On 7 September 1991, when the tour group was going through the customs in Manila Airport, Mr Au and a member of the tour group, Mr Wong Chuen Ming (Mr Wong), were arrested together with a number of other members of the group for trafficking in a drug which was commonly known as "ice". Both Mr Au and Mr Wong were prosecuted, convicted and sentenced to life imprisonment by the court in the Philippines. This had attracted a lot of publicity in Hong Kong. Some people believed that Mr Au and Mr Wong were innocent. They formed various groups organising campaigns seeking their release. One of these groups was the Tourist Industry Rescue Group of which Select Tours was a member and the plaintiff its honorary legal adviser. The 1st defendant had also organised another group and various activities which were aimed at the same objective. As a result of the campaigns by these various groups, Mr Au and Mr Wong were released by the Government of the Philippines in July 1996 and returned to Hong Kong. They were accompanied by various people including the plaintiff and the 1st defendant. Understandably, different people claimed credit for the successful return of Mr Au and Mr Wong.

4. After Mr Au's return to Hong Kong, there was a suggestion that he should claim compensation from his ex-employer Select Tours for the period in which he was detained in the Philippines, i.e. from September 1991 to July 1996. It would seem that the plaintiff had advised Mr Au not to make the claim whereas the 1st defendant urged him to do so.

The conversation in question

5. On 1st August 1996, the 1st and 3rd defendants were co-hosts in a phone-in radio talk show broadcast on the Chinese channel of the Commercial Radio which was run by the 2nd defendant. The name of the programme was "Teacup in a Storm". During the programme, the 1st and 3rd defendants said something about the plaintiff which the plaintiff alleged was defamatory of him. It was a conversation between the two defendants. A record of the conversation together with a translation thereof were annexed to the Re-Amended Statement of Claim.

6. The plaintiff alleged that the 1st and 3rd defendants had defamed him by saying that he was one of those people who had subjected Mr Au and his family to threat and intimidation during Mr Au's detention in the Philippines and that he had given advice to Mr Au on Mr Au's claim for compensation from his previous employer Select Tours, having regard only to the interest of the travel industry but not that of Mr Au. Thus, it was alleged that the 1st and 3rd defendants had imputed that the plaintiff had acted unprofessionally, unethically and allowed himself to be put into a position of conflict of interest.

Defences and reply

7. In response to the claim, the three defendants raised the following defences: (1) the statements complained of did not refer to the plaintiff and were not defamatory; (2) they were true or substantially true; and (3) in so far as they consisted of expressions of opinion, they constituted fair comment on a matter of public interest.

8. In reply to the defendants' defences, the plaintiff pleaded that the 1st and 3rd defendants published the words complained of maliciously. As particulars of malice, it was alleged that (1) the 1st and 3rd defendants knew and/or believed that the words were untrue; (2) they published the words with reckless disregard as to whether the words were true or false; and (3) the words were published with certain motives. As particulars of such motives, the plaintiff relied on a number of matters, namely, the 1st and 3 rd defendants wanted (1) to persuade Mr Au into pursuing his claim against Select Tours for compensation, (2) to pressurize Select Tours into compensating Mr Au; (3) to gratify their animosity against the plaintiff and Select Tours; (4) to belittle the efforts of the plaintiff and to distinguish the 1st defendant's efforts with regard to giving assistance to Mr Au, and (5) to raise a new controversy so as to arouse the interest of the audience in continuing to listen to their programme. The trial judge had ruled that there was no evidence of malice on the part of the 2nd defendant. He also ruled that there was no evidence that the 3rd defendant knew or believed the words to be true or had any animosity against the plaintiff or wanted to belittle the efforts of the plaintiff.

Jury's verdicts

9. All three defendants raised identical defences. However, the jury held in favour of the 2nd defendant but against the 1st and 3rd defendants. Mr Martin Lee SC for the 1st and 3rd defendants submits that from the jury's verdicts, it is clear that they must have found that what the 1st and 3rd defendants had said in the programme must have (1) referred to the plaintiff and (2) must have been defamatory of the plaintiff. This I agree. If it were otherwise, the two defendants would not have been found liable for defamation. For the same reason, it is also clear that the defence of justification must have failed. Counsel further submits that subject to the plea of malice, the defence of fair comment would have succeeded. This I also agree. All three defendants raised this as a defence, but only the 2nd defendant was held not liable. This must be due to the fact that the judge had ruled that there was no evidence of malice against the 2nd defendant. If it were otherwise, the 2nd defendant would also have been held liable. In fact, in her summing up to the jury, the judge directed them to find the 2nd defendant not liable if they should find that the defence of fair comment had been proved by the defendants. (See for example p.208 of the Bundle.)

10. However, Mr Lee makes one further assumption. In respect of the defence of justification and that of fair comment, the defendants had submitted to the court at the trial a transcript of the conversation. It was put to the judge and jury that the words in the transcript which were underlined were to be treated as facts while those which were not underlined were to be treated as opinions. Counsel submits that it can be taken from the jury's verdicts that the words underlined must have been found to be not defamatory or to be true or substantially true and that the words not underlined must have been found to be not defamatory or defamatory comments but based on a sufficient substratum of the true facts which a person could honestly make on a matter of public interest.

11. With respect, I do not think that such assumption can be made. The transcript was placed before the court by the defendants. It only indicated what the defendants alleged were facts or matters of comment. It was clearly put to the jury by the trial judge on that basis. I do not think this was ever accepted by the plaintiff.

12. What I think can be accepted is that the different verdicts of the jury in respect of the 1st and 3rd defendants on the one hand and of the 2nd defendant on the other indicate that the jury must have held that the 1st and 3rd defendants had failed in their defence of fair comment because the plaintiff had succeeded in proving malice in respect of the 1st and 3rd defendants. As Mr Lee suggests, the jury must have been satisfied that the plaintiff had established one or more of the particulars of malice proved.

Issues in this appeal

13. The main arguments in this appeal centre around the question of malice. Of the 7 grounds of appeal, Grounds 1 to 5 criticize the way the trial judge dealt with the issue of malice in her directions to the jury. Ground 6 complains that the trial judge had failed to direct the jury on the credibility of the plaintiff as a result of the evidence which came out in his cross-examination to the effect that the plaintiff had indirectly held 10% of the issued shares of Select Tours and thus had an ulterior motive in advising Mr Au not to sue Select Tours without disclosing his interest. Ground 7 alleges that the trial judge had failed to direct the jury that from a reading of dialogues 37 to 46 in the transcript, it is clear that the 1st and 3rd defendants were speaking on two different and separate themes, one not necessarily associating himself with what the other was saying. It is said that the judge's failure amounts to a misdirection in law.

14. The trial judge directed the jury that the matters discussed in the programme were matters of public interest. It is also not disputed that the 1st and 3rd defendants had made certain comments during the programme. The main issues for consideration in this appeal are as follows :

(1)	whether the test for malice in respect of fair comment is the same as that in respect of qualified privilege;
(2)	what is the correct test for malice for fair comment;
(3)	even if the test for malice is the same for both defences, whether the trial judge had applied the wrong test and misdirected the jury on this issue.

I shall deal with Grounds 6 and 7 separately.

Malice in the context of qualified privilege & fair comment

15. Counsel submits that the trial judges' direction to the jury on malice were wrong. He argues that the judge had adopted the wrong test in that she had applied the test which was generally applicable only to cases where qualified privilege is raised as a defence. Counsel submits that the correct test where the defence is fair comment is that of honesty. It is submitted that although malice will defeat both defences of qualified privilege and fair comment, these are two separate defences and a distinction must be drawn between malice in the context of qualified privilege and that in the context of fair comment. Counsel sets out ten points which he regards as the material differences between the two defences. His comparison is, with respect, quite comprehensive. I do not mean any disrespect by not repeating them here. From this comparison, counsel draws the conclusion that the tests for malice in respect of these two defences are therefore different.

16. Freedom of speech is one of the fundamental freedoms in our society. But this freedom is not absolute and there are limitations. One of the limitations is that in the exercise of this freedom, a person must not defame others. If he does, he will be held liable to the person he has defamed unless he has a defence. There are circumstances in which public policy requires that a person should be able to exercise his freedom of speech without fear of being held liable for defamation. To achieve this purpose, the law provides him with a defence in these circumstances, if certain conditions have been satisfied.

17. Two of the defences which the law provides are qualified privilege and fair comment. The origins of these defences were not entirely clear. While there are differences between them, there are also similarities. Where a person has an interest or is under a duty to communicate to another person, provided that he speaks for the purpose of protecting that interest or discharging that duty, the occasion is covered by qualified privileged. When a person expresses an opinion on a matter of public interest, provided that he bases his opinion on some facts or what he believes to be true facts, he can raise the defence of fair comment.

18. The defence of qualified privilege attaches to a person speaking on a special occasion and the defence of fair comment applies to a person speaking on a special subject, i.e. a matter of public interest. Although the conditions which give rise to the defence of qualified privilege and those which give rise to fair comment are different, these two defences are similar in nature. They are essentially protection available to those who are genuinely exercising their freedom of speech. Whether it is qualified privilege or fair comment, the person relying on such defences must not abuse the protection which the law provides him for a good purpose. If he does, he is abusing his freedom of speech. In both cases, there is an abuse if the person relying on these defences exercises his freedom of speech for a purpose other than that for which the law offers him special protection. If he makes use of a privileged occasion or purports to exercise his freedom of speech in expressing an opinion for his own purpose or to further his own motive, that is an abuse and he will lose these defences. The reason for giving him protection is to uphold the freedom of speech. Such protection will be taken away if he abuses this freedom. That, I think, must be the rationale common to both defences. It is well established that proof of malice defeats both defences of qualified privilege and fair comment. In my view, this is because if a person acts with malice (in the sense as understood in the law of defamation), he is regarded in law as abusing his freedom of speech.

19. That being the rationale of the two defences, I do not agree that the test for malice in the context of qualified privilege and that of fair comment are different. As Mr McCoy SC for the plaintiff submits, it cannot be right that in the same branch of the law, malice has two different meanings. If this were the case, then if in a trial, a defendant relies on both defences, the trial judge would find it extremely difficult to direct the jury on the issue of malice without confusing or even misleading the jury. The law of defamation affects every person who wishes to exercise his freedom of speech. I do not believe that it can be or should be so complicated. I find support for the view that the same test for malice should be applied to both defences in what Collin MR said in Thomas v Bradbury, Agnew [1906] 2 KB 627 at 640 :

"Proof of malice may take a criticism prima facie outside the right of fair comment just as it takes a communication prima facie privileged outside the privilege."

The Master of the Rolls would not have made his remark in such a way if it were the case that malice has different meanings in the context of qualified privilege and in the context of fair comment. The learned authors of Gatley on Libel and Slandar, 9th ed. take a similar view (in para. 16.2) :

"It is submitted that the authorities on malice in the different contexts of fair comment and qualified privilege are essentially interchangeable, save for the necessary limitations imposed by the nature of each defence."

Test for malice

20. Mr Lee submits that the correct test for malice in respect of the defence of fair comment should be : has the plaintiff satisfied the jury on the balance of probabilities that the defamatory comment was not the honest expression of a defendant's real view but a mere abuse of invective made under the guise of criticism. Counsel submits that honesty is the cardinal test for malice. He relies on the cases of Turner v. MGM Ltd. [1950] 1 All ER 449, HL; Silkin v. Beaverbrook [1958] 1 WLR 743, Slim v. Daily Telegraph Ltd. [1968] 2 QB 157, Chenersky v. Armadale Publishes Ltd. (1978) 90 DLR 321; and Telnikoff v. Matusevitch [1992] 2 AC 343 at HL.

21. With respect, upon an examination of these authorities, I do not think that these cases decided that the "sole test" for malice is honesty. What these cases decided must be looked at in the light of the issues argued before the court. In my view, the passages relied on by Mr Lee show that the courts in these cases were mainly concerned with the subjectivity of the defendant's comments : the comments of a defendant need not be justified in the eyes of the jury so long as it was a real or honest view of the defendant (Turner); provided that the belief was honestly held by the defendant, it did not matter that it was an opinion which was "exaggerated, obstinate or prejudiced" (Silkin and Slim); it was not open to the jury to find that the views expressed by the defendant were those which no fair minded person could honestly hold and the comment was fair in the objective sense (Telnikoff); it was for the plaintiff to show that the defendant did not act honestly when he published the comments (Cherneskey). I do not think that these decisions had decided any principles which are inconsistent with Horrocks v Lowe [1975] AC 135 on the law relating to malice.

22. The House of Lords in Horrocks v Lowe had restated the law on malice in the context of qualified privilege. In my view, the same applies in the context of fair comment subject to the adaptations due to the different circumstances which give rise to the two defences. There is a very good summary of a statement of the law as set out in Horrocks v Lowe in Gatley at paragraph 16.3. Adapted for application in the context of fair comment, I should think that the principles which are relevant to this case can be stated as follows :

(1)	There is a good reason for the public policy giving protection to a person who exercises his freedom of speech to express an honest opinion on a matter of public interest. Such expressions ought to be encouraged in a free and democratic society.
(2)	If a person purports to exercise his freedom of speech for some reason other than expressing an honest opinion on a matter of public interest, he loses the protection which the law gives him for the purpose of encouraging expressions of honest opinion on matters of public interest.
(3)	A defendant is entitled to the protection unless some improper motive on his part is proved. However, the human mind being what it is, a person may have a number of motives or reasons for doing a particular thing. Hence, the improper motive must be the dominant motive behind the expression of the opinion in question. The usual motive is that of injuring the plaintiff. Other motives may also suffice. But personal spite, ill will or a desire to injure to plaintiff is not necessary.
(4)	If it can be proved that the defendant did not believe that what he said was true, that is generally conclusive evidence of express malice. He cannot be said to be expressing an honest opinion.
(5)	If the defendant said untrue matters, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth.
(6)	Positive belief in the truth of what is said will usually protect the defendant unless he can be proved to have made use of what he said for a purpose other than expressing an honest opinion on a matter of public interest.

23. The basic premise is whether the defendant has abused his freedom of speech when expressing his opinion or making his comments about the plaintiff. The test for malice cannot be expressed in a simple formula. Whether a defendant can be regarded as having malice depends on a consideration of all the circumstances of the case, including whether he knows what he says is true or not, whether he honestly believes in the truth of what he says, whether he has any motive to serve other than expressing an honest opinion, whether that other motive is the dominant motive for saying what he says.

24. If it can be shown that he knows what he says is not true, or that he does not believe in the truth of what he says, that is generally conclusive evidence of malice. If it is shown that he does not care or is indifferent to whether what he says is true or not, that is also evidence that he does not honestly believe what he says. In such cases, he cannot be said to be expressing an honest opinion. He is simply abusing his freedom of speech. Honesty or honest belief is clearly a necessary consideration. But the matter does not end there. In some cases, the presence of honesty or honest belief is not sufficient to absolve the defendant from liability if it can be shown that he makes his comment about the plaintiff for some other motive and that such motive is the dominant motive behind what he says. The clearest evidence of abuse is the presence of an improper motive. It is open to the plaintiff to prove that although the defendant may honestly believe in the truth of what he says, his desire is to use his comment not for the purpose of expressing an opinion but to further his own purpose. Hence, whilst honesty or honest belief is necessary and relevant evidence which the court or jury must take into account in deciding whether the defendant has abused his freedom of speech or has acted maliciously in making his comment, evidence of improper motive, particularly when it is pleaded, cannot be ignored.

25. I am therefore unable to agree with counsel's submission that the sole test for malice is whether the defendant has an honest belief in the truth of what he says. The cases to which counsel refers were cases in which the court found it necessary to emphasize the need to have an honest belief in the truth of what is said. For if a defendant did not honestly believe in what he said, the defence could not even get off the ground.

Judge's directions on malice

26. Counsel submits that even if the correct test for malice is the same as that for qualified privilege, the judge was wrong in not following that test. A number of complaints are made against her directions.

27. The first complaint is that the judge had failed to direct the jury on whether the 1st and 3rd defendants had honestly believed the truth of what they said. It is clear from the summing up that the judge had emphasized that what a critic or commentator should be doing is to express his "real" opinion. (See pages 207R, 208B, 210M, N, O). The judge also told the jury that if the defendants spoke the words without any honest belief in the truth of what was said, that would be conclusive evidence of malice. She said :

"So, as far as evidence is concerned, you will remember that the first particular of the Particulars of Malice pleaded in the Reply, at paragraph 2(i), is that, 'The 1st defendant published the said words knowing and/or believing that they are untrue'. The 'words', there, must be comment, right? Because this is all pertaining to the defence of fair comment. So, is there any proof that the 1st defendant published the said comments knowing and/or believing that they are untrue? In other words, if the defendant speaks words knowing - or rather, if the defendant speaks words without an honest belief in the truth of what he is saying, normally that would be conclusive evidence of malice.

So, if the defendant makes a comment, which is not really his opinion; if you can see into his mind and you are satisfied that, when the defendant made a comment, which is not really his opinion, he would be guilty of malice because, although he's pretending to give his opinion, he's not really giving his opinion. All right? Now, that would be malice".

28. This part of the summing up was in line with the statement of the law as decided in Horrocks v. Lowe. The judge had in the whole summing up referred several times to the question of honest belief on the part of the 1st and 3rd defendants. Further, whether the defendants had any honest belief in the truth of what they said was not the main dispute at the trial. What the plaintiff had alleged in his Reply was that the 1st and 3rd defendants had published the defamatory comments with some other motives. That was the main ground relied on by the plaintiff in order to defeat the defence of fair comment. I do not think that in the circumstances of this case, the judge can be criticized for not dealing in depth with the question of whether the 1st and 3rd defendants had actually held any honest belief in what they said.

29. The second complaint is that the judge was wrong to direct the jury that if a defendant was actuated by a motive other than purely commenting on a matter of public interest, he is not protected by the defence of fair comment. It is necessary to examine how the judge dealt with malice, in particular the issue of motive. These are the relevant parts of her summing up on this important issue, starting at page 207 of the Bundle.

" So, now we deal with malice and what is malice. It's a little misleading, actually, for that word to be used. Because the defence of fair comment can be defeated or, in legal language can be rebutted, by a malicious motive. Now what is a malicious motive? A malicious motive is some motive other than that of a pure expression of a critic or a commentator's real opinion, all right? So it isn't just because one person hates the other, that can be malice, but that's not the only meaning of malice, all right? Because the defence of fair comment was provided by the law to allow people to express their opinions, right? But, if what you're doing, when you said that, was not really expressing your opinion on a matter of public interest, like everyone is entitled to do, but you're trying to pursue some other motive, and just using fair comment as a disguise, then you lose the defence of fair comment, all right?

Now, so you have to see what's the motive for it. And this is a subjective test, all right? When someone said something, which on the face of it sounds like fair comment, if the plaintiff can prove that when he said it he had some other motive in mind, not just expressing his opinion as every one can do on matters of public interest, now if the plaintiff can prove that the defendant had some other motive, then that defeats the defence of fair comment. all right? Now, this is so, even though exactly the same comment, if made by another person without those motives, would be a defence, all right? So it doesn't matter what was said, you have to look subjectively into the speaker's mind when he said it. And it's for the plaintiff to prove that.

So, can I now tell you, members of the jury, what the law on malice is. The law of malice actually can be stated quite simply, which is that a defendant cannot abuse his position as a critic or a commentator, (and it's not necessarily a professional commentator, anyone making a comment, anyone criticising anyone); he can't abuse his position by making use of that position for some improper or indirect purpose or motive, all right?

Now, please remember that improper doesn't mean something, ignoble, something dishonourable; that is not what is meant. 'Improper' means, when you look at his position, making a comment, or making a criticism and the proper thing for him to take into account is just expressing his opinion on a matter of public interest, if he has a different motive, if he wants to abuse his position or misuse his position of making a free comment by using that position for some other motive, then that is an improper motive - an improper purpose of the words he had said, all right? And malice, in the popular sense of personal ill-will or spite or intention to injure the plaintiff, is not necessary, although this is one of the particulars of malice pleaded in this case.

So, you consider what was the dominant motive and whether that is an improper motive in the sense of not using his freedom of expression in the proper way - because the law gives everyone freedom of expression for proper purposes. If you abuse that freedom of expression for using it for some other purpose, then that is an improper or indirect purposes or motive and you lose the protection that the law gives you of fair comment, all right?

So, the question is, were the speakers' motives other than just speaking as critics or commentators? And, as I have told you, the burden of proof is on the plaintiff to show that, when the defendants said certain things, said certain comments, they actually had some other motive in mind which was a dominant, improper motive, in the light of the freedom of expression given by the law to people to express their comments."

30. It is clear from the above passages in the summing up that the trial judge was trying to direct the jury on this difficult issue step by step. She told the jury that (1) the objective behind the defence of fair comment was to allow people to express their opinions; (2) if a person was not really expressing his opinion, but purports to do so in pursuance of some other improper motive, the defence would be defeated; (3) if the defendants had made the comments purportedly in the position of commentators, they must not abuse or misuse their position by making use of that position for some other improper motive; (4) improper motive means a different motive, a motive to abuse or misuse his position for some other motive; and (5) the defence would be defeated if the improper motive was the dominant motive.

31. In my view, this line of summing up is clear and logical. It is also in line with the rationale behind the defence and in accordance with the law as stated in Horrocks v Lowe. I do not think it can be flawed.

32. Another complaint against the judge's directions is that the judge had failed to direct the jury that the plaintiff had to prove that the dominant motive which actuated the defendants was not a desire to comment on a matter of public interest but to further some other motive. The judge was, counsel submits, wrong to suggest to the jury that if they found that there was some other motive, then that would be improper motive.

33. In view of this attack, it is necessary to examine this part of the summing up. As the plaintiff had particularized a few motives in his attempt to rebut the defence of fair comment, the judge therefore dealt with each of the pleaded particulars as follows, starting from page 211M,:

(1) first particular of motive

" Now, the first motive they have pleaded is that they wanted to persuade Mr AU Wing-cheung to sue Select Tours.

(The judge then dealt with the evidence.)

Now, the question, therefore, is , 'Was the 1st defendant - was the 3rd defendant just pursuing their own agenda?' Were they pursuing their own political agenda? Was that the dominant motive when they were saying all this? Was it just fair comment on a matter of public interest? Or, were they making use of this opportunity to push their own political agenda as the dominant and improper motive, all right? Did they step from just being a critic or a commentator into using that position, into using that time on the air, to pursue their own private agenda, however noble the cause may be, all right?

(Referring to the transcripts of the tape of 15 August 1996) Now, the question is, well, is that an indication that he was trying to push this agenda that he and labour leaders had induced? Did he - was he simply commentating on a matter of public interest or was his dominant motive trying to push for that agenda? And, if that is the case, was that an improper motive?

(2) second particular of motive

" Now, the second aspect or (b) is to pressurise Select Tours into compensating Mr AU Wing-cheung.

(The judge then dealt with the evidence.)

Now, you have to ask yourself, in the course of this broadcast, was the 1st defendant and was the 3rd defendant also trying to do the same thing, instead of just commentating or criticising on a matter of public interest; was their dominant motive trying to put pressure on someone to pay up, and was that improper, in the sense of being outside the proper scope of comment on a matter of public interest?

(3) third particular of motive

" Now, '(c) to gratify their animosity against the plaintiff and/or Select Tours' - in this regard, animosity against the plaintiff is out as regards the 3rd defendant, of course. Now, that has taken probably the most time, as far as evidence is concerned, but you have to see, members of the jury, whether this is part of the dominant motive of the defendants. And there has been a lot of evidence given and I'll just refer to you to some parts of it which may be more important than the others.

(The judge then dealt with the evidence.)

But you have to consider whether that was the dominant motive or one of the dominant motives - one of the motives which became the dominant motive for the broadcast or for the comments made on 1 August.

(4) fourth particular of motive

" And, in relation to (d) in the particulars, 'to belittle the efforts of the plaintiff in distinguishing the 1st defendant's efforts in assisting Mr AU', well, of course, you will remember the evidence of different approaches - high-profile, low-profile approaches; events in the Philippines at the time of release.

(5) fifth particular of motive

" Then, of course, there is the last particular of malice which is that 'They published the said words with a view to raise a new controversy so as to arouse the audience's interest in continuing to listen to their programme'. Well, you consider the style of the programme, and as you have heard, obviously, everyone wants more listeners. But you have to consider for yourselves whether that, together with some or all of the other motives which we have just gone through, whether they were so dominant as to have taken the defendants out of the protection of fair comment. Did all these motives add up to being the dominant motive such that mere comment or criticism of a matter of public interest became no longer the real purpose of this programme?"

34. In respect of each of the particulars of motive pleaded by the plaintiff, after an analysis of the evidence, the judge would direct the jury to consider whether the defendants were making their comments as commentators or whether the alleged particular of motive was the dominant motive or part of the dominant motive. The only exception was in relation to the 4th particular i.e. to belittle the efforts of the plaintiff. It is quite clear that the trial judge dealt with this particular only quite briefly and did not appear to attach very much importance to this. See page 218H-P. It is not necessary to mention the word "dominant" in every sentence which the trial judge said to the jury. In my view, the absence of any reference to that being the dominant motive does not affect the tenor of the judge's summing up. In the whole summing up, the judge had repeatedly (altogether 12 times) directed the jury to consider whether the particular motive alleged by the plaintiff was the dominant motive behind the 1st and 3rd defendants making the comments in question. I cannot see how it can be said that the judge had not applied the correct test in her directions to the jury on the question of motive.

35. Counsel also complains that the judge had failed to warn the jury that they should be very slow in concluding that the 1st and 3rd defendants had abused their position as commentators so as to have acted maliciously. It may be that the judge had not expressly given that warning. But the failure to do so would not necessarily render the whole summing up defective. This would depend on the circumstances of each case. In the present case, the plaintiff relied on a number of motives to defeat the defence of fair comment. If these particulars were proved, it is quite clear that the 1st and 3rd defendants were not exercising their freedom of speech as commentators on a matter of public interest, but were pursuing some other motive and that the jury was entitled to conclude that the two defendants were abusing or misusing their position. When the summing up in the present case is read as a whole, it can be seen that the judge had meticulously dealt with each of the alleged motives and the evidence relating thereto. I do not think that the absence of an express warning is fatal. The present case is distinguishable from Halpin v Oxford Brooks University QBENF 94/08360/C November 30 1995, CA (a case which is relied on by Mr Lee) in that in that case, the trial judge had in fact failed to specify the evidence which was relevant to the finding of malice.

The handouts

36. Counsel also criticizes what was contained in the judge's handouts with regard to the question of malice. The trial judge, in order to assist the jury, gave the jury some handouts. This was used to enable the jury to understand her summing up. The handouts consisted of a total of 13 pages. These appear from pages 240C to 240U in the Bundle. The first page set out the eight issues for the jury's consideration. The rest of the handouts dealt with each of these issues. There is no complaint against any part of the handouts except what was contained on page 11 which dealt with the question of malice. I should set out that particular page in full (page 240T):

"7. Malice

LAW - The defence of Fair Comment can be rebutted (or defeated) by a 'malicious' motive (i.e. by some motive other than that of a pure expression of a critic/commentator's real opinion). This is so even though exactly the same comment, if made by another person not actuated by malice, would be a defence.

I have decided that there is no evidence of malice against the 2nd Defendant; that means that if jury finds defence of fair comment proved by Defendants, then jury must find that 2nd Defendant is not liable to Plaintiff vis-?vis any defamatory comments (as distinct from defamatory facts, for which 2nd Defendant has to prove justification).

I direct also that no evidence against 3rd Defendant on some of the particulars of malice pleaded in Reply; jury has to consider only those which are left.

*paragraphs 2(i), (iii)(c) 'the Plaintiff', (iii)(d) deleted.

The law on malice

A defendant cannot abuse his position as a commentator (not necessarily a professional commentator) by making use of the position for some improper or indirect purpose or motive.

Malice in the popular sense of personal ill-will or spite, or intention to injure the Plaintiff, is not necessary, although this is one of the particulars of malice pleaded in this case.

The question is were the speakers' motive other than just speaking as critics/commentators?

BURDEN OF PROOF on Plaintiff

EVIDENCE -"

37. Counsel complains that this page of the handouts was misleading to the jury. It did not say that the motive must be a dominant motive. It gave the wrong law on malice. Even if the judge had directed the jury correctly in court, counsel suggests that it was the handouts which were more important because the jury had the handouts with them when they retired and the defects could have affected their deliberation.

38. While I accept that this page of the handouts contained rather terse notes of what the judge had directed the jury, I do not think that the handouts should be looked at in isolation. As counsel for the plaintiff says, handouts are not meant to be substitutes for the oral directions of the judge. The notes clearly gave the impression that the judge was trying to draw a distinction between what a critic or commentator should be doing when making the comments in question, (i.e. to express the real opinion of a commentator on a matter of public interest) and the particularised motives which the defendants were alleged to have.

39. The summing up contained plenty of references to the requirement of having to show that there must be a motive other than the motive as a commentator. The judge had also repeatedly made clear to the jury that it must be the dominant motive. (See pages 210E, 212B, D, J, P, 213E, 218E, F, G, 219A and B). The handouts were nothing other than an aide memoire and must not be regarded as a statute. It was what the judge said to the jury together with the aide memoire which must be considered. Having considered the summing up as a whole, I do not think that the judge was wrong in her directions to the jury on motive or malice. I also do not think that the handouts would have the effect of misleading the jury, in the light of what the judge had said repeatedly and clearly in her summing up.

Ground 6

40. In respect of Ground 6, Counsel submits that in this case, the credibility of the witnesses was crucial to the jury's verdict, but the trial judge only directed the jury in general terms on the evidence. She did not offer any guidance on how to assess conflicting evidence. In particular, counsel submits that the judge had failed to refer to an extremely important piece of evidence which would have substantially weakened the credibility of the plaintiff. The effect of that evidence is that both before and at the time of the radio programme, the plaintiff indirectly held 10% of the issued shares of Select Tours. This came out in the cross-examination. It is said that the plaintiff's interest in Select Tours, albeit indirectly, would most certainly have impinged on his credibility particularly as to whether he was in fact in a conflict of interest.

41. In her summing up, the judge did give a direction with regard to the credibility of the witnesses. She said at page 176 of the Bundle:

"Now, of course, members of the jury, as with all witnesses, whether it be plaintiff, whether it's the 1st defendant, whether it's Mr AU Wing-cheung, AU Wing-hon, whoever, you assess the truth or the falseness of that evidence, all right? You're looking at them, you heard them, seen the way they gave evidence. Were they essentially witnesses of truth? It is for you to decide.

Obviously, you can have a lot of things to look at; how someone answered the question, his demeanour, whether the answers accorded with common-sense, whether the answers were consistent with documents, for example. There's a lot of things that you have to weigh in the balance, right? Of course, demeanour is only one - or the way he acts is only one of the matters you have to take into account. And you also have to take into account the fact that people don't give evidence in court everyday. Some people may be worried, some people may be nervous. And you assess the weight of the truthfulness of their evidence in that way, and that applies to everyone, right, who gives evidence in the box."

42. The judge might not have dealt expressly with the evidence that the plaintiff was indirectly holding 10% of the shares in Select Tours. But I do not think that this would have any effect on the verdict. First, the allegation that the plaintiff was possibly in a position of conflict of interest was already before the jury. They knew that he was an adviser of the Tourist Industry Rescue Group of which Select Tours was a member and that he had given advice to Mr Au on his claim for compensation against Select Tours. Secondly and more importantly, as counsel for the plaintiff submits, the defendants was held liable because their defence of fair comment was defeated by proof of malice on their part. It is their credibility which was called into question in respect of this issue, not that of the plaintiff. Thirdly, when the trial judge dealt with the particulars of motive alleged by the plaintiff, she discussed the evidence relating to each particular. It is not necessary to rehearse such evidence again. Suffice it to say that there is ample evidence from which the jury was entitled to draw the conclusion that the plaintiff had succeeded in proving malice on the part of the two defendants.

43. In my view, I do not think that the failure of the judge to expressly direct the jury on the effect of the evidence of the plaintiff's indirect interest in Select Tours on the credibility of the plaintiff would have affected the verdict.

Ground 7

44. In respect of Ground 7, counsel submits that on a reading of dialogues 37 to 47, it shows that the 1st defendant did not appear to have adopted the 3rd defendant's theme of the plaintiff being in a conflict of interest situation. The two defendants were talking in different themes and it is not clear whether one was accepting or following the theme of the other or vice versa. It is argued that the 1st defendant did not adopt the 3rd defendant's defamatory statement and was not a party to the defamation and that the 3rd defendant who made the defamatory statement might not have been found to be malicious towards the plaintiff. Counsel submits that if the jury had been properly directed, they might have concluded that malice in the form of spite and ill-will was proved against the 1st defendant but he had not been a party to the 3rd defendant's defamatory comments and hence there was no need for the 1st defendant to raise a defence in respect of that defamatory comment. On the other hand, it is submitted, while the 3rd defendant was solely responsible for the defamatory comment regarding the plaintiff's conflict of interest, he was protected by the defence of fair comment which was not rebutted by malice in the form of spite or ill-will because he hardly knew the plaintiff and had not been involved in the rescue operation or had written any article critical of the plaintiff.

45. In my view, this submission cannot be sustained. Throughout the programme, the 1st and 3rd defendants had adopted the style of speaking at more or less the same time, laughing and making sarcastic remarks. One defendant was talking of one matter about the plaintiff while the other on another matter about the plaintiff. This might give the impression to the listeners that they were playing a duet and talking on the same subject matter. They were co-hosting the programme and there was one theme in their conversation, that is, to comment on what the plaintiff had done in relation to Mr Au and Mr Wong. Whether this was the impression of the jury is, in any event, a matter for them. They were the sole judges of the facts. The jury had heard the record of the whole programme played back to them. They were in a position to draw the necessary conclusion. I do no think an appellate court can intervene on such finding of fact. In my view, this ground fails.

Conclusion

46. For the reasons given above, I see no merits in any of the grounds. The appeal must be dismissed. I would also make an order nisi that the 1st and 3rd defendants do pay the costs of this appeal to the plaintiff.

47. It remains for me to thank all counsel for their diligent research and thorough submissions which I have found to be extremely helpful.

Hon Leong JA:

48. I agree.

Hon Wong JA:

49. I am in complete agreement with the judgment of the Chief Judge and would also dismiss the appeal with costs to the plaintiff.

Representation:

Mr Martin Lee, SC leading Mr Erik Shum instructed by Messrs Ho, Tse, Wai & Partners for the Appellants

Mr Gerald McCoy, SC leading Mr Paul Shieh instructed by Messrs Paul W Tse for the Respondent

Remarks: