The Court of Final Appeal (“CFA“) has handed down its much anticipated judgment in Jonathan Lu & Others v Paul Chan Mo Po & Anor  HKCFA 11 (10 April 2018). The central issue in Paul Chan was the operation of “qualified privilege” when used by defendants in seeking to defeat defamation claims. “Qualified privilege” arises when the law recognises that the need for uninhibited communication outweighs the need to protect one’s reputation. Specifically, the CFA was asked to state its approach to “malice” which is a ground to rebut such a defence. In short, the CFA ruled that “malice” means any purpose apart from that protected under “qualified privilege” and that whether the defendant knew the statements to be false or not, on its own, is not sufficient to establish “malice”. Of interest to legal practitioners, the CFA also laid out the approach by which a jury should be directed when defamation cases are concerned. The CFA allowed the Plaintiffs’ appeal and directed the case to be retried at the Court of First Instance (“CFI“).
The 1st and 2nd Plaintiffs were students at a particular school in Hong Kong, and the 3rd Plaintiff is their father, who also happened to be a member of the board of governors at the material time in 2011. The 1st and 2nd Defendants were parents of another student in the school. All three students were in their final year of studies. There was a rumour that the 1st and 2nd Plaintiffs had cheated in a school exam, and following a school investigation, no evidence of cheating was found and no disciplinary action taken. The Plaintiffs then sued the Defendants for defamation arising from the latter’s publication of 5 emails and a summary note. The Defendants acknowledged publishing them but denied them to be defamatory, and contended that in any event, they were covered by qualified privilege. The case was first heard at the CFI involving a jury trial, finding amongst others that, 4 out of the 6 communications were malicious. Upon appeal to the Court of Appeal (“CA“), the jury’s decision was set aside for misdirection, but the CA ruled against a retrial and dismissed the Plaintiffs’ claims instead. The Plaintiffs’ appealed against the CA’s ruling on malice, and leave was granted to appeal to the CFA on 2 questions:
- What is the proper legal approach to the issue of malice to defeat a defence of qualified privilege, with particular emphasis on the treatment of the mental state or belief on the part of the party who has allegedly made the defamatory statement?
- In the event that the CA was right to hold that the summing up in the CFI was in error, should a retrial have been ordered?
Definition of malice
The CFA noted that “malice” is an unfortunate expression. Its ordinary meaning (such as there being a bad intent) is different from its technical meaning in law, leading the CFA to advise against using it in jury directions given the confusion. “Malice” in the context of qualified privilege means the “use of a privilege occasion for some purpose other than that for which the privilege is accorded by the law“. This begs the question of what “privilege” means. The CFA held that it refers to “an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made“. The CFA also recognised that a defendant may have had more than one motive, and the crux was whether the dominant purpose was covered by qualified privilege; if so, the defence will not fail. Should malice be found, the defence of qualified privilege will be defeated.
The area of greatest dispute is whether there was an alternative definition relating to the defendant’s knowledge of falsity or indifference as to the truth or falsity of the statements. The CFA ruled in the negative – the defendant’s mental state is not a separate basis to find malice. That said, the CFA recognised that it has evidential value, and a related issue was how “recklessness” as to the truth or falsity should be treated. In short, the CFA ruled that the definition of “recklessness” is not to be overly complicated, it simply means “without considering or caring whether it be true or not“, disagreeing with the finer distinctions the CA drew in different forms of recklessness (e.g. wilful blindness vs mere indifference). It is worth noting that this distinction in “recklessness” follows a High Court of Australia judgment in Roberts v Bass (2002) 212 CLR 1. The CFA ruled that such an approach is not applicable to Hong Kong.
Directions to jury
The CFA also took the opportunity to clarify how jury directions should be given when issues of qualified privilege and malice are involved. First, directions should be given on the weight of the burden of proof which the plaintiffs had to discharge. Second, it was imperative that the below questions be asked in the following order: (1) was qualified privilege established, if so what was the purpose? (this is a legal question for the judge to rule on); and (2) whether that was the defendant’s purpose when the statement was published (this is a factual question for the jury to decide). This is because without informing the jury of what purpose is covered by the qualified privilege, the jury cannot embark on the second question. The CFI failed to provide the above to the jury, in addition to providing an alternative definition of malice which the CFA disagreed with.
Hence, the CFA upheld the CA’s decision to set aside the jury verdicts given the defects in the trial judge’s directions to the jury. However, owing to the CFA’s finding on the definition of malice above, the CFA ruled that the CA ought to have ordered a retrial regarding malice, as there was evidence which could be regarded as going the other way.
Defamation is a complex area of law, as recognised by the CA and CFA at various points in their judgments. The practical implications of Paul Chan are two-fold. First, malice does not require a ‘bad intent’, it simply is what is not covered under qualified privilege. When one is about to make a statement that involves another’s reputation, it is prudent to first make a careful assessment as to whether (a) qualified privilege can reasonably be established and (b) it is the dominant purpose. Second, although knowledge or recklessness on the truth or falsity of a matter is not sufficient on its own to find malice, it nonetheless has evidential value, and comprehensive due diligence should be taken on the truth or falsity of a matter before any publication is made.