FACV 13/2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL (CIVIL) NO. 13 OF 2017
(ON APPEAL FROM CACV NO. 252 OF 2015)
_________________

BETWEEN
JONATHAN LU (盧冠中) 1st Plaintiff (1st Appellant)
CAITLIN LU (盧亮臻) 2nd Plaintiff (2nd Appellant)
CARL LU (盧光漢) 3rd Plaintiff (3rd Appellant)
and

PAUL CHAN MO-PO (陳茂波) 1st Defendant (1st Respondent)

FRIEDA HUI (許步明) 2nd Defendant (2nd Respondent)
_________________

______________________________________________

SUPPLEMENTAL CASE FOR THE APPELLANTS

______________________________________________

Introductory

1. These submissions only address additional points raised in Ds’

Case.

The legal test for malice in qualified privilege

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2. Ds’ primary contention is that lack of honest belief does not
amount to a dominant improper motive, which has to be
distinctly proved in every case. Ds also adopt the CA’s view that
only knowledge of falsity, rather than recklessness, leads directly
to an inference of malice.

3. It is not fanciful to imagine a defendant telling a deliberate or

reckless untruth, where his dominant motive for doing so is
proper. Suppose D campaigns for the release of a convicted man
whom he honestly believes to be a victim of a serious
miscarriage of justice. To further his campaign, he accuses Y of
the crime not caring whether the charge is true to persons with a
legitimate interest. He does not know Y and has no personal
animus against him. His aim is the release of X. Ps submit that
Lord Diplock would consider D malicious:

[1] Lord Diplock repeatedly says that good faith

communications are what the defence of qualified
privilege exists to protect (eg “what is published in good
faith” at 149D; “a positive belief” at p149E; “bona fide
protection” at 149H, and “honest belief” at 150B).

[2] At p150A, Lord Diplock observes that “no sense of duty or

desire to protect his own legitimate interests can justify a
man in telling deliberate and injurious falsehoods about
another …”. At 150B-C he extends the principle to a
reckless publisher who is “treated as if he knew it were
false”.

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 [3] Lord Diplock states that the qualified privilege “is lost if
the occasion which gives rise to it is misused” (149E).
Motive must be seen in the context of the purpose for
which the protection exists. In Cheng v Tse Wai Chun
(2000) 3 HKCFAR 339 – see further below – the direction
suggested by Lord Nicholls does not refer to “motive” but
to whether “the defendant used the occasion for some
purpose other than that for which the occasion was
privileged”. That purpose is the free communication of
defamatory statements provided they are made in good
faith.

[4] Lord Diplock does identify motive as central, but holds

that a person who tells lies or is reckless, will be treated as
not using the occasion for its protected purpose and in that
sense as improperly motivated.

4. If the ultimate question is always whether the defendant’s

dominant motive (in the ordinary sense) has been identified and
proved by the plaintiff to be improper, a salutary objective could
justify the use of dishonest means to achieve it.

5. This explains why the long line of English appellate cases cited
at §11 of As’ Case.

The decision in Cheng

6. In Cheng Lord Nicholls defined malice for the purposes of the

defence of fair comment. Ps submit that, insofar as the judgment
assists on the present issue, it supports the above approach:

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 [1] Lord Nicholls equates reckless indifference to the truth
with a dishonest state of mind: “Honesty required that the
defendants genuinely believed the comments they made.
Anything less would not do. If they knew their comments
were untrue, or were recklessly indifferent to the truth or
falsity of their comments, they were acting dishonestly”.

[2] Lord Nicholls defines proof of malice in fair comment as

“where a defendant is abusing the defence” (our
emphasis). He goes on to say that “Abuse consists of using
the defence for a purpose other than that for which it
exists”. This reflects Lord Diplock’s emphasis on
“misuse”: see §4[3] above. Later Lord Nicholls expressly
states that this approach is correct for both defences.

[3] Lord Nicholls deals with qualified privilege at 354J-355G,

but in a case where the defendant does have a positive
belief in the truth, a dominant improper motive has to be
distinctly identified and proved (hence his selection of the
passage from Lord Diplock’s speech at 355C). On this
point alone, Lord Nicholls distinguishes malice in fair
comment from malice in qualified privilege.

7. Ps agree with Ds’ Case at §45: “misuse of privilege is central to

the concept of malice”. The true issue is what constitutes misuse
for these purposes.

8. Gatley on Libel & Slander §17.4 would, it is submitted, be better

expressed by the proposition that making a statement knowing it

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 is false or with reckless indifference to its truth or falsity is
dishonest and therefore an abuse of the privilege.

Roberts v Bass

9. It is submitted that Cheng supports Ps’ critique of Roberts v

Bass. Lord Nicholls nowhere refers to “wilful blindness”.
Moreover, the adoption of “different shades of meaning of
recklessness” affecting “whether the case is one in which malice
can be inferred”, to quote §55 of Ds’ Case, would introduce
unworkable complications.

The summing up:

A. The Law

10. It is submitted that the SU requires consideration first, since the

CA did not hold that the jury’s verdict was perverse, basing their
decision on their findings of misdirection.

11. Ds place emphasis on the Judge’s example at 17/62:7-14 at

§73(3) of their Case, where a rumour is recklessly presented as
cast-iron fact. Ps submit that, seen as a whole, it does not
constitute a misdirection, still less a substantial one. As
acknowledged at CAJ §200, the Judge repeatedly emphasised
that carelessness or obstinacy was not enough.

B. The facts and the evidence

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12. Ds repeatedly stress that the school had not adequately responded
to D2’s inquiries. However, the key first question, on Ps’ case on
the law, is whether she honestly believed in the allegations of
guilt.

13. Ds cite the CA’s conclusion on the facts at CAJ §232, but that is
inconsistent with CAJ §190, where the CA accept that the two
exonerations might have affected D2’s belief in the truth of her
statements.

14. The judge opened the SU by stating that the jury’s responsibility
“is a very heavy and serious one”: D16/77:5-7. He gave an
orthodox SU on burden and standard of proof at D16/78:20 to
80:4 and detailed the hurdles which the Ps had to surmount to
establish malice.

15. Most criticisms relate to an alleged failure to mention e-mails

favourable to D2’s case. They are addressed below, but some
general points merit mention first.

16. The Judge emphasised testing witness evidence against the

contemporaneous documents: D16/80:20 to 81:3. That direction
is repeated when the Judge begins to sum up the evidence on
malice: D17/8:18-20 and later at D17/46:17-19. Importantly
after the first passage the Judge then states (D17/8:21-23): “Mr
Pow (Ds’ trial Leading Counsel) has referred you to all these
documents, and I saw that you have taken notes of them so I shall
not repeat.” At the conclusion he stated (D17/69:19-21): “so you
read all these e-mails together and ask yourself whether she was
reckless or just whether she was just obstinate, unreasonable.”

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 The SU commenced on the day after Mr Pow’s closing speech,
which placed very considerable emphasis on the
contemporaneous e-mails on the issue of malice (eg D15/28-32).
The documents were limited in number and written in ordinary
language. Elsewhere the Judge again reminded the jury to have
regard to the whole e-mail chain: eg D17/34:22-25 and 43:5-7
and gave a specific example (in D2’s favour): D17/42:1-8. On
the Alexander conversation, the Judge mentioned specific e-
mails relied on by Mr Pow in support of the Ds’ case: D17/42-43.
He referred to e-mails in D2’s favour on other issues at
D17/36:16-18; D17/42:18-22; D17/90:7-16.

17. The Judge was best placed to decide whether reading through the
e-mails again would help or hinder the jury. If Ds’ experienced
Counsel felt that the Judge’s selection for specific reference was
inadequate, he would have said so. Submissions were made by
Ps on matters they wanted raised: D16/96-110 and D17/25. The
overall effect was that the jury must consider the
contemporaneous documents very carefully when considering the
issue of malice.

18. The criticisms by the CA of the Judge’s SU are, with respect,

unfair to the Judge. Ds’ list (§74 of their Case) is appended with
identifiers added.

[1] and [2] presuppose that D2’s evidence was that the rumour of
an incident a year earlier had influenced her grounds for belief in
relation to the immediate matters being considered by the school.
That was not her evidence. She accepted that she did not know
whether this matter was true or false. This incident did not

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 prominently feature in Mr Pow’s submissions and nowhere in the
questions for the jury or the defence of qualified privilege.

[3] The Judge expressly criticised aspects of the school’s

response: D17/36:8-12 and stressed that the important meeting
between the parents and the headmaster explored their “genuine
concerns” eg D17/33:4-14.

[4] The Judge directed the jury that Dr Faunce had at the time
said that D2’s intention was “genuine” (D17/44:10) but to ignore
Dr Faunce’s opinion, after he had seen all the e-mails, that D2
was pursuing a conviction for P1 and to concentrate only on the
objective evidence: D17/44:16 - 45:7. Mere opinion evidence as
to good faith or the lack of it was inadmissible in favour of either
side.

[5] The Judge expressly referred to D2’s thanking Dr Faunce at

D17/44:10-12.

[6] depends on whether the CAJ’s approach to recklessness at

§190 was correct. The criticism assumes that only knowledge of
falsity (rather than recklessness) would be enough to prove
malice.

[7] The Judge referred extensively to the contemporaneous e-

mails: see above.

The Third Plaintiff

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23. Ds’ Case offers no substantive answer to the CA’s failure to
address P3’s position beyond the assertion that this was not the
focus of Ps’ case [§95]. Ds’ analysis of the facts offers no basis
for D2 believing in P3’s guilt of cover up.

24. The principal focus at the trial was on P1 and P2. For obvious
reasons a parent would not wish to prioritise his case over that of
his children. The absence of any material to support a belief in
P3’s guilt meant that the evidence focussed on P1, P2 and the
various tests. However, P3’s case was firmly put at the trial to
the jury in closing: D16/43:16 to 46:21 including the case that D2
had no basis for the attack on P3. P3 gave evidence and obtained
a verdict in his favour. A mere focus on P1 and P2 is not a
proper ground for overturning the verdict in P3’s favour. The
CA hearing was dominated by issues arising from Roberts v
Bass.

Dated this day of February 2018.

ANDREW CALDECOTT QC

GERARD McCOY SC

LAWRENCE K F NG
Counsel for the Plaintiffs (Appellants)

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 FACV 13/2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL (CIVIL) NO. 13 OF 2017
(ON APPEAL FROM CACV NO. 252 OF 2015)
_________________

BETWEEN
JONATHAN LU (盧冠中) 1st Plaintiff (1st Appellant)
CAITLIN LU (盧亮臻) 2nd Plaintiff (2nd Appellant)
CARL LU (盧光漢) 3rd Plaintiff (3rd Appellant)
and

PAUL CHAN MO-PO (陳茂波) 1st Defendant (1st Respondent)

FRIEDA HUI (許步明) 2nd Defendant (2nd Respondent)
_________________
______________________________________________________

SUPPLEMENTAL CASE FOR THE APPELLANTS

______________________________________________________
Filed on the 15th day of February 2018

NORTON ROSE FULBRIGHT HONG KONG

Solicitors for the Plaintiffs (Appellants)
38th Floor, Jardine House
1 Connaught Place
Central
Hong Kong

Tel: 3405 2300

Fax: 2523 6399
Ref: CJOJ/BRID/HK04268

HOK-#13548708-v1