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)

_________________

_______________________________

CASE FOR THE APPELLANTS

_______________________________

[In this Case, page references to the relevant portions of the Record are

printed in the margin. Internal page references are to CB1 and CB2 (Core

Bundles as before the CA); T1 and T2 (Trial Transcript Bundles as before

the CA). For convenience the parties are referred to as P1, P2, P3

(collectively, “Ps”) and D1 and D2 (collectively “Ds”). Trial references

are also given by Day (D), transcript page and line. The CA judgment is

indicated by CAJ.]

2

A. Introductory

1. The CFA gave Ps permission to appeal on two issues identified

in §§1 and 2 of the CFA’s order, namely:

“1. 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?

2. In the event of the Court of Appeal was right to hold

that the summing up in the Court of First Instance

was in error, whether a retrial should have been

ordered.”

2. These two grounds are here referred to as the “malice ground”

and the “retrial ground”; the former representing the “question of

great general or public importance”. The retrial ground arises

because the CA, having found a material misdirection by the

Judge on malice, declined to order a retrial on the basis that no

reasonable jury could have found for Ps. The retrial ground only

arises if the malice ground fails. The malice ground is an issue of

law. The retrial ground requires a consideration of the evidence.

3. It is not disputed on this appeal that the publications were

protected by qualified privilege (subject to malice). The jury did

however return special verdicts on various factual questions

relating to the defence, a few of which have some bearing on the

retrial ground.

4. The trial lasted 18 days with experienced Senior Counsel on both

sides. No reliance was placed by Ds on Roberts v Bass, the

lynchpin of the CA’s decision on malice, either at the trial or in

A/3/71-78

A/12/255

3

their Notice of Appeal to the CA1. Although of interest, that fact

is immaterial to the underlying merits of the malice ground.

5. It is a material matter to the retrial ground that experienced

Counsel made no submission that there was no case fit to go to

the jury on malice. The CA did not find that the jury’s findings

were perverse in the absence of misdirection, despite being

invited by Ds to do so (CAJ, §195).

B. The factual background

6. Essential features are these:

[1] The publications were all written. The defamatory

allegation in most of the publications complained of was

beyond sensible argument that P1 and P2 schoolchildren

were guilty of flagrant cheating at exams, not they were

merely suspected. The exams in question were class tests,

not public papers. The e-mails of 6th and 16th December

2011, and the Summary Note of meeting of 8th December

2011, also alleged that P3 had improperly interfered to

protect his children from disciplinary action. At trial Ds

contended that none of the publications were defamatory

and failed. On appeal the jury’s findings were not

challenged. It will be noted from their verdicts that the jury

gave the issue careful attention 2 and were with minor

exceptions unanimous. They were not asked to specify the

meanings, but in view of their findings on malice, the jury

must have found that Ds intended to convey the above

defamatory message or something like it. The CA did not

approach the issue on any other basis.

1 The CA introduced the case 5 days before the commencement of the appeal. 2 For example, they held that the summary was not defamatory of P2: see Jury

verdict E.1(b).

A/5/167

A/3/79

4

[2] The jury found against Ps on malice in relation to the first

publication (e-mail of 1st December 2011), which was

written before Ds had received any response from the

school as to the nature of their investigations. That finding

clearly reflected the jury’s awareness of the difference

between gross carelessness on the one hand and malice on

the other. Rumours were at the time circulating to the

effect that P1 was suspected of cheating and had escaped

action because P3 had been a member of the Board of

Governors3.

[3] On 3rd December 2011 D2 had a telephone conversation

with Mr Alexander, Head of Secondary (CAJ, §§154-6

refers to the competing evidence). The CA accepted that

the jury had “probably” preferred Mr Alexander’s evidence

(CAJ, §226). Crucially Mr Alexander on his evidence4

informed D2 that the exam papers had been checked by the

supervising teacher, and that the witnesses (including P1

and P2) had been interviewed, and that there was “no

collusion or cause for concern”. On this account, she was

also told that the students concerned had later been

interviewed by senior management as had the teacher (CAJ,

§154). Ps’ case was that D2’s evidence as to this

conversation was deliberately evasive. There was no

suggestion at trial that D2 raised with Mr Alexander any

question of any impropriety by P3. The Judge considered

this conflict of evidence critical to the issue of D2’s

honesty (CAJ, §186)5.

3 See the CAJ, §§3 and 16-17 and the jury answers referred to in the footnotes at

A/5/91. 4 See especially D4/15:15 to 17:23 at T1/3/99-100. 5 In opening Ps’ Counsel described the telephone call as “absolutely crucial to this

case”: D1/68:19-24 at T1/1/17.

A/5/150-151

A/5/177

A/5/150

A/5/87, 91

A/5/164

5

[4] The other e-mails were all (save one – see below) found to

be malicious and had the following characteristics:

(a) They repeat outright allegations of guilt of repeated

cheating by P1 and P2 (especially the first e-mail of

4th December 2011 and the e-mail of 6th December

2011) without any reference to the checking of the

exam papers6 or the two rounds of interviews by the

school;

(b) The first e-mail of 4th December 2011 implies that

despite her contact with Mr Alexander there was no

countervailing evidence of innocence (hence the

outright allegation of guilt in numbered paragraph 3

of the e-mail);

(c) The allegations of guilt are couched in language

highly hostile to P1 and P2, alleging they are likely

to be dishonest “later in their lives”;

(d) Despite (3) above, the e-mail of 6th December 2011

alleges that “nothing is seen to have happened” after

the initial report to Mr Alexander and alleges that

this “lack of action is due to the fact that Dad [P3] is

on the board of Governors”. The words “nothing

happens eventually” also appear in D2’s Meeting

Summary of 8th December 2011, another publication

complained of. In evidence D2 offered no basis for

the allegation against P3.

6 The check was suggested by P1 on the day after the test on 24th November: see

his unchallenged evidence at D5/65:12-24 at T1/5/150. It was an essay question,

not multiple choice: D5/63:4-21 at T1/149.

6

(e) After the involvement of a solicitor, Teresa Ko, there

is a change of tone in the last two publications

complained of, the Meeting Summary of 8th

December 2011 and the e-mail of 16th December

2011, which contain some statements about D2’s

alleged interest in “perception” and assert a desire

not to attack P1 and P2 personally, which cannot

readily be squared with the previous communications

or (f).

(f) Ds walked out of P1’s Head Boy’s speech during the

graduation ceremony in May 2012, a high profile and

wounding personal attack suggestive of guilt. In

explanation in her re-examination at the trial D2

said: “Frankly, at that time I really could not bear

the sight of Jonathan”.7

(g) D2 heard “another story from the grapevines” that P1

had cheated the year before he became Head Boy

after her conversation with Mr Alexander. The CA

placed much reliance on it. In cross-examination,

D2 answered “no” to the question of whether she had

any evidence to substantiate the rumour (other than

the rumour itself).

At the time P1 and P2 were preparing for their IB examinations

and applying for university places, as Ds must have appreciated.

7 D11/44:1-2 at T2/11/280.

7

C. The malice ground

C.1 The importance of the role of malice

7. The defence of qualified privilege represents a compromise

between the right (as does so much in the law of defamation) to

reputation and the right to free expression. The CFA will be

referred to in this context to the well-known dicta in Reynolds v

Times Newspapers [2001] 2 AC 127 of Lord Nicholls at 201A-B

and of Lord Hobhouse at 238A-E.

8. This case is concerned with a different category of common law

qualified privilege, namely that of common interest (as recorded

at CAJ, §53). The exception, whereby a person may be under a

duty to pass on allegations in which he/she does not believe to be

true, is not engaged.

9. In short, where parties have a common and corresponding interest

in the subject matter of a communication, policy requires that they

should speak freely, subject only to malice. The protection

applies, however serious the allegation and however devastating

the consequences. That renders the definition of malice a matter

of profound importance and an issue which engages

considerations of policy.

C.2 The decision of the House of Lords in Horrocks v Lowe

10. The following principles, all canvassed in the leading House of

Lords decision in Horrocks v Lowe [1975] AC 135 with the

possible exception of [6]8, are well established and appear to be

common ground:

8 Although it is implicit in factors [1], [3] or [5], since a defendant can only

logically hold a belief in the message he intends to covey.

A/5/107

8

[1] Malice is a subjective state of mind but commonly inferred

from objective facts, namely what a person said, did and/or

knew at the relevant time or times. Malice has to be

considered separately in relation to each publication.

[2] The burden of proving malice lies on the plaintiff, who

must plead the facts from which malice may be inferred.

[3] If the Defendant knew that a factual allegation was false

when made, that is conclusive evidence of malice, save

where the defendant is under a duty to pass on the

allegation, whether true or false. Neither party suggests

that this special exception is engaged here.

[4] A defendant who abuses the occasion for a dominant

improper motive will be malicious even if he believes in

the truth of the allegation.

[5] Mere negligence, over hastiness or obstinacy in reaching an

honest belief in the truth is not malice.

[6] The issue is not approached by reference to the “single

meaning” rule, whereby 9 for practical reasons the law

imputes a single meaning to defamatory words. The issue

is judged by reference to what meaning the defendant

intended to convey10 . The defendant’s live evidence is

therefore of particular importance. Where the meaning is

plain on its face, the tribunal of fact may be more inclined

to infer that the publisher intended to convey that message.

9 Slim v Daily Telegraph [1968] 2 QB 157. 10 Loveless v Earle [1999] EMLR 530.

9

11. The critical question for the purposes of this appeal arises from

the following statement of principle by Lord Diplock in Horrocks

v Lowe at p149H-150A.

“If it be proved that (the defendant) did not believe that

what he published was true this is generally conclusive

evidence of express malice…”

The effect of this dictum is that the defendant’s attitude to the

truth of the statement is “generally” sufficient to establish malice

without the need to prove an identified improper motive. This has

been treated as a correct and complete statement of the law by

judges of the highest standing in the English Court of Appeal, as

by Lord Phillips at §33 in Loutchansky v Times Newspapers Ltd

[2002] QB 783; by May LJ at §34 in Alexander v Arts Council of

Wales [2001] 1 WLR 184011; by Hirst LJ at p.538 in Loveless v

Earl [1999] EMLR 530. These statements are all subject to the

exception in duty cases summarised at §10[3] above. The

qualifying word “generally” used by Lord Diplock is not

surplusage. On some particular facts special problems may arise.

12. The “honest belief” principle would appear to represent sound

policy. It does not encroach on the reasonableness of the belief,

nor does it require the defendant to have made any enquiries. Nor

does it encroach on the focus on what the defendant intended to

convey. Flexibility is built in by the qualification “generally”. In

the context of serious allegations, where the complaint focuses on

the primary sting of the words, it would seem unobjectionable

that the law require a defendant to believe in the allegations he or

she intends to make.

11 §42 is in similar terms. Lord Woolf CJ (who added some observations irrelevant

to this appeal) and Jonathan Parker LJ agreed with May LJ.

10

13. Some other points may be made about Lord Diplock’s speech.

He uses good faith as a general rubric for what is permissible on a

privileged occasion (p149D). He deals with what malice is before

proceeding at p149H to examine the subtly distinct question of

how improper motive may be proved. He deals with knowledge

of falsity first. In an important passage at p150B-C Lord Diplock

says that indifference to the truth is treated for these purposes as

synonymous with knowledge of falsity (although one adds

parenthetically they are obviously not the same). At p150C-E he

distinguishes between a careless or impulsive conclusion that an

allegation is true and indifference to the truth. He then deals with

proving malice in a case where there is an honest belief by

establishing an identified improper motive. He repeatedly uses

the formula “knowledge of falsity or indifference to the truth” in

the context of honest belief: see pp150H, 151D, 152E and 153A.

When dealing with the facts of the case, he again treats lack of

honest belief as synonymous with knowledge of falsity or

indifference to the truth. At p153E he emphasises the importance

of seeing or hearing the defendant in the witness box.

14. The only other speech is given by Viscount Dilhorne,

commencing at p143A. He identifies the issue at p145D, uses the

same formula for recklessness at p154E and also regards honest

belief as critical at p146A-C.

15. Lord Diplock’s speech accords with earlier Court of Appeal

decisions, where there is frequent reference to a defendant acting

“bona fide” and to a lack of honest belief as ordinarily sufficient

to establish malice. In Clark v Molyneaux (1877) 3 QBD 237

(where the defendant was under a duty to pass on an adverse

report from another) Brett LJ endorsed honest belief as an

appropriate approach since the defendant had adopted the charge

as true (by reference to Whiteley v Adams 143 ER 838) rather

than merely passing it on.

11

16. In Royal Aquarium and Summer and Winter Garden Society v

Parkinson [1892] 1 QB 431 at p.444, the Court of Appeal were

satisfied that the defendant did not know his allegation was false,

but upheld the jury’s verdict on recklessness grounds. The case

was different in that the defendant was reporting what he himself

claimed to have seen. Lord Esher MR stated that the privilege

applies “provided the person who utters it [a slander] is acting

bona fide” (at p443). He defined recklessness as a state of mind

and his examples included “gross and unreasoning prejudice, not

only with regard to particular people, but with regard to the

subject-matter in question”, which he then describes as

recklessness as to “whether what he stated was true or false” (at

p444). In other words, a conscious indifference to the truth or

falsity is enough without more.

C.3 The trial Judge’s application of Horrocks v Lowe

17. The Judge directed the Jury on malice in accordance with

Horrocks v Lowe. He was not asked to do otherwise. The

relevant section appears at D17/54:14 to 69:25 [T2/17/419-423]

with a short addendum prompted by Counsel’s submissions at

D/7/89:13 to 91:16. In outline:

[1] The Judge (rightly) directed the jury on the burden of proof

at the outset (Summing Up (“SU”) 17/54:14-16).

[2] The Judge (rightly) directed the jury to approach malice by

reference to D2’s intended meaning, not its objective

meaning, both at the outset (SU 17/54:17 to 55), when

considering D2’s intentions (SU 17/56:6 to 57:3) and twice

again later (SU 17/65:3-6 and 65:17-24).

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[3] The Judge (rightly) emphasised that carelessness is to be

distinguished from recklessness (SU 17/61:22 to 62:6); and

that obstinacy or irrationality also do not amount to malice

(SU 17/64:4-12) and again at the end of the relevant section

(SU 17/69:16 to 69:25).

[4] The Judge (rightly) directed the jury that to establish malice

on the basis of a motive to injure them, it had to be the

dominant motive (SU 17/57:14 to 58:13). He also (rightly)

distinguished between the fact of resulting injury to

reputation, and the defendant’s knowledge of that

consequence, and the defendant’s dominant motivation (SU

17/58:14-23 and SU 17/59:12-15).

[5] The Judge (rightly) recognised that there is a conceptual

difference between knowledge of falsity and lack of honest

belief (SU 17/60:9-14 and SU 17/61:6-19). He directed the

jury that for the purposes of malice, these two states of

mind were “essentially the same” and that an absence of

honest belief would be sufficient to establish malice as

recklessness (see also SU 17/61:21-21 and 17/64:20 to

65:2). He also directed them that a publisher with an

honest belief in a statement, which is in fact false, is not

malicious (SU 17/63:9-13), what the Judge called “the

other side of the coin”. He directed the jury that it is

reckless to make an allegation if you do not care whether it

is true or not.

[6] The Judge treated a dominant improper motive on the one

hand and knowledge of falsity and absence of honest belief

(the latter being characterised as recklessness) on the other

as alternative ways of establishing malice (eg SU 17/60:9-

11, 19-23, 64:20-22 and 65:7-13).

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C.4 The CA’s critique of the Judge’s summing up

18. The CA’s criticisms of the Judge’s summing up, at CAJ, §185,

are mostly predicated on the joint judgment in the decision of the

High Court of Australia in Roberts v Bass (2002) 212 CLR 1.

That is clear not only from the introductory words of CAJ, §185,

but also from the emphasis on Roberts v Bass in the summary of

the legal principles governing malice at CAJ, §144, where all the

sub-paragraphs save (e) – and (e) is not controversial – refer to

Roberts v Bass.

C.5 The ratio of the decision in Roberts v Bass and its factual

context

19. The facts are set out in the judgment of Callinan J. Two

defendants (hereafter Roberts and Case) appealed to the High

Court of Australia a decision of the Full Court of the Supreme

Court of South Australia that awards of damages for defamation

by the District Court should stand. The three publications were

made during a general election by electors opposed to the

plaintiff’s (Bass) re-election. Case was sued on one leaflet which

he had only distributed. It included a critique of the privatisation

of a hospital, in which Case had an interest. The action related to

different passages alleging abuse by Bass of the parliamentary

travel allowance.

20. On the issue of malice:

Gleeson CJ allowed the appeal of Case, but dismissed the appeal

of Roberts. He held that a failure to inquire does not necessarily

establish recklessness. He also emphasised the importance of

being clear as to what the leaflet would have meant to Case (§§39

and 45) and made the point that Case would not have the capacity

to verify the allegation (§44).

A/5/162

A/5/162

A/5/145-147

14

At §13 of his judgment Gleeson CJ stated: “but it would be

inconsistent with the purpose of the privilege to use the occasion,

not for the honest expression of views, but for the publication of

defamatory matter, knowing it to be false, or not caring whether it

was true or false. Recklessness . . . means ‘indifference to its

truth or falsity’”. As this passage suggests, Gleeson CJ relied on

Horrocks v Lowe.

Gaudron, McHugh and Gummow JJ gave a joint judgment,

allowing the appeals of both Roberts and Case against the

findings of malice.

Their judgment rejects the passages in Horrocks v Lowe which

suggest that lack of honest belief may of itself be a sufficient

basis for inferring malice. Instead they suggest that “the

defendant’s recklessness may be so gross as to constitute wilful

blindness, which the law will treat as equivalent to knowledge”

[ie of falsity] (§84); and that “in less extreme cases, recklessness,

when present with other factors, may be cogent evidence that the

defendant used the occasion for some improper motive”.

However, their judgment also suggests that in such a case,

evidence of unreasoning prejudice may be one such motive. At

§96 they go so far as to say that Lord Diplock’s references to lack

of honest belief “means a belief that the matter is untrue”.

At §109 the joint judgment identifies the kind of case (ie in their

view wilful blindness) where recklessness alone suffices as

“usually” being “cases where the defendant had or was given

information which gave a reason for supposing that what the

defendant intended to publish was false”. This was the approach

taken by the Judge in this case, when directing the jury on the

critical conversation between D2 and Mr Alexander.

15

Kirby J agreed with the joint judgment in the context of political

communications, but specifically reserved the position as to

malice outside such situations (§185).

Hayne J concurred with Gleeson CJ (at §230).

Callinan J upheld the verdict of malice against both defendants.

He concluded (at §305): “the interest of electors is not in being

misled, but in having ‘what is honestly believed to be the truth

communicated’”. In the subsequent case of A v State of New

South Wales (2007) 233 ALR 584, Callinan J observed (at §186)

that “recklessness too can amount to malice in defamation and …

may do so in cases falling short of wilful blindness or the like.”

21. Accordingly, in terms of laying down principles for general

application, the joint judgment is not a majority judgment.

C.6 Ps’ critique of Roberts v Bass

22. Taking the lettered sub-paragraphs at CAJ, §144, it is submitted

that Roberts v Bass is a radical departure from Horrocks v Lowe.

In particular:

[1] Proposition at (a) contradicts Lord Diplock’s emphasis on

the central importance of honest belief.

[2] Proposition (b) contradicts Horrocks v Lowe in not treating

indifference to the truth or lack of honest belief as the same

as knowledge of falsity.

[3] Proposition (c) divides recklessness into two new sub-

classes: wilful blindness and some lesser state of mind

which, unlike wilful blindness, does not establish malice

without more. The relevant passage from the joint

A/5/145-147

16

judgment is set out at CAJ, §145. By contrast, Lord

Diplock had one “simple” (see p152E) definition of

recklessness, namely indifference to the truth.

[4] Proposition (d) builds on (c), exploring what those other

states of mind might be (ie those which raise a case short of

wilful blindness to malice), equates that state of mind with

motive, and then applies the dominant motive test to that

state of mind. This approach departs from Horrocks v

Lowe in applying the dominant motive test for determining

malice where a defendant does believe the allegation to be

true to recklessness.

[5] As stated above, proposition (e) is uncontroversial.

[6] Proposition (f), and the list generally, do not address Lord

Diplock’s formulation of indifference to the truth.

23. Neither the CA nor the joint judgment recognise these

fundamental tensions. As the CA points out at CAJ, §146,

Roberts v Bass sought to reconcile its approach with Lord

Diplock’s on the basis that Lord Diplock “could not have

intended to change the law”, that by indifference to truth and

falsity he meant “wilful blindness”, and by lack of honest belief

he meant knowledge of falsity. In support of that approach the

joint judgment relied on Clark v Molyneaux (1877) 3 QBD 237

and Royal Aquarium and Summer and Winter Garden Society v

Parkinson [1892] 1 QB 431. However, Lord Diplock expressly

addressed these two decisions (see above and p152E) and

formulated his test immediately after doing so in terms which do

not confine lack of honest belief to knowledge of falsity. Second,

it is inconceivable that Lord Diplock, and the other eminent

Judges listed above, were unaware of the obvious distinction

between indifference to the truth and knowledge of falsity. The

A/5/147

A/5/147

17

joint judgment ignores the key sentence where Lord Diplock says

that the former should be treated as the latter for malice purposes.

Third, the words “wilful blindness”, which lie at the heart of the

joint judgment, nowhere appear in Horrocks v Lowe. Fourth, the

two nineteenth century decisions do not subdivide recklessness

into two distinct classes, one additionally requiring proof of an

identified improper motive and the other not.

24. As to the wider merits of the joint judgment:

[1] To distinguish wilful blindness from other forms of

recklessness is fraught with difficulty. There is no

principled reason why a person who ignores information

which suggests that the charge is or is likely to be untrue

should be in any better position than a person who makes

no inquiries for fear he may learn the truth (see R v Crabbe

((1985) 156 CLR 464) in the joint judgment at §84).

Indeed, in the first scenario, the person concerned has the

exonerating information. This is recognised in the joint

judgment at §109, but not earlier.

[2] It is unclear what state of mind less than wilful blindness,

but more than negligence, requires the plaintiff also to

prove an identified dominant improper motive. Even the

CA described their approach as a “rather subtle distinction”

and “the subtle distinction” at CAJ, §§178 and 189. The

joint judgment acknowledges that there are passages in

Horrocks v Lowe which do suggest that honest belief is

“generally” enough. At §17.4 (12th edition) Gatley

describes “indifference to its truth” (not wilful blindness) as

“the clearest case of malice”. Gatley does favour the view

that an improper motive is what vitiates the privilege, but

states that “knowledge of or recklessness as to falsity is not

a separate head of malice, it is simply a way of establishing

A/5/159-160,

165

18

that the defendant was acting from an improper motive and

relieves the claimant of showing what that was” (§17.4,

first paragraph, penultimate sentence, our emphasis). In

Cambridge v Makin [2012] EMLR 19, Tomlinson LJ

considered (at §63) the distinction between “indifference to

the truth” and “wilful blindness” to be of no consequence.

Gatley at §32.36 does not distinguish between them, citing

Cambridge v Makin with approval.

[3] It is unnatural to treat a publisher’s attitude to the truth of a

statement as equivalent to a motive for publishing it, being

rather evidence of an indirect motive. The joint judgment

by contrast approaches “gross unreasoning prejudice” as if

it were a motive and then applies the “dominant motive”

test. Lord Esher in the Royal Aquarium case treated

recklessness of this type as a basis for inferring that the

occasion was abused. Neither Lord Esher nor Lord

Diplock apply the dominant motive test to recklessness in

this sense. Lord Diplock uses the phrase “gross and

unreasoning prejudice” once in his speech, and the context

is telling:

“The other matters referred to by the learned Judge

as showing Mr Lowe to be grossly and

unreasoningly prejudiced might have warranted the

inference that he was indifferent to the truth or

falsity of what he said if his own evidence as to his

belief had been unconvincing . . .” (at p153E)

If there is no recklessness (and no knowledge of falsity),

then the dominant improper motive test has to be satisfied

if malice is to be found. Applying the dominant motive test

to prejudice makes little practical sense.

19

[4] The factual context in Roberts v Bass was special. In an

election, candidates and supporters have a (proper)

dominant motive to damage adversaries. There will be

multiple subjects, and canvassers will be selectively

interested. To require an honest belief in all is unrealistic

and contrary to policy. Such features would allow

adjustment (within Lord Diplock’s qualification

“generally”), but are an unsatisfactory background for

changing general principles.

[5] The joint judgment is a minority judgment to be contrasted

with the unanimous judgment in Horrocks v Lowe.

[6] Article 8 of the Basic Law provides:

“The laws previously in force in Hong Kong, that is,

the common law, rules of equity, ordinances,

subordinate legislation and customary law shall be

maintained, except for any that contravene this Law,

and subject to any amendment by the legislature of

the Hong Kong Special Administrative Region.”

In Winnie Lo v HKSAR (2012) 15 HKCFAR 16 (a case on

the common law offence of maintenance and champerty),

Ribeiro PJ said at §98 that the common law made

applicable by Article 8 of the Basic Law “is the common

law which derives from English common law as received in

Hong Kong…”. In Y v Y [1997] 3 HKC 43 Deputy Judge

Hartmann (as he then was) at p49 stated:

“Article 8 states that the laws previously in force in

Hong Kong shall be maintained. In so far as it

relates to the common law, that must be the common

law of England, that being the law in force prior to

the change in sovereignty. The article cannot be

20

read to mean that the rules of all common law

jurisdictions shall have application in Hong Kong.”

If the submission that Roberts v Bass is a major departure

from, rather than a development of, Horrocks v Lowe is

accepted, then the English common law authority should

prevail.

[7] Lord Diplock’s approach has a sound basis in policy for the

reasons given above.

C.7 Ps’ alternative submission on §109 of the joint judgment

25. §109 of the joint judgment reads as follows:

“Cases where recklessness alone will defeat an occasion of

qualified privilege are likely to be rare. Usually, they will

be cases where the defendant had or was given information

which gave a reason for supposing that what the defendant

intended to publish was false but the defendant nevertheless

published the matter without further inquiry or

investigation. Failure to inquire is not evidence of

recklessness unless the defendant had some indication that

what he or she was about to publish might not be true.”

26. This paragraph posits the usual “rare” case where recklessness

alone suffices. It is not necessary that the exonerating

information proves that the allegation was false; merely that it

gives the defendant reason to suppose it was false. This is

significant because the trial Judge presented Ps’ case on malice as

a “wilful blindness” case in this sense (ie that D2 had information

suggesting her allegations might be false) based on the Alexander

conversation and Dr Faunce’s later circular: see from D17/60-69

at T2/17/420-423. Ps respectfully challenge the CA’s finding to

the contrary at CAJ, §200 as a wrong application of both Roberts

v Bass and Horrocks v Lowe. The CA do not mention §109 of

A/5/169

21

the joint judgment at all, citing instead [84] of the joint judgment

(CAJ, §145) which appears to confine wilful blindness to cases

where a defendant “wilfully shuts his eyes for fear that he may

learn the truth”.

C.8 The additional criticisms of the summing up

27. The CA summarise their findings as to the misdirections by the

Judge at CAJ, §185. Sub-paragraphs (a), (b) and (e) derive from

Roberts v Bass and (c) derives from the CA’s interpretation of

Clark v Molyneux and the Royal Aquarium case. As to (d) Lord

Diplock does state that: “Juries should be instructed and judges

should remind themselves that this burden of affirmative proof is

not one that is lightly discharged”, and there was no such

direction from the Judge beyond a clear direction as to the burden

of proof. The Judge gave a meticulous direction as to the various

obstacles which Ps had to surmount in a logical sequence. Gatley

(at §36.14) refers to one judgment of the Court of Appeal in

England, where a retrial was ordered and one of the criticisms

was a failure to give this Horrocks v Lowe direction (Halpin v

Oxford Brookes University [1996] C.L.Y. 5658). However, the

judgment is not available12, and the other misdirections found

were fundamental: failing to make clear that an allegation of

actual knowledge of falsity was not pursued and failing to specify

which evidence was relevant. The first clearly amounts to serious

procedural unfairness, and the second to a basic failure to sum up

the evidence. Ps have found no authority where it alone has

justified a retrial. Order 59 Rule 11(2) of the Rules of the High

Court requires a due sense of proportion in assessing directions.

The CA is not bound to order a new trial on the ground of

misdirection unless in its opinion “some substantial wrong or

12 Only a short commentary.

A/5/162-164

A/5/147

22

miscarriage has been thereby occasioned” (see also Bray v Ford

[1896] AC 44).

28. Here the allegations of guilt of dishonest conduct dominated most

of the publications complained of in strong language, suppressing

the school’s investigation. If D2 did not honestly believe that Ps

were respectively guilty of cheating and cover-up and/or wilfully

ignored exonerating material, an inference of malice was wholly

appropriate.

29. Ds’ experienced Counsel did not request Lord Diplock’s

suggested direction. Although not invariably conclusive and a

matter of discretion, Courts generally decline to order retrials

where an alleged non-direction was not raised at the time,

especially a direction of this simplicity13.

Moreover, it is not now thought to be generally fatal that a judge

had not directed the jury that the more serious the allegation, the

higher the standard of proof, save in exceptional cases14 (see also

In re B (Children) (Care Proceedings: Standard of Proof)

(CAFCASS intervening) [2009] AC 11 per Baroness Hale at

[70]). The seriousness of a charge of malice would be obvious to

any jury.

30. As to the criticism of the Judge at CAJ, §185(f), the CA did not

regard it as fatal on its own. The Judge repeatedly stressed that

carelessness or irrationality was not malice as the CA accepted at

CAJ, §200. The Judge made it clear that it was D2’s subjective

state of mind which mattered (e.g. D17/63:11-13 [T2/17/421]).

13 See the substantial list of cases and citations at footnotes 40 and 41 to §36.4 of

Gatley, at [1354]-[1355]. 14 See Gatley at §36.17 and Lawrence v Chester Chronicle, The Times, February

8th, 1986.

A/5/163-164

A/5/169

23

C.9 The Judge’s summing up on the facts

31. Various directions from the Judge as to the consequences of

alternative findings on the facts by the jury are also highly

significant. In particular:

[1] If the jury accepted that D2 merely intended to draw

attention to the rumour, to seek investigation and to address

the perception risks (rather than to make an outright

allegation of cheating), then malice could not be found (SU

17/56:21-57:3 and 65:20-24 [T2/17/419-420]).

[2] If the jury rejected Mr Alexander’s evidence as to the 3rd

December telephone conversation with D2, there was no

evidence of malice in relation to the later e-mails (SU

17/68:15-20 [T2/17/422]); similarly if Mr Alexander did

inform D2 of the exonerations, but she did not register the

fact (SU 17/68:18-20 [T2/17/422]).

[3] Even if the jury found that D2 had been told by Mr

Alexander of the exonerations, the jury must still consider

whether she was reckless rather than merely obstinate or

unreasonable (SU 17/69:2-7 and 19-21 [T2/17/423]).

32. In the present case, Ds were not themselves investigators. They

passed on rumours from others in strong language and in several

passages endorsed the allegations as true. It has never been

suggested that Ds were under a duty to do so. The defence was

based on common interest not duty (as recorded at CAJ, §53), and

the special exception referred to in §10[3] above was not engaged.

33. Without dissent the Judge (rightly) treated the disputed

conversation with Mr Alexander and Dr Faunce’s circular as

critical to the issue of malice. Subject to one (explicable)

A/5/107

24

exception, the jury found malice in relation to the publications

which post-dated the conversation and rejected malice in relation

to the publication which preceded it.

34. For these various reasons it is Ps’ primary case that the Judge’s

summing-up did not suffer from any direction sufficiently

material to occasion a substantial wrong or miscarriage; and that

it was clearly open to the jury to find as they did.

D. The Retrial Ground

D.1 Preliminary observations

35. Ps make the following preliminary observations on this issue,

being based on the premise that the joint judgment in Roberts v

Bass is good law:

[1] The alternative submission made above on §109 of the joint

judgment is critical, since the exonerations constituted

information which tended to suggest that the allegations

might well be false. Ps’ primary position therefore is that

the jury’s verdict should stand, because wilful blindness as

explained by the joint judgment reflected Ps’ case on

recklessness and was so put to the jury. The CA at CAJ,

§§189-191 accepted that the two exonerations might have

affected D2’s belief in the truth of her statements (CAJ,

§190), but acquitted her of malice because she did not

know her charges were false (see also CAJ, §196). The CA

also accepted (rightly) that the jury was likely to have

accepted Mr Alexander’s account. It is submitted that this

acquittal is unsustainable, once regard is had to §109 of the

joint judgment. If any discretion is engaged, Ps rely on the

common application at trial of conventional Horrocks v

Lowe principles.

A/5/165-166

A/5/165-166

A5/168

25

[2] Many of the points made below not only go to wilful

blindness within the meaning of §109 of the joint judgment

but also to the question of whether D2 was in fact actuated

by a dominant improper motive. That issue was left to the

jury without objection, and Ps will contend that the CA’s

reasons for rejecting that alternative case were also flawed.

[3] The misdirections as found by the CA all relate to the legal

approach to the issue of malice. There is no suggestion in

the CAJ that the Judge materially misrepresented the facts

or did not put the rival cases fairly, subject to one exception

at CAJ, §191, which is addressed below.

[4] In Horrocks v Lowe, Lord Diplock emphasised the

advantage of the trial Judge having heard and seen Mr

Lowe’s evidence (p153D) and the importance of assessing

whether the witness’s evidence on honest belief is

convincing (p153E), a task requiring consideration of the

witness’s demeanour.

[5] The contemporaneous documents were principally relied on

by the CA (see CAJ, §220), and these are addressed below.

36. The CA attached considerable weight to the absence of any

“previous history or grudges between the parties”. In fact, the

existence of jealousy among students and parents was addressed

both in opening15 and in evidence16.

15 D2/94:22-25 at T1/2/53. 16 E.g. P3 at D3/78:10-17 at T1/3/84.

A/5/166

A/5/175

26

D.2 The first e-mail: 1st December 2011 [CB2/13/186]

37. The jury acquitted Ds of malice in relation to this e-mail.

However, it has significance in terms of what follows. The e-mail

accuses P1 and P2 of guilt of cheating and alleges that they got

away with it “because their daddy sits on the board of

governors”. Ds did not then have any exonerating material.

However, Ds’ own pleaded case was that the rumours were that

only P1 was suspected of cheating and that he had got away with

it on account of his father’s position: see §20(13) of the Amended

Defence 17 , which contains no reference to P2. The first

paragraph suggests that P2 had been involved in multiple

cheating, when the children had only raised one exam in relation

to her. In consequence the questions put to the jury related to

rumours of suspected misbehaviour18 only (eg QA.3(c) of the Jury

Questions), not of guilt19. An allegation of suspicion is more

easily refutable, so this is material once the exonerations come

into play. The second paragraph refers to the inherent

unreliability of rumours (the word “variations”). Likewise, if D2

was primarily concerned with the school’s image, she would have

been relieved to discover that the Head Boy might not be a cheat,

even if school procedures required improvement. Campaigning

for the latter does not require any continuing attack on Ps.

38. In opening 20 Ps’ Counsel made clear that the Ds might be

forgiven for this e-mail, because it preceded the Alexander

conversation.

17 CB1/8/142. 18 The CA identify the existence of the rumour at CAJ, §181, but do not address its

substance, despite correctly describing it as only suspicion. 19 This reflects the notes of a meeting on 29th November 2011 at CB2/12/185:

“The girls were very keen to explain that they had not seen anything that they

would directly accuse either Jonathan or Caitlin of but they felt uncomfortable

about the situation …”. 20 D1/85:19 to 87:2 at T1/1/22 and 90:6-11 at T1/1/23.

A/5/161

A/3/71

27

39. The CA wrongly held that the absence of malice on this e-mail

(and the second e-mail of 4th December) meant that the language

used later could not be evidence of malice (CAJ §§181 and 194).

Obviously, once in receipt of exonerating material, continued

persistence in allegations of guilt in offensive terms may be

evidence of malice.

D.3 The conversation with Mr Alexander (3rd December 2011)

40. Mr Alexander had every reason to give D2 any exonerating

material which he had. D2 envisaged having a “long telephone

conversation” with him (see her e-mail at CB2/20/198 and her

other e-mails sent on the same day as addressed below). She

intended to update parents after the conversation (see the e-mails

to Mrs Chin at CB2/18/194 and to Anney Lay at CB2/21/200).

Crucially, on Mr Alexander’s account, D2 was told that the exam

papers had been checked, and the children involved had been

interviewed (twice) and the teacher concerned also interviewed.

41. The CA appear to treat Mr Alexander’s evidence about his

conversation as supporting D2, when it directly supported a case

on wilful blindness and indeed improper motive (CAJ, §155).

Being unconvinced that a person is innocent is not a state of mind

which honestly leads to alleging without qualification that he or

she is guilty. The obvious significance of the check on the exam

papers was ignored by the CA (save for a passing reference at

CAJ, §229). Harbouring doubts is not equivalent to an honest

belief in guilt (see CAJ, §199). The second sentence of CAJ,

§190 accepts that the Alexander conversation might have

undermined D2’s belief in the truth of her allegations and that

such a conclusion was open to the jury. If it did (it could hardly

not on the verdicts found by the jury) it is submitted that is

sufficient to establish malice.

A/5/161, 167

A/5/150-151

A/5/178

A/5/168-169

A/5/165

28

D.4 The first e-mail of 4th December 2011 [CB2/22/202]

42. This is the most telling contemporaneous document in the case

(see CB2/22/202 where it can be considered with the surrounding

e-mails). As the first line makes clear, it immediately follows the

telephone call from Mr Alexander. A key point, unaddressed by

the CA, is that it does not criticise the school’s handling of the

recent complaints, as surely it would have done if Mr Alexander’s

explanation had not been absorbed or rejected. The introduction

to the e-mail from D2 to Mr Mulcahy, sent half an hour later,

accepts that Mr Alexander had telephoned “to assure me that the

School has taken appropriate action regarding the recent

cheating case”. It is wholly predictable that the jury would have

accepted that, to reassure D2, Mr Alexander would have told her

what the school had done by way of investigation. In evidence,

D2 said that, after the call, she thought the school “had handled it

very well” (see CAJ, §158).

43. Instead of criticising Mr Alexander’s account of the investigation,

the e-mail builds a case of guilt from what is alleged to be

“another story from the grapevines about a year ago”. There is

no reference to that alleged rumour anywhere in the plea of

qualified privilege, and the jury were not asked to make any

findings about it. It came to D2’s attention through Anney Lay in

the vaguest terms (see CAJ, §§157-158)21.

44. Critically in her evidence cited at CAJ, §158 D2 accepted that she

“did not know whether the matter was true or false”. Yet here she

deployed the incident as if it were true in order to perpetuate the 21 Her earlier evidence repeats this statement: eg D7/95:16-20 at T1/7/200 as does

her later evidence at D10/7:18-22 at T2/10/241. The CA extract at CAJ, §158 is

at D8/7:1-13 at T1/7/208. D2 accepted in chief that she had no basis for saying

whether this earlier allegation was true or false: D8/7:7-8 at T1/8/208; likewise

at D10/10:9-12 at T2/10/242.

A/5/152

A/5/151-152

A/5/152

A/5/152

29

allegations of serial cheating against P1. The early reservation “if

this story is true” disappears as the e-mail progresses (see “the

Head Boy who has cheated multiple times without any remorse”,

“cheated repeatedly” in numbered paragraph 1 and numbered

paragraph 3 generally: our emphasis). CAJ, §160 wholly

ignores these unequivocal statements of guilt and at CAJ, §162

the CA erroneously treated the allegation as if D2 had merely

expressed doubt about P1’s innocence and the quality of the

investigation. The allegations were on any fair reading, as D2

must have known and intended, of outright guilt of serial

cheating. The last paragraph remarkably suggests that both P1

and P2 “will be tempted to cross the lines to achieve their selfish

ends later in their lives, and the consequences may be too much

for them to bear” – an offensive suggestion based on an incident

which she did not know was true or false. The opening paragraph

does not suggest that P2 featured in the rumour about the

supposed incident “a year ago”, yet by the end she too is accused

of guilt on the back of it.

45. Throughout these exchanges D2 used the heading “Head Boy

Cheating”22, and the e-mail was blind copied to three parents.

46. This evidence has to be weighed against how D2 later portrayed

her motives in contemporaneous e-mails, press releases when the

proceedings commenced, and in evidence – namely concern only

about the school and perception issues with no interest in

“pointing fingers”. This e-mail was personal and accusatory. At

CAJ, §§160 and 225 the CA appear to have accepted D2’s

“perception” explanation without any regard to the later passages.

22 Much later, there is a change to suspected cheating, but that on D2’s own

evidence was prompted by Anney Lay: see D9/50:11-25 at T1/9/228. Anney

Lay did not give evidence at the trial. D2 even suggested in evidence that the

heading might have been to the Head Boy last year: D9/53:8-11 at T1/9/229;

evidence the jury was plainly entitled to reject.

A/5/153

A/5/153-154

A/5/153, 177

30

D.5 The Second e-mail of 4th December 2011 [CB2/23/203]

47. As to the jury’s finding of no malice in relation to the second

e-mail of 4th December 2011, this email was administrative in

nature, in forwarding the first e-mail of the 4th December to

Anney Lay (who had already received it) and Brian Mulcahy, one

of the senior investigating teachers, at their request. In that

context this communication had little potential for causing

damage. Nor did this e-mail address the main, most recent

alleged incident which was the subject of the Alexander telephone

call. Significantly, the jury found that Ds were not acting out of

any of the pleaded proper concerns in relation to this e-mail (see

Jury Answers C.3(f) and (g)).

48. Even if this finding was in any way anomalous, the anomaly is in

Ds’ favour, when the Jury findings are considered in the round.

D.6 The e-mail of 6th December 2011 to Teresa Ko [CB2/30/216]

49. In this e-mail D2 introduced a new theme, which on the basis of

her own evidence that after that conversation she thought the

school had handled it well, she must have known to be false23:

namely that “after a lapse of over two weeks, nothing is seen to

have happened”. The relevant children had been questioned

(twice), and the exam paper had been checked. The point was

repeatedly made at the trial, including in the opening24.

50. Again, this e-mail treated the rumour raised by Anney Lay, which

D2 did not know to be true or false (see above), as true in the

strongest terms: “What’s more last year 5 students reported to the

23 While she denied Mr Alexander’s account of the conversation (eg D9/85-6 at

T1/9/237) and its length, she accepted “he did mention that the school had done

something”: D9/84:22-25 at T1/9/236. 24 D1/107:21 to 108:6 at T1/1/27.

A/3/76

31

teacher that the same boy cheated at an exam, but ironically

instead of being punished, he was made Head Boy the following

year!” This has nothing to do with perception. It is personal,

accusatory and an allegation of guilt sent to a lawyer parent.

51. The e-mail also adds a further layer to the allegation against P3,

namely that the inaction in relation to P1 is attributable to P3

being on the Board of Governors but also “a personal friend of Dr

Faunce . . .” (the three dots at the end invite the reader to

speculate), immediately followed by the words “What’s more . . .”

That allegation acquires traction from the false suggestion that

“nothing is seen to have happened”. Despite accepting that the

jury were likely to have accepted Mr Alexander’s evidence, this

point is ignored in the cursory treatment of this e-mail at CAJ,

§167. This highlights the dangers of an appellate court dipping

into facts on a selective basis.

52. The penultimate paragraph makes clear that the, or the primary,

“matter” concerning D2 was not school procedures, but the

exoneration of Ps by the school’s investigations hitherto.

D.7 The notes for the 8th December 2011 meeting [CB2/37/236-237]

53. Although this document is more restrained in language and refers

to various perception issues, it engages points canvassed above.

Despite saying that they have not come to point fingers, she

describes the students as having seen P1 and P2 cheating (ie

guilt), repeats the suggestion that “nothing happens eventually”,

immediately followed by the related case that the incident is “seen

to be swept under the carpet” when it involves children of “all

powerful board members” – “all powerful” tending to imply that

such power was used.

A/5/155-156

32

54. The opening paragraph has curious emphases in the bold type,

underlining and the capital AND before the reference to P1 being

made Head Boy. It is certainly arguable that the School should

have given the children the full reasons for their exonerating P1

and P2, but D2 knew them on the basis of the Alexander

conversation.

D.8 The 7th December e-mail from D2 to Anney Lay

55. This is not an e-mail complained of, but was heavily relied on by

the CA in finding no reasonably arguable case of malice: CAJ,

§§168-170 and 227. The e-mail asserts that D2 was not

concerned to “point fingers” (CB2/35/229). Obviously, a

malicious person rarely admits to malice or doubts about the truth.

The most revealing aspect of this e-mail is its characterisation of

the crucial first e-mail of 4th December, which the jury

unsurprisingly found to be malicious. D2 characterises it as: “I

wrote to Justin with a list of questions, with a view to finding out

the current procedures for dealing with cases like this and the

follow up actions”. That is a travesty of what that e-mail says and

was setting out to do as analysed above.

56. The 7th December e-mail declared good intentions, but their

genuineness has to be assessed by reference to what Ds had said,

done or known hitherto and thereafter.

D.9 The 16th December 2011 e-mail to Dr Faunce copied to several

parents [CB2/43/254]

57. The context for this e-mail is explained at CAJ, §§48-50.

It followed the decision letter exonerating P1 in relation to the

24th November exam (CB2/42/253), which referred to the

importance of the teacher’s evidence and the examination papers,

the fact that the girls had expressed concerns rather than outright

A/5/156-157,

178

A/5/104-105

33

accusation and explained that he would be drafting a letter to the

community the following day. The decision letter was not sent

direct to D2 but was forwarded to her by Anney Lay. Before

waiting for the community letter (at CB2/44/257-8), D2 continued

to refer to “perceptions” that P1 and P2 had cheated and escaped

punishment due to P3. Yet, if the perceptions were false, Dr

Faunce was clearly right to say so to the community. How that

might fan “the flame of rumours” against P1’s reputation, as D2

here suggests, is very hard to follow, whatever the grounds for

criticising the school’s procedures.

58. The protestations of concern only with perception and the

school’s interests are very hard to reconcile with Ds walking out

of P1’s Head Boy’s speech during the graduation ceremony25.

Such a public act (after these proceedings had been commenced)

was bound to rekindle the rumours and suggest they were true

and/or that the P1 and P2’s guilt had been covered up. The CA

dismissed this extraordinary action as “logically neutral” (CAJ,

§231) as to D2’s honest belief. However, it goes critically to

motive (dismissed by the CA earlier in its judgment), when set

against her repeated statements that she had no interest in

damaging Ps.

59. If Ds talked up the case against Ps and/or deliberately

misrepresented the extent of the investigation and/or knowingly

ignored exonerating material and/or presented P1’s guilt of the

alleged first, earlier incident as established (when D2 on her own

evidence did not know whether it happened or not) to achieve

their objectives, that would be an abuse of the occasion and

properly regarded as malice. Anger as a potential dominant

motive was accepted at CAJ, §185(c), as indeed is spite. At CAJ,

25 Described by P3 in evidence at D3/67:19 to D3/68:13 at T1/3/81. See also D2’s

evidence in cross-examination at D11/22-23 at T2/11/275 and re-examination at

D11/43:20 to 44:6 at T2/11/280.

A/5/180

A/5/163

34

§233 the CA starkly suggested that the Ds’ concern (in fact D1

gave no evidence) with school procedures meant that they could

not be found guilty of wilful blindness. That is, with respect, a

serious non sequitur (see also CAJ, §181, penultimate sentence).

In opening 26 and thereafter, Ps’ Counsel made clear that any

concern with school procedures was unobjectionable, but that did

not provide a licence to libel Ps.

D.10 The alleged misdirections by the Judge on the facts

60. Perhaps the most serious finding by the CA was that the jury had

not been directed to have regard to the statements of “good intent”

in the later e-mails (CAJ, §§170 and 191). In fact they were

specifically so directed as appears from extract from the Summing

Up at CAJ, §180. Those statements were heavily relied on by Ds

at trial, and the jury must have had had them clearly in mind.

D.11 The failure of D1 to give evidence

61. Since malice can only be inferred from what a defendant said or

did or knew (this aspect of Horrocks v Lowe is not challenged in

Roberts v Bass), it is highly unusual for a defendant not to give

evidence (assuming there is otherwise an arguable case on

malice). D1 clearly could have given extensive evidence (he

attended much of the trial) about his and his wife’s state of mind,

but chose not to do so. It was a factor the jury were fully entitled

to take into account.

D.12 P3’s position

62. The CA do not address at all D2’s grounds for belief in the grave

charge made against P3 of abusing his position as a governor to

26 D2/21:25-21:11 at T1/2/34-35.

A/5/161

A/5/157, 166

A/5/160

A/5/180

35

ensure his children’s cheating was “swept under the carpet”, for

which no evidential basis was offered by D2 at the trial27. Most

strikingly in the e-mail of 6th December 2011 (see above), this

allegation was based on the assertion that “nothing is seen to have

happened”, two days after the Alexander telephone conversation.

Nor did D2 raise this allegation with Mr Alexander or put it to P3.

These matters were before the jury as relevant to malice, as

indeed they were.

63. On the question of intended meaning, D2 accepted that this

allegation against P3 was serious and of corruptly influencing the

board of the school28.

64. The jurisdiction to strike out a plea of malice and/or not to permit

it to go to the jury is well known and reflects standard principles

in other areas of the law. No such application was made in the

present case.

D.13 Summary on the retrial ground

65. In conclusion Ps’ submissions on this ground are as follows (on

the premise that the joint judgment in Roberts v Bass is good

law):

[1] The Judge’s summing-up on recklessness reflected §109 of

the joint judgment without any material misdirection on the

facts; accordingly, the jury’s verdict should stand.

[2] In the alternative, there was ample evidence on which the

jury could have properly concluded that Ds’ dominant

purpose in repeatedly publishing the allegations against Ps

27 P3 gave unchallenged evidence that the board of governors have nothing to do

with internal disciplinary processes: D3/53:25 to 54:2 at T1/3/78. 28 D10/25:20-26:2 at T2/10/246.

36

was malicious, and that D2’s later protestations of good

motives were self-serving29.

[3] Ps respectfully submit that the CA’s approach to the facts

suffered from a number of errors and impermissible

assumptions in Ds’ favour; and their analysis of the

contemporaneous documents was highly selective, ignoring

often strong evidence in Ps’ favour.

[4] If the retrial ground arises for decision, and if submissions

[1] and/or [2] do not prevail, Ps with regret ask for a retrial

as their final fall-back position.

Dated this 13th day of November 2017.

ANDREW CALDECOTT QC

GERARD McCOY SC

LAWRENCE K F NG

Counsel for the Plaintiffs (Appellants)

29 This was Ps’ case at trial both in opening, closing and in evidence.

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)

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CASE FOR THE APPELLANTS

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Filed on the 13th day of November 2017

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