Appeal court made serious errors in clearing Hong Kong finance chief Paul Chan and wife of defamation, lawyer argues
High Court jury had found couple guilty of defaming father and two children in case centred on allegations of cheating at school – a verdict that was overturned on appeal
The Court of Appeal made serious errors in clearing Hong Kong Financial Secretary Paul Chan Mo-po and his wife of defaming two schoolchildren and their father, the top court heard on Tuesday.
Andrew Caldecott QC made the argument for Chinese International School board member Carl Lu and his children Jonathan and Caitlin Lu at the Court of Final Appeal in a last-ditch effort to challenge the lower appeal court’s decision to set aside a favourable jury verdict.
His clients had won HK$230,000 (US$29,500) in damages from Chan and Frieda Hui Po-ming years ago, after a High Court jury found the couple had published five defamatory emails and a defamatory document against them in December 2011, four of them “published with malice”.
The published materials – written by Hui but jointly signed with Chan – concerned rumours picked by their daughter, about her classmates twins Jonathan and Caitlin cheating at school tests with Lu senior covering up because he sat on the board of governors.
But Chan and Hui were spared paying compensation as the Court of Appeal in 2016 found the trial judge had seriously misdirected the jury on the question of malice and ruled that all of the defamatory materials were protected by qualified privilege.
The present appeal centres on questions of what is the proper legal approach to the issue of malice to defeat a defence of qualified privilege, and whether a retrial should have been ordered if the lower appeal court was right to hold the trial judge’s directions in error.
Caldecott said the privilege grants freedom to communicate defamatory statements of facts – however devastating the consequences – and encourages frank and candid communications on privileged occasions.
But he explained that such communication could turn malicious if the defendant knew the allegation to be false; or was indifferent to the truth or falsity of the allegation; or held an improper dominant motive, in the case where he believed the allegation to be true.
“Our case was [Hui] was indifferent,” Caldecott said. “She didn’t know whether these allegations were true or false, yet she ran with it as if it was a cast-iron case.”
He argued that the trial judge did not misdirect the jury and pointed to “ample evidence that the jury could have found malice as they did”.
“There are a number of serious errors in the Court of Appeal’s approach,” he said.
Seated in the front row of the public gallery, Hui listened intently to the legal arguments, taking notes and occasionally approaching her lawyers with comments.
Benjamin Yu SC, for Chan and Hui, will respond on Wednesday.