Don’t ignore decision to clear Hong Kong finance chief Paul Chan and wife of defamation, court told
Lawyer for the couple hit back at rehashed accusations that comments they published in 2011 were done with ‘malice’
The lawyer defending finance chief Paul Chan Mo-po and his wife in a defamation case on Wednesday said allegations they made of two schoolchildren cheating at school tests are protected by the law, because the couple genuinely believed them.
Benjamin Yu SC backed the Court of Appeal judgment from 2016, which concluded his clients genuinely believed in what they published and set aside a jury verdict for them to pay HK$230,000 (US$29,500) in damages for defamation.
“We want to emphasise this very careful judgment has gone through a painstaking exercise,” Yu told the Court of Final Appeal. “They came to this conclusion and that’s not something that should be lightly ignored.”
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Hong Kong Financial Secretary Chan and Frieda Hui Po-ming were sued by Chinese International School board member Carl Lu and his twins Jonathan and Caitlin Lu following their publication of five emails and a document in December 2011.
The published materials – written by Hui but jointly signed with Chan – concerned rumours from their daughter about her classmates Jonathan and Caitlin cheating at school tests, with their father covering up the matter as he sat on the board of governors.
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A High Court jury found the materials defamatory, with four items “published with malice”. But the Court of Appeal two years ago found the trial judge had seriously misdirected the jury on the question of malice, and ruled that all the defamatory materials were protected by qualified privilege.
The ruling meant that the couple were seen to have had a legal, moral or social duty or interest in publishing the materials and they had done so without malice.
The Lu family made a last-ditch effort to challenge this decision, resulting in the ongoing case.
On Tuesday, their lawyer, Andrew Caldecott QC, argued that the materials were not protected by qualified privilege because they were published with malice, as Hui was indifferent to the truth or falsity of the allegations. The court heard she emailed other parents saying “nothing is seen to have happened” despite being told that Jonathan had already been twice exonerated by the school’s investigations.
But Yu countered there was nothing in the emails to suggest his client did not believe in what she wrote, and that belief would exclude the claim of indifference because they are “two different states of mind”.
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“One can understand the sentiment – rumours are circulating, nothing is seen to be done,” he said. “It may be that she was jumping to conclusions, it may be that she has failed to understand the significance of the exonerations. But the law protects the defendants. The Court of Appeal is correct.”
However, Chief Justice Geoffrey Ma Tao-li, presiding over the matter, observed: “If you have a one-track mind, that has the makings of a malice claim. The fact that you firmly believe in something doesn’t make it an honest belief.”
He also expressed surprise that the jury was not told the definition of qualified privilege throughout the trial. “It’s a very odd matter,” Ma said. “The jury must be wondering what qualified privilege is.”
Yu further highlighted six points of misdirection in the trial judge’s summing up to the jury and suggested that if a retrial was necessary, a single judge should preside over the case.
Judgment on the matter was reserved.
