Cacv000251 2015

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CACV 251/2015
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 251 OF 2015
(ON APPEAL FROM HCA 370/2012)
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BETWEEN
JONATHAN LU ()
CAITLIN LU ()
CARL LU ()
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1st Plaintiff/1st Appellant

2nd Plaintiff/2nd Appellant
3rd Plaintiff/3rd Appellant
and
PAUL CHAN MO-PO ()

FRIEDA HUI ()
1st Defendant/1st Respondent

2nd Defendant/2nd Respondent
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CACV 252/2015
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 252 OF 2015
(ON APPEAL FROM HCA 370/2012)
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BETWEEN
JONATHAN LU ()
CAITLIN LU ()
CARL LU ()
1st Plaintiff/1st Respondent

2nd Plaintiff/2nd Respondent
3rd Plaintiff/3rd Respondent
and
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PAUL CHAN MO-PO ()

FRIEDA HUI ()
1st Defendant/1st Appellant

2nd Defendant/2nd Appellant
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Before : Hon Lam VP, Hon Kwan JA and Hon Poon JA in Court
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Date of Further Written Submissions : 24 October, 7 & 21 November 2016
JUDGMENT
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Date of Hearing : 20-22 July 2016

Date of Judgment : 23 December 2016
The Court :
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A.
INTRODUCTION
A1.
Overview
The 1st and 2nd plaintiffs are twin brother and sister. The 3 rd
plaintiff is their father.

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The 1 st defendant is the Secretary for
Development, formerly a member of the Legislative Council representing

the Accountancy constituency. The 2nd defendant is his wife.
At the material times, the 1 and 2
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defendants daughter were Year 13 (final year) students for 2011-2012 at
3rd plaintiff was a member of the board of governors of CIS (Board of
In November 2011, rumours were circulating amongst the
CIS community that the 1st plaintiff was suspected of having cheated in a
member of the Board of Governors.
What followed were several rounds of emails amongst some
of the concerned parents, including the defendants, and between the

parents and the school management in early December 2011. Meanwhile,
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December 2011 attended by seven parents including the defendants (the

8 December Meeting). They met with the school management to discuss
their concerns. The second meeting was held on 14 December 2011 (the
two meetings with the school management took place. The first was on 8
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test but got away with it because his father, the 3 rd plaintiff, was a
Kong (CIS). The 1 plaintiff was also the Head Boy for Year 13. The
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plaintiffs and the
Governors).
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Chinese International School, a well known international school in Hong

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14 December Meeting) where three Year 13 students, accompanied by

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their parents, related to the CISs senior school management what they
observed to be certain suspicious behaviour of the 1 st and 2nd plaintiffs at
Some concerned parents remained dissatisfied with the schools decision

and how the matter was handled by the school management.
A2.
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In the end, the CISs school management decided on 15
Action
The plaintiffs commenced the action below, suing the
defendants for defamation arising from their publication of :1

(1)
the 1 December Email between 1 and 6 December 2011,
(2)
the 4 December 1st Email between 4 and 6 December 2011,

containing the 4th Offending Words;
(3)
the 4 December 2nd Email on 4 December 2011, containing

the 5th Offending Words;
(4)
the 6 December Email on 6 December 2011, containing the

6th Offending Words;
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containing the 1st Offending Words;
December 2011 not to take any action against the 1 st and 2nd plaintiffs.
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an economics test on 24 November 2011.
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(5)
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the Summary on a date in December 2011 for the purposes

of the 8 December Meeting attached to the 16 December
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1 The nomenclatures of the documents published follow the same that

were used in the pleadings and adopted by To J in his decision dated 7
October 2015. See Part B below for their definitions. Each of the
Offending Words and their defamatory meanings as pleaded by the
plaintiffs are respectively reproduced in Appendix 1 to 6 to this
Judgment.
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Email dated 16 December 2011, containing
the 2nd
Offending Words; and

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the 16 December Email on 16 December 2011, containing

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The plaintiffs complained that the Emails and the Summary
were defamatory of them. The sting of the Offending Words is, among
other things, that :
(1)
in respect of the 1st and 2nd plaintiffs, they repeatedly cheated
(2)
in respect of the 3rd plaintiffs, he dishonestly and improperly

intervened to cover up the cheating and influenced the
The defendants admitted that they were the publishers of the
Emails and the Summary. They however denied that the Offending
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The Jurys findings
qualified privilege. In reply, the plaintiffs pleaded malice.
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position as a member of the Board of Governors.
Words were defamatory. Alternatively, they relied on the defence of
schools investigation into the cheating by abusing his
in examinations at CIS; and
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the 3rd Offending Words.
After trial,2 the jury first found that all the Offending Words
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were defamatory of the plaintiffs. They next found that the 4 Offending
Words contained in the 4 December 1st Email, the 6th Offending Words
2 At the trial before the jury, the plaintiffs were represented by Mr Robert
Whitehead SC and Mr Lawrence Ng. The defendants were represented
by Mr Jason Pow SC and Mr Victor Dawes SC. The trial before the jury
lasted for 18 days.
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contained in the 6 December Email, the 2nd Offending Words contained in

the Summary and the 3rd Offending Words contained in the 16 December
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Email were all published with malice but the 1
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contained in the 1 December Email and the 5th Offending Words
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HK$50,000.00 and the 3rd plaintiff, HK$80,000.00.

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The matter then went back to To J for his determination on
qualified privilege and costs of the action.3

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By a decision handed down on 7 October 2015, the learned
Judge found that the publication of the 1st Offending Words/1 December
Email and the 5th Offending Words/4 December 2nd Email was protected
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(1)
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the defendants shall pay 60% of the plaintiffs costs, other
certificate for two counsel;

(2)
In respect of costs, the Judge ordered :
the plaintiffs shall pay the defendants costs in respect of the

counsel;
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submissions on qualified privilege with certificate for two
To Js Decision
than the costs of the submissions on qualified privilege, with
damages to the 1 plaintiff in the sum of HK$100,000.00; the 2 plaintiff,
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by qualified privilege.
Offending Words
contained in the 4 December 2nd Email were not. They finally awarded
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3 The matters were dealt with by written submissions only. By then, the
defendants were represented by Mr Benjamin Yu SC and Mr Victor
Dawes SC.
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(3)
all costs are to be taxed on party and party basis if not agreed
(Costs Order).
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Appeals
Both parties appealed.4
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Judges decision on qualified privilege and the Costs Order. In CACV
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CIRCUMSTANCES SURROUNDING THE PUBLICATIONS

Since both qualified privilege and malice are fact-sensitive
surrounding the publication of each of the Offending Words in order to

give the proper context to our discussion on them later.
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questions, we will in this section detail the relevant circumstances
B.
Jury and their findings on malice.
In CACV 251/2015, the plaintiffs sought to set aside the
252/2015, the defendants sought to challenge the Judges directions to the

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Rumours preceding the publications

During an economics test held on 31 October 2011, Lok
Lok, a student of Year 13, observed some suspicious behaviour on the
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part of the 1st and 2nd plaintiffs.5 During another economics test held on
24 November 2011, Lok Lok and 3 other fellow students, Laura, Danielle
and Joyce, observed certain suspicious behaviour of the 1 st and 2nd
4 Before us, the plaintiffs are represented by Mr Gerald McCoy SC and
Mr Lawrence Ng, the defendants by Mr Benjamin Yu SC and Ms Queenie
Lau.
5 As found by the Jury : see the Jurys Answers to Questions C.3(a) and
(b).
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plaintiffs as described by Lok Lok, Laura and Danielle in the taped

transcript of the 14 December Meeting.6 In gist, according to what they
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As of 29 November 2011, rumours were circulating among
having cheated in a test but he got away with it because his father was a
member of the Board of Governors.7 The rumours were widespread.
Anney Lay (Danielles mother) and Jenny Chua (Lauras mother), and the
2nd defendant.8
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The second defendants unchallenged evidence was that she
learnt of the rumours from her daughter towards the end of November
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Emails before the 8 December Meeting

The rumours prompted the 2nd defendant to send an email
(signed by her and the 1st defendant) to Ken Pemberton and his wife,
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They had reached many parents including Michelle Chin, Rosa Ling,
CISs students and their parents that the 1st plaintiff was suspected of
2011.
saw, the 1 and 2 plaintiffs were suspected of cheating during the test.
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Fanny Wong, parents of a Year 13 student, copied to the 1 defendant on

1 December 2011 at 11:36 pm (the 1 December Email). It read :
I am the mom of a year 13, and I have heard from the
grapevines that Jonathan Lu and his twin sister were caught
cheating at the Econ exam but apparently he managed to get
away without any consequence And that is because their
6 As found by the Jury : see the Jurys Answers to Questions A.3(b).

7 As found by the Jury : see the Jurys Answers to Questions A.3(c) and
(d).
8 As found by the Jury : see the Jurys Answers to Questions C.3(c) and
(d).
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This story (and variations of it) is travelling fast and wide

within the CIS community. It is highly undesirable (to use the
slightest words) and it sends a very unhealthy message to our
young kids. I have heard that some parents are contemplating
to bring it to the Press if the school authority is not handling it
properly. I am sure the school authority has dealt with this
matter (instead of sweeping it under the carpet) but they should
do something openly to show that they are committed to uphold
the moral and academic disciplines, and assert the core values
of CIS.
I really hope that Ken, being the Chair of the PTA, would bring
this up with Ted, and do something asap to contain the damages
brought about by the matter and the way it has been handled.
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daddy sits on the Board of Governors and the mom is

somebody.. And that that was not the first and only time that
they cheated, and it has never occurred to them that cheating is
a serious misbehavior that may cost them their future (the
saddest thing is that these kids might believe that having
influential and powerful parents means that they are above the
law, like their counterparts in the Mainland)
I am writing this because we love CIS and we care about the

image of CIS and the values that the school and the teachers
instill in our kids. The last thing we wish to see is another bad
report on CIS in the newspapers.
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In the last paragraph of the 1 December Email, the 2 nd
defendant referred to Ken Pemberton as the Chair of PTA, mistakenly

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thinking that he was still the President of CISs Parent-Teacher

Association (CISPTA).
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Ken Pemberton wrote back to the 2nd defendant at 4:23 am
on 2 December 2011 correcting her mistaken belief and gave her the
name and email address of the current President, Barbee Chuidian. At
8:20 am on the same day, the 2 nd defendant forwarded the 1 December
Email to Barbee Chuidian and asked her to look into the matter and let
the 2nd defendant have her views.
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Barbee Chuidian then took up the matter with the CISs
school management by forwarding the 1 December Email, together with

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of Secondary, copied to Dr Theodore Faunce, CISs Principal, at 9:03 am
day, Barbee Chuidian emailed the 2nd defendant, copied to the 1st
opportunity to speak with him. She said Alexander would be in touch.
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In the meantime at 6:55 pm, the 2 nd defendant forwarded the
1 December Email to Michelle Chin, asking whether she should copy this
email to Anney Lay as well, as suggested by Jenny Chua. At 7:20 pm,
the 2nd defendant forwarded her email to Michelle Chin, including the
1 December Email, because Jenny Chua had asked the 2 nd defendant to
keep her informed of the development of the matter. At 9:21 pm, the 2 nd
email to Anney Lay, forwarding her email to Barbee Chuidian and the
1 December Email. Anney Lays reply email came on 3 December 2011,
ups. She said this was not the first time and suggested a meeting with
Brian Mulcahy, Head of Year 13. At 10:03 am, Anney Lay emailed the
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her on Monday afternoon. Anney Lay had mentioned that a parent had
voiced her opinion to the CISPTA and Justin Alexander, and Brian
Mulcahy asked if Alexanders response could be shared with him. Anney
2nd defendant again, stating that Brian Mulcahy had agreed to meet with
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since Dr Faunce was not in Hong Kong at the time, she had not had the
at 12:16 am. She stated her understanding of the incident and its followP
parents that he would get back to them directly. At 8:45 pm on the same
defendant upon the suggestion of Michelle Chin and Jenny Chua, sent an
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Ken Pembertons reply to the 2 defendant to Justin Alexander, the Head
defendant, saying that she had relayed their message to Alexander but
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on 2 December 2011. She told Alexander that she would respond to the
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defendant to join her in seeing Brian Mulcahy on

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Monday. At 11:37 am, the defendant emailed Anney Lay, asking why
they were seeing Brian Mulcahy and informing him of what Alexander
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December Email in the meantime.)
At 11:52 am, the 2nd defendant
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after reading Anney Lays email at 12:16 am but still wanted to speak to
Anney Lay. They did speak during which Anney Lay repeated that the
incident was not the first time.
had told her. (Alexander had called the 2 defendant in relation to the 1
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emailed Anney Lai again. She said she now had a better understanding
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On 4 December 2011 at 00:36 am, the 2nd defendant sent an
email to Alexander, copied to Barbee Chuidian and the 1st defendant (the
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4 December 1st Email). She wrote :

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Dear Justin
Thank you for your call this morning.
Shortly after we spoke, I am dismayed to hear another story
from the grapevines that about a year ago, 5 courageous and
righteous students reported to the School about Jonathan
cheating in an examination but their report was dismissed (defacto) and nothing happened after that!!! And Jonathan became
the Head Boy the following year!!
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If this story is true, I am sure that the school has earlier incident
on record. I have found it hard to believe that the School has
not taken immediate disciplinary action after the recent incident
against such blatant disregard of the rules and serious challenge
to the core values of the School.
My husband and I would be grateful if you could let us have

your response to the following questions :
1.
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2.
What does the School normally do to discipline a

student who has cheated repeatedly and disregarded the
rules?
What are the criteria for choosing a Head Boy and Girl?
Isnt it true that the Head Boy and Girl are meant to be
exemplary students to whom the students should look
up to? Would the School and the CIS community
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delight in having a Head Boy or Girl who cheats in

exams and achieves exemplary results through
cheating? What irony it is for the Head Boy who has
cheated multiple times, without any remorse, drafts and
announces the Honour Code to the assembly of
students!
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If the testimonies of the 5+4 students are not strong

enough evidence to prove Jonathans and Caitlins
cheating, could you please tell me what are? I find it
very hard to convince myself that all these 9 students
were lying.
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I look forward to discussing the matter with you, and seeking

your wise counsel.
Some 36 minutes later, at 1:12 am, the 2 nd defendant sent
Anney should have already forwarded my previous email to

the Chairman of PTA on the same topic. Here is a more recent
one sent to Justin Alexander, who called me in the morning to
assure me that the School has taken appropriate action
regarding the recent cheating case. However, from what I
heard between the lines, he seems to believe that the evidence
is not strong enough to justify any severe disciplinary action. I
do not agree with his conclusion, especially after I have found
out that Jonathan was seen cheating by 5 students about a year
ago.
introductory part :
4 December 1st Email (the 4 December 2nd Email). She wrote in the
I am even more sad for Jonathan and Caitlin for their failure to
realise the severity of their misbehaviour, as they will be
tempted to cross the lines to achieve their selfish ends later on
in their lives, and the consequences may be too much for them
to bear. Leniency without any corrective punishment is a
disservice to them.
another email to Mulcahy, copied to Anney Lay, forwarding to him the

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At 9:11 pm, Michelle Chin emailed the 2nd defendant,
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thanking her for sharing the 4 December 1 st Email; and stating that she
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had heard that Isabella Bersanis parent(s) had also talked to Alexander
about the same issue but there was no clear answer or action yet.
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At 10:56 pm, Anney Lay emailed the 2nd defendant and
Jenny Chua about the meeting with Mulcahy on the following day.
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On 5 December Anney Lay, Jenny Chu and the 2nd defendant
met with Mulcahy. There were further exchanges of emails among the
and Fanny Wong, forwarding the 4th December 1st Email to them,
expressing her view that the school was trying to sweep this under the
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On 6 December 2011, the 2nd defendant at 1:24 am sent an
email to Teresa Ko, copied to the 1st defendant (the 6 December Email).
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parents on the same day. In particular, Anney Lay wrote to Rosa Ling
carpet.
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After introducing herself and the 1 defendant, she wrote :

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You may be aware that there have been a lot of talks about
students cheating in exams recently, and the most talked-about
is the Head Boy and his twin sister being spotted cheating by 4
fellow classmates, who became so frustrated that they reported
to the teacher about this. The teacher reported the matter to the
Head of Secondary but, after a lapse of over two weeks,
nothing is seen to have happened. Words are spreading fast and
wide among the students and the CIS community that the lack
of action is due to the fact that the Dad is on the Board of
Governors and a close personal friend of Ted Faunce Whats
more, last year 5 students reported to the teacher that the same
boy cheated at an exam but ironically, instead of being
punished, he was made the Head Boy the following year!
Paul and I feel very strongly that this is not right, and we do not
want our kids to have the wrong impression that it is okay to
cross the line to achieve their selfish ends and that they will get
away with it if they have powerful/influential parents
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There are many parents who share the same concerns. I have
recently written to the Chair of the PTA and Justin Alexander
(Head of Secondary) to express our concerns. The first email is
attached below for your reference, and the second one will
follow.
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Justin has spoken with Ted and they propose to have a meeting
with us but we have asked to include a few more concerned
parents. The tentative date of the meeting is this Thu from 8:30
am. A parent who knows Ted and Justin well has warned us
that they would probably go very legalistic (throwing out terms
like lack of evidence, slander, etc) at the meeting to stop us
from pursuing the matter further. With this concern in mind,
Paul and I wonder if you could spare sometime to join this
meeting. We know that you are very busy, so if you cannot join
the meeting, could you give us some personal advice?
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At 1:26 am, the 2nd defendant forwarded the 4 December 1st
Email to Teresa Ko. At 8:16 am, Teresa Ko replied to the 2 nd defendant,

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copied to the 1 defendant, stating that she would be happy to join the 8
December Meeting with Dr Faunce and his staff, and seeking further
information about the incident. At 10 am, the 2 nd defendant emailed to
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Anney Lay, Jenny Chua, Fanny Wong and Rosa Ling, letting them know
that Teresa Ko would be joining the 8 December Meeting.
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On 7 December 2011 at 9:21 am, the 2 defendant wrote an
email to Anney Lay, Jenny Chua, Fanny Wong and Rosa Ling, explaining
why she got involved and the sequence of events that led to the 8
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December Meeting. She wrote :

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I asked myself : Why am I doing this? My daughter is not

involved; she is not in the same econ class; I do not have any
younger children in CIS, this is the busiest time of the year for
my business and family; it is not something easy to take on and
it takes up a lot of my time, and I get discouraged at times
I have every reason to let go (and it is easy) but there is a strong
urge inside me to go forward and stand up for the sake of our
kids and our core values. I admire the immense courage of the
4+5 kids who stood up and spoke up against something which
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they found seriously wrong. They, and all other kids, are
waiting expectantly to see what the School will do about this.
Should we parents also do our part? We may not achieve
anything but at least we try, and it is important that our kids see
that we do.
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Why did I write the first email to Chair of the PTA? I did that
because I love CIS and I have always told people how good
CIS is, and I was shocked to hear that something so blatantly
unjust has taken place, and saddened that our kids have to
witness and experience such inequities and the unpleasant
feeling of helplessness towards them. I want to express my
concerns and to see if the PTA Chair knows this and whether
the parents are doing anything about this undesirable situation.
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Why did I write to Justin? He called me after the PTA Chair

forwarded my email to him, and after our conversation, I was
shocked to hear from Anney that last year similar thing
happened, and thus I wrote to Justin with a list of question, with
a view to finding out the current procedures for dealing with
cases like this and the follow-up actions.
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Why the meeting? I did not request to meet with either Justin
or Ted. I think they should know what to do. I just need
answers to my questions which I think are legitimate. They
requested to meet with me because they are afraid to put down
anything in writing. I expect them to be defensive, and
probably legalistic, at the meeting but my humble goal is to
reiterate the seriousness of the matter and its undesirable effect
on the psychology of our kids, and helpfully they would agree
to let the students know that dishonesty will not go unpunished,
e.g. write a strongly-worded circular to reiterate the Schools
policy towards dishonesty and its consequences. I am not there
to point fingers but I am there to point out the problems, to
listen to their points of view, and to suggest solutions. The
timing of the meeting is important, to stop the discontent and
frustration from building up further.
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At 5:45 pm, the 2nd defendant emailed Fanny Wong and
others, asking for confirmation as to who would attend the 8 December

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Meeting and stating that Alexander had reiterated that he would like to
keep the number of parents to 6.
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B3.
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Before the 8 December Meeting, the 2nd defendant prepared
Ted Faunce and his staff on 8 December 2011. After naming the parents
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Summary was entitled Summary of main points for the Meeting with
who would attend, it read :
The 8 December Meeting and thereafter
a summary for the purpose of the Meeting (the Summary).
Our kids and we are deeply disturbed by the rumours that the
Head Boy has cheated in exams but managed to get away with
it because his dad is on the Board of Governors. There are also
rumours that he was alleged to have cheated last year but
nothing was seen to have happened; AND he was made the
Head Boy the following year. These rumours are very
damaging to the image of CIS and erode students trust in the
School. We feel strongly that the School should do something
promptly to contain the damages.
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We come here not to point fingers. We are here to present the

problems as we see them and to listen to what the School has
done/will do about these.
1.
Perception issues
We are alarmed to hear that cheating in exams is not
uncommon; it has always been there but nothing
seems to have been done to stop this.
Students often find it hard to turn in their friends
when they see them cheating; And even if they are
courageous enough to do so, like what the 4
righteous kids just did, theyll find that they are
always told that the School would deal with the case
but nothing happens eventually.
Whats worse is when such a case involves children
of the all powerful Board members, and is seen to
be swept under the carpet, it is bound to become
huge rumours and they can really spread fast and
wide. It is highly undesirable for the kids to have the
wrong perception that one will be untouchable if
his dad/mom is a Board member or a good friend of
someone powerful. It really undermines the kids
belief in integrity and honesty and erodes their trust
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in the system because the School is not doing what it

teaches.
2.
Clearly the invigilation standards have a lot to be

desired, judging from the general perception that
cheating in exams is not uncommon.
D
E
For instance, for the Econ exam in question, I have

heard that students are allowed to bring their
backpacks into the exam room and they are
expected to use their own paper for the exam. So
students can easily open their bags and pull out
papers during the exam. How can the invigilator
ensure that the students do not have a sheet of notes
or prepared answers hidden underneath the blank
sheets? Also, often there is only one invigilator
inside the exam room and sometimes the room is left
unattended due to various reasons. <<This example
was not cited at the meeting but I choose to leave it
in as an illustration.>>
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3.
K
That should include who should be involved in the

investigation of the case, who should write the report
and sign it, collection of evidence, the process it
should go through, when should the parents be
involved; protection of witnesses; appeal procedures,
etc.
N
O
Process
The School should set up clear and detailed
procedures and guidelines for handling suspected
cheating cases, and the process should be fair and
transparent.
Lax invigilation standards
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34
The Meeting was attended by Dr Faunce, Alexander,
McQuillan and Mulcahy of CIS, and the defendants, Anney Lay, Danny
Lay, Teresa Ko, Eric Wong and Rosa Ling, some of the concerned
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parents.
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A
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35
After the Meeting, Dr Faunce at 4:11 pm wrote an email to
the 2nd defendant, thanking her for organizing the Meeting and asking her
C
I deeply appreciate the quality of conversation and the genuine

concern for our school and students. Justin Alexander, Claire
McQuillan, Brian Mulcahy and I met earlier this afternoon for
an hour to discuss how best to proceed. I am writing to tell you
that we have decided that, under these most unusual
circumstances, it will be best to revisit the case in detail and
that I will be present at any and all meetings.I sincerely hope
that this further thorough review will yield greater clarity on the
basis of which we can take any appropriate further actions.I
look to all of you as constructive parents at this most difficult
moment in the life of the school, and if you have further
thoughts or advice, please send them along.
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At 4:13 pm, the 2nd defendant emailed to the 1st defendant,
36
December Meeting had gone very well and she felt a great relief that it
37
While the school was revisiting the matter, further emails
ensued among the defendants and the parents.
B4.
38
Between 9 and 16 December 2011

On 9 December 2011, the 2nd defendant at 11:12 pm emailed
Jenny Chua, Eric Wong, Anney Lay and Danny Lay, copied to the 1st
defendant, sharing Teresa Kos view that the girls should meet Dr Faunce
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Anney Lay, Rosa Ling, Teresa Ko and Jenny Chua, stating that the 8
was now over and the ball was now in Dr Faunces court.
C
D
to forward his email to other parents who were present. He said :
individually as soon as possible. This eventually led to the 14 December

Meeting.
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39
At 11:27 pm on 9 December 2011, the 2 nd defendant emailed
Dr Faunce suggesting that a general circular might be issues to remind the

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40
On 10 December 2011, Teresa Ko at 7:54 am emailed to
Anney Lay and the 2nd defendant expressing her view that the girls should
be seen by Dr Faunce as soon as possible and that the girls should not be
N
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41
At 9:12 am, Anney Lay emailed to Teresa Ko, copied to the
frustration at CIS and Dr Faunce having done nothing so far.

On 10 December 2011 at 11:49 am, Dr Faunce emailed the
defendants and Alexander, replying to the 2
nd
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December 2011, and expressing his appreciation of the defendants.
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43
On 11 December 2011, Anney Lay emailed to the
defendants, Teresa Ko, Danny Lay, Jenny Chua, Eric Wong, Rosa Ling,
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they all went and if Teresa Ko also went.

Q
44
On 12 December 2011, Anney Lay at 11:07 pm emailed Dr
Faunce, copied to Alexander, Jenny Chua, Eric Wong, Christina

Wong/Chui King Wong, Teresa Ko and Danny Lay, asking if the school
had completed the investigation and what the result was. Dr Faunce
replied at 11:13 pm stating that no hour was too late for a matter of this
defendants email of 9
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stating that the girls had decided that they would only go to the meeting if
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prepped.
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of dishonesty.
defendants, Jenny Chua, Eric Wong and Danny Lay, expressing her
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students to observe academic honesty and warn them of the consequences
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importance. He also stressed the importance of hearing the girls in order

to conclude the matter otherwise it would mean an incomplete process.
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45
On 13 December 2011, the 2nd defendant emailed to Anney
Lay, Teresa Ko, Jenny Chua and Eric Wong, stating that it was not about
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something bigger than individual interests and was about core values.
46
with Lok Lok and her mother Christina Wong, Danielle and her mother
Anney Lay, Laura and her mother Jenny Chua. Teresa Ko also attended.
pm, Anney Lay emailed Teresa Ko, Jenny Chua, Christina Wong, Rosa
Ling, Eric Wong, the defendants and Danny Lay, summarizing what had
47
On 15 December 2011, Dr Faunce sent the schools decision
to Jenny Chua, Anney Lay and Christina Wong, stating that they had
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F
At the 14 December Meeting, Dr Faunce and Alexander met
taken place at the meeting between the girls and the school management.
four girls against the plaintiffs or parents against parents. It was about
The transcripts of the meeting were adduced as evidence below. At 7:47

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st
decided that there were no grounds for concluding that the 1 plaintiff
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cheated.
48
The parents were dissatisfied.
At 3:52 pm, Anney Lay
emailed Jenny Chua, Christina Wong, Teresa Ko, Eric Wong, Danny Lay,
Rosa Ling and the defendants, attaching the schools decision letter and
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expressing her dissatisfaction and her view that the school had already
concluded the case. At 7:26 pm, Jenny Chua emailed Dr Faunce, copied
to Anney Lay, Christina Wong, Alexander and Teresa Ko, expressing
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dissatisfaction at the schools conclusion that there was no cheating by

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the 1st plaintiff despite the account from a student who said the 1st plaintiff
had taken notes from his school bag, held the notes under the desk and
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49
copied from the notes.
D
E
On 16 December 2011, the 2nd defendant at 00:30 am
emailed Dr Faunce, copied to Teresa Ko, Jenny Chua, Eric Wong, Danny
Lay, Anney Lay, Rosa Ling and the 1 st defendant (the 16 December
Email) :
F
G
As I read your letter and your recent emails relating to the

meeting with the witnesses, I cant help but think that you
might have lost sight of the core issues here. To help you recap
the key issues, I attach herewith the notes that I have prepared
for the concerned parents meeting with you and your staff on
8 Dec. The crux of the problems is the perception issue the
perception that it is okay to cheat in order to get good grades;
the perception that if ones dad is on the Board or a friend of
someone powerful, then he/she is untouchable and can get
away with it even if he/she cheats at exams; the perception that
the Head Boy who has cheated in exams is allowed to
continue to draft the Honour Code.. In my opinion, what you
have done has not helped at all. Instead, these might fan the
flame of rumours against the Schools reputation, and along
with it that of Jonathan.
You have suggested again and again that the parents and
students involved should meet and shake hands. Your
intention is good but there is a serious misconception here. It is
not something personal, it is not the 4 girls against the twins or
these parents against those parents. This is not a case of us
versus them. We have taken the time to write and meet with
you and your staff NOT to get Jonathan and his twin sister into
trouble or to damage his (their) reputation, but to urge the
school to take action to deal with this serious perception issue
concerning the core values of academic integrity, honesty and
honour. We are not seeking individual interest but the good of
CIS and its students and alumni. We are more worried about
the Schools reputation and credibility. We care about the kind
of values that the school is instilling in its students, our
children. We believe we speak for most parents when we say
that we are not so concerned whether CIS attains the highest IB
scores, or sends its students to the best universities and
colleges, as much as we are concerned with what kind of values
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and moral education our children are receiving at this

institution. We believe that in this case an analogy should be
drawn with the legal system, in which there is a strong principle
that justice must not only be done, but seen to be done. This
will engender faith in the system. It calls for the establishment
of a set of sound procedures for dealing with cases like this and
the timely communication of the outcomes of these processes
to the parties involved, to reassure them that something has
been done and that the matter has not been ignored. The lack
of transparency risks sending a wrong message to the kids that
honesty and integrity are not issues that need to be taken
seriously.
B
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B5.
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50
On 16 December 2011, Dr Faunce and Alexander issued a
circular to all secondary school parents of CIS. After reciting the history
1.
The circular and thereafter
of the incident, it pointed out two lessons to be learnt :
Student Accountability. As students mature and move

through their years in secondary education, they can be
expected to meet progressively higher expectations and
to assume greater responsibility for ensuring the
integrity of their academic work. We also share the
commonly held view that individuals in leadership
positions have an extra degree of responsibility in this
regard. There is no doubt in our minds that Jonathan or
other student leaders must be held accountable for their
actions. In my years at CIS the school has never
avoided difficult cases or given special consideration to
students on the basis of their year level or prominence
in the school community. At the same time, we will
never punish a student unjustly or bow to pressures of
rumor. As is the case with his peers, Jonathan Lu has
sought to embody the very best qualities that are
contained in the CIS Mission Statement. He received
strong support in the process leading to his selection as
Head Boy, which was conducted in total conformity to
the system that has been in place for years, and he has
served as a dedicated and principled leader. Does this
mean that he is in any way above the law?
Absolutely not, and he, along with all members of our
community will continue to be held to the same
standards. This leads to the second lesson to be learned.
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2.
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51
Caring enough to make CIS a better place. We

applaud the students who had the courage to share their
concerns with the teacher. As CIS seeks to embed a
culture of deep and consistent academic honesty, it is
essential that students feel safe and supported in
bringing forward their concerns. It is our expectation
that in each case the teacher will receive such concerns
with courtesy, tact and professionalism, and also that
they will follow-up with diligence. Consistency of
invigilation and exam room conditions is a priority of
the Secondary leadership.
It ended with this plea :

As noted at the outset, this open exposition of a particular case
involving questions of academic honesty is a rare exception to
the rule of confidential treatment of such matters, which are an
integral part of the lives of educators and parents. We expect
that each parent and each teacher will set high standards, both
for themselves and for our students, through personal example
and explicit teaching. We also know that as parents and
teachers we seek to protect as we educate. This is arguably the
most important work that we do with young people, and cases
such as the one discussed here or others we frequently meet in
our pastoral counseling are best handled out of broad view. We
end this letter, therefore, with a plea to parents to try to
understand the policies and processes in place, to offer
constructive criticism, and to support the work that our teachers
carry out with diligence and compassion.
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52
What followed were further email exchanges among the
parents and the defendants. The last one was written by the 2 nd defendant
at 9:13 am on 19 December 2011 to Rosa Ling, copied to Anney Lay,
Jenny Chua, Teresa Ko, Danny Lay and the 1 st defendant, commenting
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that she thought Dr Faunce had tried to address the issues that the parents
had raised as their shared concerns although their views might differ. She
thought that was a step forward and Dr Faunce had at least done
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something.
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A
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D
C.
QUALIFIED PRIVILEGE AT TRIAL
C1.
The defendants case
53
Against the above factual backdrop, the defendants advanced
their case of qualified privilege based on the existence of a common

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interest between them and the recipients of the Emails and the Summary.
Their pleaded case is contained in [20] of the Amended Defence.9
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54
all the offending publications. However, for the purposes of disposing of
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2 Emails.
55
In his written submissions placed before the Judge, Mr Yu
SC for the defendants summarized the common interest which they had in
publishing the 2 Emails and which the recipients had in receiving them as
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(1)
the preservation of the image and reputation of CIS;
(2)
ensuring that CIS inculcate and instill in the students the

importance of academic integrity; and
ensuring that CIS take a responsible attitude and appropriate
actions as regards cheating in examinations or rumours of
such behaviour.
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9 See Appendix 7.
the 4 December 2 Email. For convenience, we will refer to them as the
nd
(3)
The defendants pleaded case of qualified privilege covers
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the plaintiffs appeal, we only need to consider the 1 December Email and
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A
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C
C2.
The Judges determination
56
The Judge first summarised the general principles on
qualified privilege.10 He then disposed of Mr Whiteheads submissions

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on the defendants pleadings.
11
legal principles on proving qualified privilege or common interest and the
57
The Judge then turned to the surrounding circumstances
leading to the publication of the 2 Emails. He noted the jurys special

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verdicts that during an economics test held on 31 October 2011, Lok Lok
observed some suspicious behaviour on the part of the 1st and 2nd
plaintiffs; that during another economics test held on 24 November 2011,
He next discussed at some length the
authorities cited by counsel.12
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Lok Lok, Laura, Danielle and Joyce, observed certain suspicious behavior
of the 1st and 2nd plaintiffs as described by Lok Lok, Laura and Danielle in
the taped transcript of the 14 December Meeting; that rumours were
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wide-spreading among the students of CIS that the 1 st plaintiff was

suspected of cheating but got away with it because his father was a
member of the Board of Governors of CIS; and that such rumours had
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reached some parents including the 2nd defendant.13 Significantly, the

Judge highlighted the following uncontroversial facts, although they were
not specific findings by the jury :14
(1)
Dr Faunce confirmed that issues relating to values, including
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academic honesty, had been aired throughout the years in

council meetings of CISPTA. He also confirmed that if a
10 [10] [17] of the Decision.
13 [50] of the Decision.
14 [54] [56] of the Decision respectively.
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parent heard rumours of the sort in the present case, it was

entirely correct for the parent to bring it to the chairman of
a general concern for the well-being of the school, but not if

it has to do with bringing an individual infraction.
(2)
relationship is so close that Dr Faunce described it as a

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partnership and had reduced that relationship into a written

parent-school partnership agreement.
(3)
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During the course of the operation of CIS as a very

partnership, an identity or relationship recognised as the
current), their parents and their teachers.
Dr Faunce
confirmed that there is within the CIS Community a strong

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sense of belonging and wide concern for the well-being of

the school in general.
CIS Community evolved among the students (past and
successful school and the development of this parent-school
CIS has also tried its best to be open-minded and welcomes

parental involvement and contributions. The parent-school
CISPTA for him/her to raise with the school management as
58
The Judge next referred to Mr Yus formulation of the
common interest relied on by the defendants as set out in [55] above. He
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then noted three important points before analysing the issue of common
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interest :
58.
First, it is important to distinguish between this

common interest which Mr Yu argues was held by the
Defendants in common with the 13 parents from the
various concerns which the 2nd Defendant held (or were
found not to have held) ought to be addressed by the
school management (question 3(e) to the jury), and the
hope which the Defendants held (or were found not to
have held) when sending the 1 December Email to Ken
Pemberton and the 4 December 2nd Email to the head of
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Year 13 and Anney Lay (question 3(f)). Second, it is

important to note that the concerns and hope were those
of the Defendants only, not of the 13 parents; while the
common interest is an interest which the Defendants say
they held in common with the 13 parents. Obviously,
the contents of the common interest, concerns and hope
were not identical. Third, it is important to bear in mind
the differentiation between the function of the judge and
the function of the jury. What were the concerns and
hope held, or not held, by the Defendants are primary
facts to be found by the jury. What was the common
interest and whether it was held by the Defendants with
the 13 parents is a question for the court to decide based
on the primary facts and inference to be drawn from
those facts. While the jurys finding that the Defendants
did hold such concerns and hope supports the existence
of common interest, a negative finding has an adverse
impact against the existence of common interest but
does not necessarily exclude its existence.
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59
The Judge then observed :

59.
It is not in dispute that CIS is an expensive and

prestigious school. If there is no direct evidence of
such, this fact could readily be inferred from the
background of the 3rd Plaintiff, the Defendants and
parents who gave evidence. Parents who send their
children for education in this school must have been
attracted by its reputation and the quality of the
education it has to offer. They must have high regard
for the reputation of CIS and would jealously protect
that reputation. I think any parent in any school, not to
mention parents who send their children to this
expensive and prestigious school, would consider
academic integrity a basic value to instill in their
children and would treasure it dearly. Naturally, they
would be concerned about the schools attitude towards
academic dishonesty. Mr Yus submission is so full of
common sense and realism that it needs little
persuasion.
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The Judge cited Hansen v Hansen15 and Bridgman v Stockdale16 in
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support of his observation.

15 148 NW 457 (Min 1914).
16 [1953] 1 WLR 704.
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60
Turing to address the common interest with the three senior
members of school management, namely, Dr Faunce, Alexander and

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reputation, academic integrity, the schools attitude in dealing with
63.
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The existence of an interest held in common between

the Defendants, the 13 parents and the three senior
members of the school management is best
demonstrated by [Dr Faunces] email to the 2 nd
Defendant after the meeting on 8 December 2011 in
which he thanked the 2nd Defendant for organizing the
meeting and said that he deeply appreciated the quality
of the conversation and the parents genuine concern for
the school and students. [Dr Faunce] said he looked to
all of the parents as constructive partners at that most
difficult moment in the life of the school. He even
asked for the 2nd Defendants thoughts or advice. All
these show that the school management, the Defendants
and the 13 parents had a legitimate interest and concern
in academic integrity, the image and reputation of CIS,
and the schools attitude towards academic dishonesty.
61
interest with the thirteen parents who received the 2 Emails. 17 For the
75.
For all of the above reasons, I find that academic

integrity, preservation of the image and reputation of
CIS and the schools attitude towards academic
dishonesty was an interest held in common among the
Defendants, the three senior members of school
management and the 13 parents at least at or around the
time of publication of [the 2 Emails].
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The Judge then considered in some details the common
reasons that he gave, he concluded :
1 December Email. The Judge then had this to say :
Mulcahy, the Judge remarked that they all had interest in CISs
academic dishonesty and must have an interest in receiving the
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62
The Judge next discussed the common interest with Ken
Pemberton.18 As noted, the defendants sent the 1 December Email to him

C
D
acknowledged the well established proposition that that A will be liable
defamed C, he sends it in mistake to D, even thought in the latter case the

received and read by B.
19
was sent to him not solely because of his mistaken identity as CISPTAs
The Judge then considered the common interest with the
then current president of CISPTA, Barbee Chuidian.20 Mr Whitehead

argued that the president of CISPTA had no duty or interest to receive the
evidence that CISPTA had no jurisdiction in matters concerning student
discipline or academic dishonesty; and that it would be inappropriate for
the Defendants to raise an individual case with CISPTA. The Judge did
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not accept the argument.
He said Dr Faunce had unequivocally
confirmed that issues relating to values, including academic integrity, had

always been aired throughout the years in council meetings of CISPTA
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1 December Email anyway because it was Dr Faunces unchallenged

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defendants.
63
He therefore found that he shared the common interest with the
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However, he found that the 1 December Email
president but also because in his capacity as parent of a Year 13 student.

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by mistake to C, or if, intending to send to B a letter in which he has

letter would have been published on a privileged occasion had it been
mistakenly believing that he was still CISPTAs president. The Judge

if, intending to send to B a letter in which he has defamed B, he sends it
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and that it was entirely correct for a parent to bring such issue to the
CISPTA chairman for him to raise with school management, provided it
19 Gatley on Libel and Slander, 12th Edition, [6.18].
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A
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had nothing to do with individual infraction.
Having read the 1
December Email, coupled with the jurys finding of the 2 nd defendants

C
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was to raise the issue of academic integrity for the well-being of CIS, the
damage. The main purpose was not to target the 1 st and 2nd plaintiffs
So the president of CISPTA surely had an interest in
Judge further held that as Barbee Chuidian was also a parent of a Year 13
64
The Judge then proceeded to deal with a number of
subsidiary points taken by Mr Whitehead.21 Not all of them are before us.
We will consider those which are shortly.
Turning to the 5th Offending Words, the Judge noted that the
formed part of the circumstances for the 4 December 2 nd Email. There

4 December 1
st
defendants concerns and hope to Questions 3(e), (f) and (g); and (c) the
senior members of the school management and the 13 parents.
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22
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Email; (b) the jurys adverse findings about the
Judges finding of a common interest among the defendants, the three

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circumstances surrounding the publication of the 1 December Email also

were however three changes in circumstances : (a) the publication of the
65
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Email.
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common with the defendants to receive the 1 December Email. The

student, she also had a common interest in that capacity to receive the
the school the existence of the rumours and the need to contain the
individually.
two concerns and lack of malice, he found that the purpose of the Email
schools attitude towards academic dishonesty, to bring to the attention of

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66
The jury found that the intervening 4 December 1st Email
was published with malice. The Judge accepted that the finding of malice
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publisher has departed from the interest which he had earlier held in
1st Email with malice 36 minutes before the 4 December 2 nd Email on the
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By answering Questions 3(e), (f) and (g), the jury
respectively found that :

1 the 2nd defendant, in sending the 4 December 2 nd Email, did
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management of CIS :
a the rumours would send a very unhealthy message to
had in the school management;
b they would tarnish the image of CIS;
stop the rumours from circulating and openly make it
clear that the school was fully committed to uphold
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moral and academic disciplines and assert the core

values of CIS;
2 the 4 December 2nd Email was not sent or forwarded by the
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defendants to Mulcahy and Anney Lay with the hope that the
school management would properly address the defendants
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the students and erode the confidence that the students
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not hold the concerns which ought to be addressed by the
c the school management had failed to do anything to

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evidence, he considered the impact of the publication of the 4 December

defendants case of common interest, insignificant.23
in a contemporaneous document is evidence which suggests that the

common with the recipients. But having regard to the totality of the
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concerns and to act to contain the damage to the reputation

of CIS;
3 the
defendants,
by
forwarding
and
publicizing
the
to Dr Faunce and staff of CIS) caused, exacerbated or

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The Judge rejected Mr Whiteheads argument that these
findings were fatal to the defendants case of qualified privilege as they

demonstrated beyond doubt that the defendants had no duty or interest in
publishing the 4 December 2nd Email. He was of the view that the
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Yu was so compelling that in the totality of the evidence these adverse
69
The Judge explained why his earlier finding that on 1
December 2011 the defendants and the parents including Anney Lay held
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and in the schools attitude towards academic dishonesty was
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a common interest in preserving the reputation of CIS, academic integrity,

significant :25
evidence in favour of existence of common interest as identified by Mr

findings by the jury dwarfed into insignificance.24
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perpetuated the damage to the reputation of the plaintiffs.
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4 December 2nd Email to a wide circle of publishees (not just
Anney Lay must have en even stronger urge to pursue that

common interest as she was the parent representative of Year
13 at the time; the mother of one of the reporting students who
saw the suspicious behaviour of the 1st and 2nd Plaintiffs; and,
as the jury found, in relation to both [the 2 Emails], that the
rumours reached many parents including Anney Lay, herself.
The Defendants, Anney Lay and the three senior members of
school management must continue to hold this common interest
when the 4 December 2nd Email was copied to and received by
Anney Lay. This factual background has a significant impact

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on my finding whether the Defendants and Anney Lay had a

common interest in the publication and receipt of the 4
December 2nd Email.
The Judge rejected Mr Whiteheads submissions on
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pleadings and the failure to call Anney Lay to give evidence. He then
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referred to the specific circumstances surrounding the publication of the 4

December 2nd Email, namely, according to the 2 nd defendants
unchallenged evidence, Anney Lay suggested to her to talk to the head of
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Year 13, who was also a parent of a student of that year and that pursuant
to that suggestion, she wrote the 4 December 2nd Email to Mulcahy and
copied it to Anney Lay. The Judge found :
115.
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It was Anney Lays and the 2 nd Defendants common

interest to draw support from the head of Year 13 for
their legitimate concerns. Having regard to the totality
of the circumstances, I find that in the pursuit of the
common interest which they had all along held since the
publication of the 1 December Email, the 2nd Defendant
must have an interest in publishing the 4 December 2 nd
Email to Anney Lay and Anney Lay must have a
corresponding interest in receiving it.
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71
In light of what he found, the Judge considered the jurys
findings against the 2nd defendant in Questions 3(e), (f) and (g) and the
finding of malice in publishing the 4 December 1 Email dwarfed into
insignificance. He found that the 2nd defendant had not departed from the
interest which she had held in common with Anney Lay since 1
December 2011.26
72
Lastly, the Judge concluded :27
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118.
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Given the proximity in time between the 1 December

email and the 4 December 2nd Email, the common
background and surrounding circumstances, the
considerations applicable to [the 4 December 2nd Email]
are the same as those applicable to the 1 December
Email. For the same reasons, I find that the 2 nd
Defendant and Anney Lay held the same common
interest in sending and receiving the 4 December 2 nd
Email and that communication was protected by
qualified privilege.
D.
DISCUSSION ON QUALIFIFED PRIVILEGE
D1.
Two broad grounds of appeal
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oral submissions :
1 The defendants pleaded case of qualified privilege in the
formulation as the latter was not their pleaded case.
2 Even if the pleading point is not established, there was no
by the defendants and receiving the same by the recipients.

In this respect, the Judge had made a number of errors.
We will first consider the pleading point.
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D2.
The pleading point

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Referring to the defendants pleaded case in sub-paragraph
(14) to (15A) of [20] of the Amended Defence, Mr McCoy submitted that

the only pleaded defence was the common interest of containing damage
common interest and reciprocity in publishing the 2 Emails
Amended Defence was materially different from Mr Yus
The plaintiffs raised a total of 22 grounds of appeal in their
notice of appeal. Two broad points arose from Mr McCoys written and
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to the reputation of CIS. As pleaded there is in fact no basis to argue, as

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Mr Yu did in his written submissions, that academic integrity and proper

disciplining was a common duty or interest. The Judge therefore erred in
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75
Mr McCoy further relied on Mr Pows statement to the
Judge that his case on qualified privilege was based on the particulars as
pleaded and how he formulated the questions to the jury on matters
pleaded case. Mr McCoy therefore submitted that the Judge ought to
have proceeded on the only basis that the legitimate corresponding
school.
When the Judge accepted at [59] of the Decision Mr Yus
submissions as full of common sense, he failed to distinguish and analyse

containing damaging rumours as opposed to academic integrity.
Mr McCoy went on to complain that the Judge erred when he approached
Yus formulation without analysis; and that the Judge had failed to
identify and properly analyze the common interest relied on by the
76
Before the Judge, Mr Whitehead argued that that Mr Yus

However,
found that the pleadings were adequate.28 The pleading point and the
28 [26] and [32] of the Decision.
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Mr Whiteheads argument was emphatically rejected by the Judge who

arguments following from it now taken by Mr McCoy is in fact another
formulation of common interest had not been pleaded.
interest or duty was the containment of the damaging rumours by the
pertaining to qualified privilege, which was based on the defendants
defendants.
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Yus formulation of common interest.
and determined common interest in the way as he did and accepted Mr

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failing to appreciate that the pleaded defence is materially different to Mr
the materiality of a pleading of qualified privilege on the basis of

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attempt of running Mr Whiteheads same argument which failed below.

For the reasons we give below, Mr McCoys attempt must also fail.
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The purpose of pleadings and importance are well known. 29
They need no repetition here.

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plead the defence and that he should allege and prove the facts and
circumstances which he claims bring him within the protection of the
under attack is in subparagraph (14) to (15A) of [20] of the Amended
Defence. They are reproduced here for easy reference :
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privilege : Gatley.30 The defendants pleaded case of common interest
who wishes to rely on the defence of qualified privilege must specifically
(14)
In the case of defamation, a defendant
(15)
The 2nd Defendant considered that there were 3

particular issues of concern which ought to be properly
addressed by the school management of CIS, namely, (i)
the said rumours would send a very unhealthy message
to the students and erode the confidence that the
students had in the school management, (ii) they would
tarnish the image of CIS, and (iii) the school
management had failed to do anything to stop the
rumours from circulating and openly make it clear that
the school was fully committed to uphold moral and
academic disciplines and assert the core values of CIS.
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nd
Accordingly, the 2 Defendant, with the support of the

1st Defendant, sent the 1 December Email to Ken
Pemberton and Fanny Wong (Ken Pemberton being the
Former President of the CISPTA Chinese International
School Parent-Teacher Association (CISPTA) but
whom the Defendants thought were was still the
President at the time when the 1 December Email was
29 For some recent judicial remarks, see, for example, Kwok Chin Wing v
21 Holdings Ltd (20130 26 HCFAR 663, per Ma CJ at [21]; and Sinoearn
International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR
632, per Ribeiro PJ at [34]. Mr McCoy also referred us to similar
remarks by the English Court of Appeal in Nicholas Jones v MBNA
International Bank, unreported, 30 June 2000, per Peter Gibson LJ at
[52].
30 Supra, [27.25] and [27.26].
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sent) in the hope that Ken Pemberton would bring up

the aforesaid concerns with Dr Theodore Faunce and
that the school would act to contain the damage to the
reputation of CIS and handle the whole issue
appropriately.
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(15A) The 1 December Email, 4 December 1 st Email,

4 December 2nd Email and 6 December Email were
subsequently sent or forwarded by the Defendants to the
President of the CISPTA, relevant staff or teachers of
CIS and a number of parents of Year 13 students of CIS
with the hope that the school management would
properly address the aforesaid legitimate concerns and
act to contain the damage to the reputation of CIS.
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Subparagraph (14) is based on the rumours pleaded in
subparagraph (13), namely, the 1st plaintiff was suspected of having

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of the Board of Governors CIS. As pleaded, academic dishonesty and the

schools perceived failure to properly deal with it plainly form the crux of
arising from the rumours which the school management ought to properly
address :
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1 Implicit in the concern pleaded in sub-subparagraph (i) is
academic dishonesty and the bad influences on the students,

which the school management ought to address. This is in
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2 The concern pleaded in sub-subparagraph (iii) includes two

matters. The first is the school managements failure to stop
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damage caused by the rumours, which is Mr Yus first

formulation of common interest.
3 The second matter pleaded in sub-subparagraph (iii) is the
the rumours. Subparagraph (14) then goes on to plead three concerns
the rumours. Another way to put it is failure to contain the

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cheated in a test but he got away with it because his father was a member
substance Mr Yus second formulation of common interest.

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school managements failure to openly make it clear that the

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school was fully committed to uphold, among other things,

academic disciplines. The second matter is plainly based on
academic dishonesty, which the school management ought to

deal with. This is in substance Mr Yus third formulation of
common interest.
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79
Email to Ken Pemberton, the defendants hoped that he would bring up
contain the damage to CISs reputation. Another is to handle the whole

issue appropriately. On a proper reading, the whole issue is plainly not
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confined to containment of the damage to CISs reputation; otherwise it

would be a mere repetition. It must also include all the concerns pleaded
in subparagraph (14).
80
Subparagraph (15A) refers to the defendants same hopes
pleaded in subparagraph (15), although in a reverse order.
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81
In our view, Mr Yus formulation encapsulates and attenuates
the essence of the defendants pleaded case of common interest. There is
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rejecting Mr McCoys pleading point and all the arguments based on it.
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Dr Faunce and that the school would do two things. One is to act to
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Subparagraph (15) pleads that in sending the 1 December
no inconsistency between the two as contended. We have no hesitation in

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the aforesaid concerns, that is, those pleaded in subparagraph (14), with
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the perceived failure on the part of the school in tackling
For completeness, we also reject Mr McCoys submission
that the Judge, having failed to resolve which alleged common interest
was engaged, never properly analysed whether the circumstances resulted
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in a corresponding duty by the recipients. His submission is based on the

false premise that the Judge never made a clear identification of what was
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based his analysis on the common interest as per Mr Yus formulation.

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D.3
Common interest and reciprocity

H
D3.1 Some basic propositions

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Qualified privilege stems from the public interest to protect
free speech.
As Lord Nicholls explained in Reynolds v Times
Newspapers Ltd [2001] 2 AC 127, at p 195A B thus :31

The essence of this defence lies in the laws recognition of the
need, in the public interest, for a particular recipient to receive
frank and uninhibited communication or particular information
from a particular source. This is the end the law is concerned
to attain. The protection afforded to the maker of the statement
is the means by which the law seeks to achieve that end. Thus
the court has to assess whether, in the public interest, the
publication should be protected in the absence of malice.
For an occasion to attract qualified privilege, there must
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exist between the maker of the statement and the recipient some duty or
interest in the making of the communication. Lord Atkinson put it in
Adam v Ward [1971] AC 309, at p 334 in these terms :
85
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We next turn to the points taken by Mr McCoy on common
interest and reciprocity.
the legitimate common interest. The Judge had clearly accepted and
A privileged occasion is an occasion where the person who

makes a communication has an interest, or a duty, legal, social
or moral, to make it to the person to whom it is made, and the
31 See also Cheng v Tse Wai Chun (2003) 3 HKCFAR 339, where Lord
Nicholls referred to his statement quoted above.
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person to whom it is so made has a corresponding interest or

duty to receive it. This reciprocity is essential.
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In Reynolds v Times Newspapers Ltd,32 Lord Nicholls also

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stressed :
The requirement that both the maker of the statement and the
recipient must have an interest or duty draws attention to the
need to have regard to the position of both parties when
deciding whether an occasion is privileged.
87
of qualified privilege is to be determined objectively : Adam v Ward, ibid.

The interest must be real on an objective assessment. It is not sufficient
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that the maker of the defamatory statement honestly believes that he has a
legitimate duty or interest to make it or the recipient to receive it,
although such belief may have a bearing on malice : Hebditch v
88
To recap, the common interests relied on by the defendants
are :
1 the preservation of the image and reputation of CIS;
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2 ensuring that CIS inculcates and instills in the students the

importance of academic integrity; and
3 ensuring that CIS take a responsible attitude and appropriate

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actions as regards cheating in examinations or rumours of

such behaviour.
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32 Ibid.
The existence of the common interest to found an occasion
MacIlwaine [1894] 2 QB 54, per Lord Esher, MR at p 59.
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89
Mr McCoy took a number of points in arguing that no such
common interests existed between the defendants and the recipients of the
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D3.2 Academic integrity
90
The first point taken by Mr McCoy concerns the important
question whether academic interest can properly constitute common

interest in the circumstances of the present case.
91
Mr McCoy argued that academic integrity is of itself not
capable of forming a common interest in the present case. He argued that

the Judge fatally erred in failing to appreciate that in the circumstances of
was no question of the 1st and 2nd plaintiffs actually cheating and getting
away with it with influence, as alleged in the defamatory statements.
and no defence of justification was ever pleaded. There was therefore
never a legitimate common interest in protecting academic integrity. Put
academic dishonesty in the form of cheating by the 1 st and 2nd plaintiffs,
the need to protect academic integrity did not arise. With respect, this is
too narrow a view about academic integrity.
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92
Academic integrity embodies the core values of an
educational institution.
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the present case, there was no issues of academic dishonesty since there
bluntly, Mr McCoys argument is that since there was factually no

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Such statements were all held to be defamatory and without factual basis;
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2 Emails.
Such core values range from promotion and
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maintenance of high academic standard, to perseverance and honesty in

the pursuit of knowledge and research, and to avoiding academic
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misconduct such as cheating or plagiarism.
When it comes to the
protection of academic integrity for CIS, the fact that the 1 st and 2nd
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the fact that their behaviour, as confirmed by the four students three of
wide-spread rumours and concerns of the parents. The circumstances
truth and if necessary to take appropriate steps to prevent academic

This gives rise to the common interest for protecting
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D3.3 Disregarding the jurys special verdicts
93
Mr McCoy cited the well established proposition that the
question whether the occasion is privileged, if the facts are not in dispute,
is a question of law only, for the judge, not for the jury; and if there are
question of fact in dispute upon which this question depends, they must
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be left to the jury, but, when the jury have found the facts, it is for the
judge to say whether they constitute a privileged occasion : Hebditch v
MacIlwaine, supra, per Lord Esher at p 58; Adam v Ward, supra, per Lord
He complained that the Judge had erred in
disregarding the jurys special verdicts pertaining to the publications of

the 2 Emails, which rendered his finding that they were privileged
unsustainable. Mr McCoy had the following jurys special verdicts in
Finlay LC at p 318.
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academic integrity for CIS.
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school management to look into the matter with a view to finding out the
dishonesty.
the time arouse suspicion of cheating among the students which prompted
then prevailing clearly called for immediate action to be taken by the
plaintiffs had not cheated is beside the point. For it does not detract from
whom came forward to relate the matter to the school management, did at
mind.
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94
When the 2nd defendant sent the 1 December Email to the 8
unrelated parents, the jury found that :

(1) she did not hold the concern which ought to be addressed by
CISs management, namely, the school management had
failed to do anything to stop the rumours from circulating
to uphold moral and academic disciplines and assert the core

values of CIS;33 thereby rejecting the defence case pleaded in
(2) the
defendants,
by
forwarding
and
publicizing
the
1 December Email to a wide circle of publishees (a) caused,

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CIS; and (b) caused, exacerbated or perpetuated the damage

to the reputation of the plaintiffs, 34 thereby finding in favour
of the plaintiffs case pleaded in their Reply.
95
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When the defendants sent the 4 December 2nd Email to
Mulcahy and Anney Lay, the jury found that :

(1) she did not hold the concern which ought to be addressed by
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very unhealthy message to the students and erode the

confidence that the students had in the school management;
(b) the rumours would tarnish the image of CIS; and (c) the
CISs management, namely, (a) the rumours would send a

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exacerbated or perpetuated the damage to the reputation of
[20(14)(iii)] of the Amended Defence; and
and openly make it clear that the school was fully committed
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school management had failed to do anything to stop the

rumours from circulating and openly make it clear that the
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school was fully committed to uphold moral and academic

disciplines and assert the core values of CIS; 35 thereby
33 See the jurys answer to Question A(3)(e)(iii).
34 See the jurys answer to Question A(3)(i).
35 See the jurys answer to Question C(3)(e).
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rejecting the defence case pleaded in [20(14)(i), (ii) and (iii)]

of the Amended Defence;
Email to Mulcahy and Anney Lay with the hope that the
school management would properly address their concerns
and act to contain the damage to the reputation of CIS,

Amended Defence;
December 2nd Email to a wide circle of publishees caused,

exacerbated or perpetuated the damage to the reputation of
the plaintiffs,37 thereby finding in favour of the plaintiffs
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96
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Mr McCoy submitted that the jury had clearly found that the
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Emails. The occasions of publishing the 2 Emails were not privileged.

The Judge erred in failing or refusing to give effect to the jurys findings,
mischaracterizing the same as dwarfing into insignificance. He failed
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to give proper regard to the jurys special verdicts : Grobbelaar v News

Group Newspaper Ltd [2002] 1 WLR 3024. Relying on Kime v Hamilton
Radical Electric R W Co 64 DLR 191, Mr McCoy submitted that the
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Judge cannot supplement the jurys findings and thereby reversing them.
With respect, we disagree with Mr McCoys submissions.
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97
As can be readily seen, the jury made specific findings on (a)
the defendants subjective belief and hope at the time of the publication of
36 See the jurys answer to Question C(3)(f).

37 See the jurys answer to Question C(g)(ii).
case pleaded in their Reply.
defendants did not have the common interest as pleaded in sending the 2
(3) the defendants, by forwarding and publicizing the 4
36
thereby rejecting their pleaded case in [20(15A)] of the
(2) the defendants did not send or forward the 4 December 2 nd
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the 2 Emails; and (b) the effect of the circulation of the 2 Emails on the
damage to the plaintiffs reputation.
98
However, as said, whether or not an occasion is privileged is
to be determined objectively. The defendant needs only prove the facts

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and circumstance necessary for the existence of the privilege.
personal belief or hope is simply irrelevant : Gatley, supra, [33.24]. Here,

the jurys special verdicts on the defendants subjective belief or hope, or
immaterial to the consideration of qualified privilege. Thus analysed, the
Judge did not commit any error when he said that the jurys special
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verdicts, objectively, dwarfed into insignificance in the overall

circumstances of the case. The Judge did not supplement or reverse the
jurys special verdicts as contended. He simply did not give any weight
perfectly entitled to do so as a matter of law.
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the lack of it, may be relevant to the question of malice. But they are
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His
to them in considering the question of qualified privilege. And he was

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As to the effect of the circulation of the 2 Emails on the
plaintiffs reputation, it is irrelevant to the existence of common interest

and reciprocity between the defendants and the recipients.
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D3.4 Disregarding unchallenged material evidence of Dr Faunce and

Alexander
100
Mr McCoy complained that the Judge had erred in
disregarding the following unchallenged material evidence which clearly

shows that the defendants had no duty or interest in sending the 2 Emails
and the recipients had no corresponding duty or interest in receiving the
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same :
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(1) From Dr Faunce : (a) the defendants committed an error in

judgment in sending the 1 December Email directly to the
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should individual concerns be shared with a PTA; 38 (b) if a

thief at the school, it would be inappropriate to raise the
individual case with a PTA, but that matter should be raised
no jurisdiction in matters concerning student discipline or
allegations of academic dishonesty are to CIS, and the
then the deputy head of academics and then the head of

make them feel comfortable and safe in classroom and at
school, allegations of academic dishonesty should be raise
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with the appropriate teacher or administration within the

school and be treated on a confidential basis because both
the person who was being accused and the accuser had the
report to the classroom teacher, then the head of department,

secondary;41 (b) for the protection of the students and to
(2) From Alexander : (a) the proper channels of reporting

disciplinary procedure at CIS involved the following steps :
with the administration of the school;39 and (c) CISPTA has

academic honesty.40
President of the CISPTA because under no circumstances

particular student were rumoured to have stolen or been a
right to confidentiality, which was really important to create

an atmosphere of trust and care in the classroom;42 (c) it is
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important to deal with matters involving students and

behavioural and disciplinary issues on a confidential basis.43
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38 Day 4, p 126 line 17 to p 127 line 7.

39 Day 4, p 127 lines 12 19.
43 Day 4, p 39 lines 6 to 10.
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101
Mr McCoy also complained that Judge had failed to give any
or any adequate reasons for disregarding such unchallenged material

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Again, we respectfully disagree with Mr McCoys
103
The above evidence of Dr Faunce and Alexander must be
Faunces evidence was his first reaction to seeing the 1 December Email
and his opinion on what a parent should do if he had a complaint
concerns that the Judge had in mind, namely, academic integrity,
preservation of the image and reputation of CIS and the school attitude
towards academic dishonesty. Similarly, Alexanders evidence about the
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proper channel of reporting did not deal with the Judges wider concerns.
Dr Faunces evidence quoted above on the role of CISPTA must be
understood with the totality of his evidence in mind. As the Judge
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relating to values, including academic integrity have always been aired
to raise it with the school management, provided it has nothing to with
104
We do not consider that the Judge had disregarded Dr
Faunces or Alexanders evidence as contended. Quite to the contrary, a

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entirely correct for a parent to bring such issue to the CISPTA President
individual infraction.
pointed out at [79] of the Decision, it is Dr Fauncee evidence that issues

throughout the years in council meetings of CISPTA and that it was
understood in its proper context and in the totality of their evidence. Dr
concerning the conduct of a student. He was not addressing the wider

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submissions.
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evidence.
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careful reading of his Decision shows that he had had regard to their
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evidence as a whole and also as part of the totality of the evidence before
him in determining if the common interest and reciprocity existed.
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105
On confidentiality, Alexanders evidence might have a point
generally. However on the facts of the present case, we fail to see how it
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was observed by the reporting students. And prior to the publication of

the 1 December Email, rumours about the plaintiffs had been widewere. Realistically, confidentiality, which might otherwise be desirable,
could no longer work.
106
Finally, we do not consider there is any merit in the
submission that the Judge had failed to give reasons in disregarding the
into account the totality of the evidence. He had given a full and wellreasoned judgment on qualified privilege. The plaintiffs cannot possibly
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We now turn to Mr McCoys other arguments targeting at the
parents as recipients.
There can be no doubt that the three senior
members of school management had a duty and interest corresponding to

the defendants interest in receiving the 2 Emails. However, the parents,
qualified privilege.
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spreading already. The matters were already in the public domain, as it
complain that they did not know why the defendants succeeded on
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could possibly help the plaintiffs. The plaintiffs suspicious behaviour
unchallenged evidence of Dr Faunce and Alexander. The Judge had taken

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Mr McCoy reasoned, did not have the corresponding interest or duty to

receive the 2 Emails.
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D3.5 No authority to address the issue
108
Mr McCoy submitted that as a matter of law, only persons
who are in position of authority to address the issue have the duty or
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interested in receiving the statement do not. In this respect, he cited a

Mr McCoy submitted that were it
defamatory rumours, which is exactly the consequence of the present
of internal disciplining and on the other, parents who had no such
Emails whereas the parents did not. So, Mr McCoy complained that the
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With the greatest respect, the blanket proposition advocated
by Mr McCoy that duty or interest only exists with persons who are in
position of authority to address the issue must be rejected. As a general
proposition, if Mr McCoy were correct, it would prohibit all bona fide
communication and discussion among persons who have a common
distinction as he did.
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had a corresponding duty to protect academic integrity to receive the 2

Judge had failed to appreciate the parents role as recipients and draw the
hand, the school management who was involved in and has the authority
involvement and authority. On his analysis, only the school management
otherwise, qualified privilege would be abused for mere perpetuation of

case. Mr McCoy then went on to draw a distinction between, on the one
interest in receiving the defamatory statement. Others who are merely

number of authorities in support.44
interest but not a duty or authority to address the issue in disseminating
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44 Including Lovejoy v Whitcom 174 Mass. 586, 55 N.E 322 (1899);

Wertz v Lawrence 66 Colo. 55, 179 P.813 (1919); Wagner v Lim (1994)
22 Alta LR (3d) 169; Shelmerdine v Mewett (1993) 170 LSJS 228;
Hedbitch v MacIlwaine [1894] 2 QB 54; Cambridge v Makin [2012]
EMLR 19; Ryan v Premachandran [2009] NSWSC 1186; Angle v
LaPierre [2008] 7 WWR 600.
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and receiving the statement although it is defamatory. This goes against

the public interest that the law of qualified privilege seeks to protect,
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With respect to parents involving in discussions about
or not the occasion is privileged must be approached with the modern

social conditions in mind.
111
In determining whether an occasion is privileged, the court
has regard to all the circumstances, Reynolds v Times Newspaper Ltd,

privilege is developed to respond to the current societal needs and
conditions.
Thus the circumstances for the purposes of determining
in Reynolds v Times Newspaper Ltd put it at p 195D :

The circumstance in which the public interest requires a
communication to be protected in the absence of malice depend
upon current social conditions. The requirements at the close
of the twentieth century may not be the same as those of earlier
centuries or earlier decades of this century.
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112
It is well recognised that parental involvement in a schools
affairs is beneficial to the management and operation of the school

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overall. It is indeed a common feature among secondary schools in Hong

Kong, of which we can take judicial notice, to have a platform
established, usually in the form of a teacher-parent association, to
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supra at p 195C. As part of the common law, the law of qualified
matters concerning the school where their children are attending, whether
qualified privilege must be viewed with todays eyes. As Lord Nicholls

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110
namely, freedom of speech.
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encourage and facilitate parental involvement of the schools affairs.

When we tested Mr McCoys proposition at the hearing, he was forced to
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submit that while parents were entitled to raise matters which might
affect the schools reputation or management, such as suspected cases of
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to discuss the matters among themselves. This defies logic and common
More importantly, it also thwarts parental
parents from raising matters affecting the school with the management in
a concerted way through discussions among themselves.
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113
For the above reasons, we as a matter of principle reject Mr
McCoys proposition, whether as a general one or a specific one in an
cited by him in support of his arguments. In any event, having read the
cases, we do not think they have laid down such a blanket proposition as
Mass. 586, 55 N.E 322 (1899) which he relied on, where the publication
of the defamatory statement to persons who were under no duty or
authority to address the issue was held to be not protected by privilege.
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But equally, there are cases which go directly contrary to Mr McCoys

proposition. For example, in Bridgman v Stockdale [1953] 1 WLR 704,
which Mr Yu cited, an invigilator uttered an oral remark to the class of
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students that one of them had cheated. The court found that there existed
between the invigilator and his class of students the common interest to
ensure that the examination was carried out properly and fairly and to
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ensure that one person did not have an advantage over the others.
Plainly the students did not have the authority to address the issue of
cheating but the court held that the utterance of the remark by the
educational setting. We therefore do not see the need to discuss the cases
he contended. It is true that in some cases like Lovejoy v Whitcom 174

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involvement in the school management because it prevents concerned
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academic dishonesty, with the school management, they were not allowed
sense to say the least.
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invigilator was covered by qualified privilege. Mr McCoy submitted that

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Bridgman v Stockdale can be regarded as a case in which the publication

of the defamatory statement was fairly warranted by a reasonable
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detract from the courts finding that qualified privilege existed even
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not lay down the wide-sweeping proposition Mr McCoy now contended.
question to be determined by the particular circumstances of the case.
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114
pronouncements that he derived from the cases to support his proposition,

he has failed to appreciate (a) that time has moved on from the older
parents in school affairs put the consideration of common interest in a
context similar to the present case on a very different footing; and (2) that
sensitive question and judicial utterances in different circumstances albeit
in an educational setting do not really assist him.
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115
The facts of the present case speak for themselves. CIS
encourages parental involvement in the school affairs. CIS has always

contributions.
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The school-parent relationship is very close and
successful. Parents, as part of the wider CIS community, have a strong

sense of belonging and wide concern for the well-being and reputation of
With respect, when Mr McCoy relied on some of judicial
tried its best to be open-minded and welcomes parental involvement and

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that whether the requisite duty or interest exists is always a fact-sensitive
authorities and the current societal condition and need of involving

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of authority to address the issue. In our view, the authorities simply do

As rightly submitted by Mr Yu, all that the authorities have established is
occasion or exigency. Even assuming that to be the case, it does not

though the recipients of the defamatory statement were not in a position
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CIS in general. More specifically, through the CISPTA, issues relating to

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values of the school including academic honesty had been aired

throughout the years in council meetings of CISPTA.
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The need to
the matters concerning academic integrity clearly supports the
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116
Finally, Mr McCoy submitted that the Judge erred in failing
parents who are not in a position to fulfil the interest offends the principle
that the communication should be fairly warranted by any reasonable
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D3.6 Spreading rumours without verification
117
Mr McCoy submitted that for an occasion to attract qualified
mere interest in gossip. As the parents were not in a position to receive

the 2 Emails because they had not no authority to address the issues, the
118
Mr McCoys submissions consist of two points. The first is
the parents who have no authority to address the issue have no interest in
occasion or exigency. For the reasons we give, we reject this argument.
only reason for receiving them would be for gossip only.
to hold that publication of the 2 Emails, untrue defamatory statements, to
privilege, the interest involved must be a matter of substance and not a

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common interest relied on in the publication and receipt of the 2 Emails.
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facilitate and encourage parental involvement in CISs affairs including

defendants case that the defendants and the recipient-parents had the
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receiving the 2 Emails. That we have just rejected. The second is that
there is no interest in gossip that the law of qualified privilege protects.
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119
It is trite that the law of qualified privilege does not
recognise any interest in gossip. The law only recognises some interest
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of substance. As Higgins J explained in Howe v Lees (1910) 11 CLR 361

at p 398 :
[The] word interest ... is not used in any technical sense. It is
used in the broadest popular sense, as when we say that a man
in interested in knowing a fact not interested in it as a
matter of gossip or curiosity, but as a matter of substance apart
from its mere quality as news.
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120
The common interest must be one which the law accepts.

Generally, the common interest is a pecuniary one, but it may
be professional. However, no privilege attaches to gossip,
however interesting it may be to both the speaker and the
hearer. To be within the privilege, the statement must be such
as the occasion demands and must be to protect the private
interests of both the speaker and the person addressed.
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121
plaintiffs behaviour as seen by their fellow students. And they raised

did not find that there was an interest in gossips.
On this topic, the last point taken by Mr McCoy is that the
defendants had not taken any step to verify the truth of the rumours
concerning the plaintiffs when they published the 2 Emails. He relied on
123
There is no general proposition of law as such that qualified
privilege could not be established unless steps had been taken to verify
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legitimate concerns which the parents had in common. The Judge clearly
Cambridge v Makin [2011] EWHC 12 (QB).
The difficulty with Mr McCoys argument is that the 2
Emails were not mere gossips. They were based on the observation of the
122
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In a similar rein, Gillard J said in Middendorp Electric Co
Pty Ltd v Sonneveld [2001] VSC 312 at [215] :
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the defamatory statement : see Cambridge v Makin, supra, per Tomlinson

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LJ at [51]-[52]; Kearns v General Council of the Bar [2003] 1 WLR

1357, per Simon Brown LJ at [34]. (The position is of course different
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applies.) It really depends on the actual circumstances whether qualified
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124
Here, the 2nd defendants unchallenged evidence is that she
there is no evidence to suggest that she should not. The rumours were
then wide-spreading. Any suggestion that the defendants should take
some form of inquiry themselves. But that really fell within the exclusive
purview of the school management. The suggestion that the defendants
school management had the authority to do is unrealistic.
125
Mr McCoy submitted that the Judge erred in failing to
appreciate the position of some unrelated parents who had received the 2
Emails. For example, when Ken Pemberton and Fanny Wong received
the 1 December Email, they were total strangers to the defendants. No
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steps to verify the rumours would mean that they would have to carry out
D3.7 Publication to unrelated parents
learnt of the rumours from her daughter. She believed her daughter and
should take it upon themselves to carry out such inquiry which only the
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verification.
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for responsible journalism where Reynolds v Times Newspaper Ltd

privilege could not be established in the absence of an attempt at
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pre-existing relationship existed between the defendants and those

unrelated parents.
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126
As a matter of law, absence of a pre-existing relationship is
not fatal to the defence of qualified privilege. The authorities establish
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the proposition that the law is more ready to attach qualified privilege for
communications within an existing relationship than to those between
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Simon Brown LJ at [30]. Where no pre-existing relationship exists, it
conclusion on the question whether the occasion attracts qualified

privilege : Cambridge v Makin, supra, per Tomlinson LJ at [39].
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127
Here, contrary to Mr McCoys submission, the Judge was
fully aware that he had to consider whether there was interest as between
the fact that there was no pre-existing relationship between the defendants
and some parents.
D3.8 The 1 December Email
128
Mr McCoys complaint is directed at [76] [77] of the
Judges Decision.45 He submitted that the Judge erred in failing to apply

the principle which he had identified to the publication of the 1 December
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Email to Pemberton, because there was no plea that Pemberton was a

parent of a Year 13 student. The Judge also erred in holding that the
defendants had put in an alternative plea in [20(15)] of the Amended
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Pemberton and Fanny Wong as parents of a Year 13 student when in fact
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45 See [62] above.
Defence that the publication of the 1 December Email was made to

there was no such plea in [20(15)].
the particular groups of recipients involved. He also took into account
the circumstances surrounding the publication before coming to a
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strangers : Kearns v General Council of the Bar Council, supra, per

will usually be necessary for the court to examine by factual inquiry all
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129
This is a highly technical point devoid of merits because the
defendants did in fact plead in [20(6)] of the Amended Defence that

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Mr McCoy then submitted that the Judge erred in failing to
to the 8 unrelated parents would not contain the damage to the reputation
of CIS, but caused, exacerbated or perpetuated such damage. However,
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131
Mr McCoy complained that in determining whether the
2 Emails were subject to qualified privilege, the Judge erred in taking into
account the 8 December Meeting, which is a post-publication event.
132
Mr Yu submitted that the defendants had made it clear that
they need not rely on the events after 4 December 2011 to establish the
defence of qualified privilege.
46
that the recipients of the 2 Emails all regarded the matter as of sufficient
interest in the receipt of the communications.
admissible : see Gatley, supra, [33.24]. We agree with Mr Yu.
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46 See the defendants reply submissions before the Judge, [6].
Such evidence is
They relied on such evidence to show
importance and that, therefore, all parents involved had a common

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interest and reciprocity.
factual background and circumstances for the purposes of establishing the

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the effect on CISs reputation is irrelevant to the existence of common
D3.9 The 8 December Meeting
hold that the subsequent sending or forwarding of the 1 December Email
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Pemberton and Fanny Wong were parents of a Year 13 student.
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133
Mr McCoy then argued that if the 8 December Meeting is
relevant, the Judge erred in disregarding the evidence of Alexander that

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should be handled by CIS in a confidential manner; and Dr Faunces
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134
However,
although
the
December
Meeting
was
December 2011, describing the attending parents as constructive

parents who had legitimate interest and concern in academic integrity,
academic dishonesty.
He also expressed his appreciation of the
defendants in another email to the defendants and Alexander two days
135
When all the evidence concerning the 8 December Meeting
136
Conclusion on qualified privilege
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For the above reasons, all the arguments raised by Mr
McCoy attacking the Judges ruling that publication of the 2 Emails is

protected by qualified privilege must fail. In our view, the careful and
detailed reasoning and analysis adopted by the Judge in arriving at his
proper weight to the fact that it was unprecedented has little weight.
D4.
the image and reputation of CIS and the schools attitude towards
is properly understood, the complaint that the Judge had failed to give
unprecedented, Dr Faunce himself had written in his email dated 8
later.
41 years of education.
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the meeting was unusual and unprecedented as disciplinary matters

evidence that the 8 December 2011 Meeting was unprecedented in his
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ruling is impeccable. We agree with him entirely. We would add that the
circumstances
surrounding
the
publication
of
the
Emails
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overwhelmingly support the defendants case of qualified privilege. We

uphold the Judges ruling.
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E.
MALICE
E1.
The law
137
The starting point for a review of the law on malice is the
judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135 at p.149 to

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the immunity afforded by qualified privilege is lost if the occasion giving
For in all cases of qualified privilege there is some special

reason of public policy why the law accords immunity from
suit --- the existence of some public or private duty, whether
legal or moral, on the part of the maker of the defamatory
statement which justifies his communicating it or of some
interest of his own which he is entitled to protect by doing so.
If he uses the occasion for some other reason he loses the
protection of the privilege.
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138
Lord Diplock made it clear that knowledge of injury to a
plaintiff is not enough if the defendant is nevertheless acting in

accordance with a sense of duty or in bona fide protection of his own
legitimate interests : Horrocks v Lowe, supra at p.149G.
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Mr Yu advanced the following propositions as general
principles on malice in his written submissions and they are supported by

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the authorities :
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(a)
Whether there is malice is determined by a subjective test. It

depends entirely on the state of mind or the intention of the
publisher : Loveless v Earl [1999] EMLR 530 at 538-9;
151. The basic premise, as stated by His Lordship at p.149E to F : is that

rise to it is misused :
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(b)
For there to be malice, there must be dominant improper

motive on the part of the publisher : Horrocks v Lowe [1975]
(c)
If it can be proved that the publisher did not believe that

what he published was true, that is generally conclusive
(d)
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Positive belief in the truth of what is published will usually
misused the occasion : Horrocks v Lowe supra, at p.150 E
(e)
a way of establishing that the publisher was acting from an

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improper motive : Gatley, supra, [17.4];

(f)
The burden is on the plaintiff to establish that there was no

honest belief on the part of the publisher. Unreasonable
malice : Horrocks v Lowe supra, at p.149F to G, 150B to E;
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Gatley, [17.16] and [17.17].

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Mr McCoy did not dispute these propositions except he
submitted orally that (i) knowledge of falsity; (ii) recklessness; or (iii)

dominant improper motive are three alternative ways to prove malice.
We therefore have to examine proposition (e) at greater length. As we
belief or carelessness in arriving at belief do not equate with
Knowledge of falsity or recklessness as to the truth or falsity

of the statement is not a separate head of malice. It is simply
p.149H to 150A;
to G;
protect the publisher unless he can be proved to have
evidence of express malice : Horrocks v Lowe supra, at
AC 135 at p.149F to G, 150E to G;
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shall explain, in the present appeal, the crucial issue is the directions on
knowledge of falsity and recklessness.
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141
Before we discuss proposition (e) and recklessness, we
should also mention another aspect where Mr Yu and Mr McCoy had

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the jury that malice is extremely rare and such a finding calls for cogent
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honesty is presumed. Mr McCoy did not dispute that such direction
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trial by counsel for the defendants (at that stage, Mr Yu had not come into
the picture), it was not a point open to them on appeal.
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142
By reference to the closing submissions made on behalf of
the defendants, Mr Yu satisfied us that counsel conducting the trial had

indeed referred to the rarity of a finding of malice. In support of his
submission that a direction to such effect should be made, Mr Yu referred
defendants acting dishonestly or with the dominant motive to injure as

could have been given but submitted that as this was not a point taken at
some disagreement. Mr Yu submitted that the Judge was obliged to direct

evidence which must overcome the inherent unlikelihood of the
to HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at [70] and Horrocks v
Lowe, supra, at p.150H to 151D where Lord Diplock said :
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Judges and juries should, however, be slow to draw the

inference that a defendant was so far actuated by improper
motives as to deprive him of the protection of the privilege
unless they are satisfied that he did not believe that what he
said or wrote was true or that he was indifferent to its truth or
falsity. The motives with which human beings act are mixed...
It is only where his desire to comply with the relevant duty or
to protect the relevant interest plays no significant part in his
motives for publishing what he believes to be true that express
malice can properly be found
where conduct extraneous to the privileged occasion

itself is not relied on, and the only evidence of improper motive
is the content of the defamatory matter itself or the steps taken
by the defendant to verify its accuracy, in order to succeed
the plaintiff must show affirmatively that the defendant did not
believe it to be true or was indifferent to its truth or falsity.
Juries should be instructed and judges should remind
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themselves that this burden of affirmative proof is not one that

is lightly satisfied.
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143
Lord Diplock also alluded to an exception at p.151D to H
but it is not pertinent for present purposes and Mr McCoy placed no

reliance on it. It cannot be disputed that the Judge did not give direction
separate ground, we should examine the adequacy of the directions by the
Judge as a whole to assess whether a case of misdirection which warrants
our intervention with the verdict of the jury on malice has been made out.
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144
Coming back to the question of knowledge of falsity or
recklessness as separate heads of malice, having considered some modern

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(a)
(2002) 212 CLR 1 at [15] and [87];

(b)
Knowledge of falsity or lack of honest belief is not a

separate head of malice though knowledge of falsity is
almost conclusive evidence that the defendant had some
improper motive and it actuated the publication, Roberts v
(c)
Recklessness as to the truth or falsity of a publication, short

of wilful blindness, will not destroy an occasion of qualified
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privilege unless it is accompanied by some other state of
Bass, supra, at [78];
Mere absence of positive belief in the truth of what is

published is not malice and mere lack of belief in the truth is
not equivalent to knowledge of falsity, see Roberts v Bass
authorities on the topic, our conclusions are as follows :
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to these effects. However, in our judgment, instead of treating this as a

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(d)
mind, Roberts v Bass, supra, at [87] and [98];
Such other state of mind could be spite, ill-will, anger,
hatred, bias or unreasoning prejudice which can be

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evidenced by recklessness not amounting to wilful blindness.

The mere presence of such state of mind as one of the
Bearing in mind that the motives with which human beings

act are often mixed, it is only when the actuation by the
improper motive was so overwhelming that the desire to
comply with the relevant duty or to protect the relevant
made out : Roberts v Bass, supra, at [87]; Horrocks v Lowe,

supra, p.145C to D, 150C to E, 151A to B, 152G;
(e)
insufficient evidence is not enough to constitute malice if a

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Horrocks v Lowe, supra, p.153A;

(f)
Carelessness
of
expression, carelessness,
irrationality,
not conclusive proof of malice although it may provide

inquiries or apologise or correct the untruth when discovered
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145
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is not evidence of malice : Roberts v Bass, supra, at [103].
In light of the insufficiency of recklessness as a ground for
destroying the immunity arising from qualified privilege in the present
evidence of it in an extreme case. Mere failure to make
stupidity or refusal to face facts concerning the plaintiff is
defendant does believe in the truth of the statement :
Recklessness in jumping to conclusions which are

irrational, reached without adequate inquiry or based on
interest plays no significant part that a case of malice is
motives of a defendant is not enough to establish malice.
appeal, the judgment of Gaudron, McHugh and Gummow JJ in the High

Court of Australia in Roberts v Bass, supra, at [84] bears repetition :
In the law of qualified privilege the defendants

recklessness may be so gross as to constitute wilful blindness,
which the law will treat as equivalent to knowledge. When a
person deliberately refrains from making inquiries because he
prefers not to have the result when he wilfully shuts his eyes for
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146
fear that he may learn the truth he may for some purposes be
treated as having the knowledge which he deliberately
abstained from acquiring. In less extreme cases, recklessness,
when present with other factors, may be cogent evidence that
the defendant used the occasion for some improper motive
(our emphasis)
Their Honours referred to the judgment of Lord Esher MR in
two English authorities (Royal Aquarium v Parkinson [1892] 1 QB 431 at

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recklessness had to operate together with other factors such as
Lowe, supra, Lord Diplock could not have intended to change the law and
he only used the term reckless and indifference to truth and falsity in
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the sense of wilful blindness and His Lordships reference to lack of

honest belief meant knowledge of falsity.
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147
[95] of Roberts v Bass, supra, their Honours explained in Horrocks v
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444; Clark v Molyneux (1877) 3 QBD 237 at 247) to explain how

unreasoning prejudice or anger in establishing malice. At [86] and [93] to
The significance of the precise meaning of lack of honest
belief was explained at [97] :

Because honesty is presumed, the plaintiff has the onus of
negativing it. That is to say, the plaintiff must prove that the
defendant acted dishonestly by not using the occasion for its
proper purpose. Unless that is kept in mind, there is a danger
that reference to the honesty of a defendant will reverse the
onus of proof. If the tribunal of fact rejects the defendants
evidence that he or she positively believed in the truth of what
he or she published, it does not logically follow that the
plaintiff has proved that the defendant did not believe in the
truth of the publication or had an improper motive. Rejection
of the defendants evidence, combined with other evidence,
may lead to the conclusion that the defendant had no belief in
the truth of the publication or knew that it was false. But mere
rejection of the defendants evidence does not logically and
automatically lead to any conclusion as to what his or her state
of mind was. By destroying that evidence you do not prove its
opposite.
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A
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148
These principles were discussed and applied in Gross v
Weston [2007] NSWCA 1, Rackham v Sandy [2005] EWHC 482 [18] to

C
E2.
149
The evidence on the state of mind of the defendants

In light of our discussions below on the application of the
relevant evidence on the state of mind of the defendants at the material
on malice. However, since the state of mind of a person is ultimately a
150
There was no evidence of the defendants having any
there was also no evidence of any prior grudges between them. On the
evidence, the defendants (mostly on the part of the 2 nd defendant)
intervened upon being told of the incident by her daughter. Thus, the
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Judge directed the jury as follows at p.67-68 of the transcript of Day 17

regarding the 1 December email from the defendants to Ken Pemberton
and Fanny Wong :
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dealings with the plaintiffs before this incident. As submitted by Mr Yu

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to have regard to other relevant circumstances and conducts.
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question and the three exonerations by the school in support of his case
question of inference to be drawn from his acts and words, it is necessary
law in the present case, it is necessary to set out at some length the
times. Mr McCoy placed much emphasis on the contents of the Emails in
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[21].
as at that moment, Mrs Chan was only told about the

cheating by her daughter. She felt it was not right, and she
made some enquiries with some parents, including Mrs Lay,
Elite Tsui and Jenny Chua. Then after receiving confirmation
from those parents, she sent the first offending email.
Mrs Chan said her daughter was not the gossipping type, she
was honest, so you will have to look at all this evidence,
determine if you believe Mrs Chans evidence, and if you do,
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whether on a subjective basis she honestly believed in what her

daughter told her and then she issued the first offending email.
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151
The jury found that there was no malice in respect of the
publication of the 1 December email.
The jury further found the
defendants sent that email in the hope that the concerns would be brought
contain the damage to the reputation of CIS and to handle the issue
appropriately.
Q
R
Amongst those to whom the 1st defendant had sent the
Chuidian, who on 2 December 2011 informed the defendants that Justin
154
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N
In the morning of 3 December 2011, there was a telephone
conversation between the 2nd defendant and Justin Alexander. There was
O
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a factual dispute as to the contents of that conversation. We were referred

to the relevant part of the evidence in the transcript.
Mr Alexander
testified on Day 4, and his evidence on this conversation was at internal

that Mr Alexander said he had told the 2nd defendant the processes that the
school had undertaken regarding the incident which the judge referred to
as the two exonerations in his directions to the jury. The teacher involved
1 December Email was the current chairperson of the CISPTA, Barbee
p.14-17 of the transcript. For the present purposes, the main point was
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Alexander would get in touch with them.
following significant events occurred.
N
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Between the 1 December Email and the 4 December 1 st
Email from the defendants to Justin Alexander, the head of the secondary
153
152
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section of CIS (which the jury found to be published with malice) the
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to the attention of the school management and the school would act to
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had examined the paper. He spoke with the students who raised the
concern and also spoke with 1st and 2nd plaintiffs. The teacher told Mr
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the senior management (Brian Mulcahy and Claire McQuillan) also

st
155
Mr Alexander gave evidence as to the immediate response of
appeal :
after explaining the process that wed gone through
Frieda still expressed, in my view, the tone and the concern
about the fact that Jonathan was found to be innocent in this
case. There was still an underlying tone in her --- in the
conversation that she felt really that Jonathan was guilty and
that, in my view, was really the only response that she was
looking for. She asked me to keep the matter open. Once
again, I --- my feeling is that it was --- that she wasnt satisfied
with my response that Jonathan was indeed found innocent on
two occasions at this point.47
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156
The 2nd defendants evidence was that she had not asked
two exonerations though she accepted that he said the school had already
done what should be done and she could not remember every single
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157
As recited earlier, the 2nd defendant received information
2011. Though the email was sent at the early hours of that date, the
47 Day 4 p.17.
48 Day 8 p.4-5; Day 9 p.78-86; Day 10 p.32.
sentence in the conversation due to the lapse of time.48
from Anney Lay by way of an email from her at 00:16 am on 3 December
about the processes and Mr Alexander did not tell her the details of the
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the 2nd defendant at the conversation, which is of some importance in this
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and 1 and 2 plaintiffs. They also felt that there was no case to answer.
nd
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Alexander that there was no collusion or cause for concern. After that,
conducted further interview with the students and spoke with the teacher
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evidence was that she did not read it until after she had the conversation
with Mr Alexander. She explained the situation in this regard in her oral
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11:37 am and 11:52 am on 3 December respectively. We have alluded to
incident, the 2nd defendant was told that this was not the first time. Anney
He is the Head of the Year, we should respect his input in

this. I know you might think that is too slow. We should go
and talk to Ted Faunce right away. But, I still wish to discuss
with Brian. The reason being that we want the least damage
done for our Year 13 kids But I am also aware that this was
not the first time. And, we are all disappointed that this had to
happen. I have more faith in Brian handling this matter, in
consideration of all parties involved, to tell you the truth.
Would you like to accompany me to meet him on Monday? Or,
please consider speaking to Justin or Ted Faunce directly, if you
think that will be more efficient
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158
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The 2nd defendant also had a conversation with Anney which
took place after her conversation with Mr Alexander in which Anney
N
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had heightened her concern and prompted her to write the 4 December 1st
P
email :
I had just talked about this case with Justin Alexander, and I
thought the school had handled it very well, but now that I had
talked with Anney, I discovered that this was not the first case,
and in fact, the year before, in the year before there was already
a similar situation.
S
T
gave her the same message.50 She explained how this new information
Year :
context is that in addition to being given more information about the
evidence and this was supported by the 2 emails she sent to Anney at
wrote about having a meeting with Brian Mulcahy, as Head of the 13 th

G
49
the contents of the email of 00:16 am. The significance in the present
E
49 Day 9 p.63-69.
50 Day 8 p.5-7.
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159
But I did not know whether that matter was true or false, but
my concern had been escalated. So, I had a very great urge to
tell Justin Alexander about this as well. I very much hoped that
he would tell me, first of all, whether this incident was true or
false. Also, then if that was false, then they should do
something to handle the perception issue
We have gone through these parts of the evidence at some
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length because it is the crux of the defendants case on the genesis of the
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4 December 1 Email and the jury should be directed specifically to their

relevance and significance in the context of assessing the difficult
incident must have an impact in the assessment of the 2
nd
honest belief when she wrote to Mr Alexander after the conversation on

3 December.
above.
It referred to the 2nd defendant learning about the previous
this email she qualified her request by the phrase if this story is true.
She gave an explanation in her evidence as to why she put down that
qualification : she did not know if that was true and her concern was
about the perception.
51
161
With regard to the previous incident, Mr Alexander and
Dr Faunce did not dispute that they had not come back to the 2
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N
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51 Day 10 p.20-21.
52 Day 4 p.42 (Mr Alexander); Day 5 p.10-11 (Dr Faunce); Day 8 p.10
(2nd defendant).
nd
defendant on whether there was such an incident and what was the
outcome.52
P
Q
We have set out the contents of the 4 December 1st Email
160
defendants
incident after the conversation with Mr Alexander on 3 rd December and in

M
st
question of malice. The acquisition of new information about a previous

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162
The query regarding the previous incident, unless it was
disingenuous (and all the contemporaneous emails shows that the query
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are, in our judgment, relevant to the assessment of the subjective intent of
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Meeting as a follow-up on this query,53 implicitly acknowledging that it
into the matter which led to the interview on 14 December 2011.
school did not investigate it as it had not been reported at that time. 54
Again, the jury should be directed in these regards in the context of
for the parents lack of faith in the exonerations by the school.

There was a meeting on 5 December organized by Anney
Lay with Brian Mulcahy. At the invitation of Anney, the 2 nd defendant

also attended the same. Another parent was also present. Neither Brian
from Anney Lay to two other parents (Fanny and Rosa) of 5 December
2011 was in the evidence. In that email, she explained the purpose of the
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meeting :
assessment of malice because these matters could form a rational basis
Mulcahy nor Anney Lay gave evidence at the trial. However, an email
P
regarding the earlier test in October 2011, according to Mr Alexander the
163
the 8 December Meeting was the agreement by Dr Faunce to look further
M
N
Dr Faunces evidence was that Mr Alexander set up the 8 December
Notwithstanding the evidence given on 14 December 2011 by Lok Lok

I
by the 2 defendant was genuine), and the subsequent lack of response
was not a matter addressed over phone before that date. The outcome of
G
nd
the 2nd defendant in her subsequent conduct and correspondence.

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This afternoon, I called the meeting with Brian, Freida and

Jenny, only with one objective, to work with Brian and see how
he can work with our kids during this confusing time, and if
53 Day 5 p.10.
54 Day 4 p.84, and see the judges reference to this at Day 17 p.36.
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things do get out of hand what damage control he has to

work with our already over pressured Year 13 kids. We had a
good session. Brian Mulcahy has our kids best interests at
heart, and he would work with our Year 13 kids to minimize
disturbance on them.
B
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164
Anney Lay also recounted from her perspective the
by the school management and the concerns of the parents. She referred
Frieda took charge and contacted PTA and Justin Alexander in

the past couple of days And, Justin set up a meeting for
Frieda to go and meet with Ted. I have not been very
optimistic in the possible final outcome of this case all the way,
because if the school has let this case gone out of control for 2
weeks, I sense they are trying to sweep this under the carpet.
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165
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Hence, as far as the parents were concerned, there had not
continuing dialogue in the form of meeting with Dr Faunce. Anney Lay

endorsed the efforts of the 2nd defendant, whom she saw as pursuing the
like Frieda, I do think we should let the school know the

parents and kids concerns on this matter. Unlike Frieda, Im
not as optimistic about the schools final decision in handling
this matter
166
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matter to raise legitimate concerns to the school :
been any satisfactory account by the school and there were to be
unsatisfactory situation in the lack of satisfactory handling of the incident

to the works of the 2nd defendant in these words :
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It can be said that this was Anney Lays own perception,
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P
Q
who might be biased as her daughter was one of the students involved.
However, in this respect, Anney Lay was not alone as the evidence
included participations in the discussion by other parents, three of them
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Teresa Ko, Jenny Chua and Fanny Wong gave evidence at the trial.
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167
Teresa Kos son was studying at CIS (but not one of the
students involved). She was the recipient of the 6 December Email.

C
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was to take place on 8 December. At the suggestion of Anney Lay, the 2 nd
thought the rumours were getting out of hand and she agreed to meet up
55
thought the same of all the parents involved.
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the 8 December Meeting. She took part as a parent rather than a lawyer.
56
spirit.
should take up the matter himself. She was also present at the meeting on
14 December 2011 when the students involved were interviewed again in
the part of any participating parents.57
In an email of 7 December 2011 in the early hours, Anney
Lay queried whether meeting Dr Faunce on 8 December could achieve

anything.58 In her reply to Anney Lay, the 2 nd defendant explained why
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she got involved in these words :
the presence of Dr Faunce. She did not think there was any bad faith on
168
At the end of the meeting, Dr Faunce was convinced that he
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She gave evidence about
The meeting was conducted in a civilised manner and ended in good

I
was the context in which that email was sent. She testified that she
with Dr Faunce with the good intention of bringing a stop to it. She
Mr Alexander arranged a meeting for the parents with Dr Faunce which

defendant approached Teresa Ko as she was a lawyer by profession. This
I ask myself : why am I doing this? My daughter is not

involved; she is not in the same econ class; I do not have any
younger children in CIS, this is the busiest time of the year for
my business and family; it is not something easy to take on and
it takes up a lot of my time, and I get discouraged at times I
have every reason to let go (and it is easy) but there is a strong
55 Day 10 p.63-64.
56 Day 10 p.65 and 74; Mr Alexander agreed, see Day 4 p.54.
57 Day 10 p.75-76.
58 CB 3 p.389-390.
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urge inside me to go forward and stand up for the sake of our

kids and our core values. I admire the immense courage of the
4 + 5 kids who stood up and spoke up against something which
they found seriously wrong. They, and all other kids are
waiting expectantly to see what the School will do about this.
Should we parents also do our part? We may not achieve
anything but at least we try, and it is important that our kids see
that we do.
B
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F
169
She also explained why she wrote the 4 December 1st Email :
Why did I write to Justin? He called me after the PTA Chair
forwarded my email to him, and after our conversation, I was
shocked to hear from Anney that last year similar thing
happened, and thus 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.
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170
These were contemporaneous words written at a time when
the 2nd defendant did not contemplate legal proceedings would be brought
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against her. Hence, the jury should be directed to pay attention to it as

part of the evidence of the then intention of the 2nd defendant.
171
participating at the 8 December Meeting was accepted by Mr Alexander

st
December 1 Email.
60
anything wrong about that.
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61
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More relevantly, on the defendants belief, Mr
Alexander testified that at the meeting of 14 December Meeting, the
The good faith of the parents, including the defendants, in
parents believed the evidence of the reporting students and he did not see
Q
in his evidence59 though he was disappointed and upset in receiving the 4

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59 Day 4 p.49-50.
60 Day 4 p.18-19.
61 Day 4 p.76-77.
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172
Though Dr Faunce did not believe it was appropriate for
parents to be prescriptive as to how the school was to be run and thus

C
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he also wrote to the 2nd defendant on 8 December after the meeting

students.
62
him, was that throughout the emails there was a presumption that in fact
referred to the mentality underlying the relevant emails as a kind of
parents to be open and cordial during that time.64

After the interview of 14 December 2011, Dr Faunce gave
the third exoneration on 15 December. However some parents were

dissatisfied and we already alluded to some of their reactions. The 2 nd
defendant wrote the 16 December Email, in which she stated :
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We have taken the time to write and meet with you and your
staff NOT to get Jonathan and his twin sister into trouble or to
damage his (their) reputation, but to urge the school to take
action to deal with this serious perception issue concerning the
core values of academic integrity, honesty and honour. We are
not seeking individual interest but the good of CIS and its
students and alumni. We are more worried about the Schools
reputation and credibility. We care about the kind of values that
the school is instilling in its students, our children
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173
accepted that there were genuine efforts on the part of the school and the
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advancing such allegations with the knowledge that they were false. He
righteous conviction that the school had failed to act with integrity. He
Dr Faunces objection to the course of event, as testified by
cheating had occurred.63 He did not suggest that the defendants were
G
found the 8 December Meeting exceptional and felt pressure on his part,
showing appreciation for the genuine concern for the school and
62 Day 5 p.18-25; p.44.

63 Day 5 p.40.
64 Day 5 p.41.
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174
On 16 December 2011, Dr Faunce also issued a newsletter to
the secondary school community in which he gave an account of the

C
D
incident.
said :
H
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Given the seriousness of such allegations, it seemed appropriate

that the Head of Secondary and the Headmaster pursue the
matter further and to hear directly from the various parties,
including the parents of the students who had brought forth the
concerns.
175
deep and consistent academic honesty. He also urged parents to respect
176
After
reading
that
newsletter,
the
2nd
defendant
acknowledged the efforts of Dr Faunce in an email of 19 December to

Rosa Ling copied to other parents. She said :
I think he has tried to address the issues that we raised as our
shared concerns, although we may hold different views
regarding their conclusion. I think it is a step forward, when
compared with his response (or non-response to be exact) to
previous complaints or expressed concerns. At least, he has
done something, and admitted that consistency of invigilation
and exam room conditions is a priority of the Secondary
leadership.
P
Q
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E3.
177
The misdirection by the judge on malice

The Judges direction to the jury on malice starts from
internal p.54 of the transcript on Day 17 of the trial. It runs to p.69. After
and processes in place when offering constructive criticism.
Dr Faunce emphasized that CIS sought to embed a culture of
K
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confidentiality and ended by a plea to parents to understand the policies

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In that newsletter, Dr Faunce referred to the widespread
speculation and the suggestion that the school did not do anything, and
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directing the jury correctly that the burden of proof is on the plaintiffs and
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malice is a matter of subjective intention, the Judge invited the jury to

examine the intention of the defendants by drawing inferences from their
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malice to the jury in these terms :

In this context, malice means, one, using the privilege occasion
to make a statement for some improper motives. So the
occasion is intended for you to do a certain thing and you do
something else for a purpose which is not proper for that
occasion; or, two, the absence of honest belief that what one
publishes was true. So you must understand malice in this
sense. So using the privilege occasion to make a statement for
some improper motives, or lack of honest belief that what was
published was true. So if you dont believe in what you are
saying in the document that you publish, then obviously you
are malicious. (Emphasis supplied)
F
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178
As discussed earlier, it is not correct in law to refer the lack
of honest belief as a separate head of malice. Further, though absence of

K
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Horrocks v Lowe, supra, for the reason canvassed in Roberts v Bass,
the directions as a whole to ascertain if the jury were clearly directed on
179
The Judge then addressed the jury on the plaintiffs case.
alternatively the defendants did not honestly believe in the truth of the
statements because of the exonerations of the children by the school. He
also explained that the improper motive had to be the dominant motive
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Their case was that the defendants intended to injure the plaintiffs or
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identified at [97] of Roberts v Bass, supra.
P
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lack of knowledge of truth is not sufficient. Thus, we have to examine

this rather subtle distinction so that they did not fall into the error
honest belief in the truth of the statement was an expression used in

supra, it should strictly be interpreted to mean knowledge of falsity. Mere
acts, conduct or words or emails. He then explained the meaning of
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and the mere knowledge that the statements would injure the plaintiffs is
not evidence of dominant improper motive to injure.
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180
The Judge summarized the parties respective case on
intention to injure as the improper motive at p.59-60 :

E
so far as intention to injure is concerned, Mr Whitehead says

the intention is plain on the face of the offending words. He
asks you to read them. He says an elephant is an elephant, and
the question you have to decide is whether that was the
defendants dominant motive to injure the plaintiffs.
F
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181
Otherwise, they would have found malice in respect of the 1 December

Email and the 4 December 2nd Email. Given the background leading to
previous history or grudges between the parties. The jury accepted that
there was widespread rumour in the school which reached the parents.
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and its reputation to the school were acknowledged by Mr Alexander and

Dr Faunce to be genuine. No reasonable tribunal of fact could have
found that the defendants were actuated by a dominant motive to injure
The concerns of the parents, including the defendants, about the rumour
Q
It is clear that the jury did not accept Mr Whiteheads case
the publications of these Emails, this is hardly surprising. There was no

O
on dominant intention to injure based on the wordings of the Emails.

M
Mr Pow has asked you to read the emails. Mrs Chan says her
intention was to call on the school to stop the rumour, to do
something.
For this purpose, you may refer to
contemporaneous emails evidencing her intention. Mr Pow has
identified them to you. What you have to do is to ask yourself
whether, looking at all the circumstances, the plaintiffs have
proved to your satisfaction that the intention to injure them was
the defendants dominant improper motive.
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the plaintiffs instead of concerns for the prevalent situation in the school.
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Hence, if there were to be any findings on malice, it had to be based on

the alternative case.
C
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182
The Judge picked up on the alternative case of malice at p.60
:
The second rung of malice is that the defendant knew the
offending words are untrue or did not honestly believe they are
true, there is a slight difference, but essentially it is the same.
One is they knew it is untrue, the other is they do not believe it
is true, do not honestly believe it is true.
On knowledge of falsity or absence of honest belief, if a

defendant uses the privilege occasion to publish something
defamatory of the plaintiff which he knows is untrue or which
he does not honestly believe to be true, then he clearly steps
outside the occasion of privilege.
H
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183
He went on to explain knowledge and recklessness at p.61 :
Knowledge is actual knowledge of something or recklessness

or absence of honest belief Now, what is reckless? Reckless
is where someone publishes untrue matter without considering
or without caring whether it is true or not. Then that is
reckless. It is indifference to the truth Or alternatively, that
he has no honest belief in its truth, then that is reckless
knowledge. But recklessness has to be distinguished from
carelessness. Its not the same. Reckless is not the same as
careless
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184
Later, the Judge said at p.64 :

You may then think is it impossible to prove malice? No.
Because the further one departs from reasonableness, the closer
it is to incredibility. You may think at one stage you will come
to a stage, you will say the director is not telling the truth, his
belief is not honestly held, and then he will lose the protection.
When you come to consider the issue of malice, based on
knowledge of falsity or based on lack of honest belief, you have
to first consider if the defendants have actual knowledge; if not,
whether the defendants were reckless; and if not, whether the
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A
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defendants lack of honest belief in the truth of what they say,

and then on that scenario, you determine if the defendants were
malicious.
With respect to the learned Judge (and he did not have the
C
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185
benefit of the citation of Roberts v Bass, supra, before him though

E
F
counsel for the defendants did submit in closing submissions that the
question was whether there was a dominant improper motive,
recklessness is not a separate head of malice and honesty is presumed), 65
G
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these directions are flawed in the following respects :

(a)
in the truth of the statements is not sufficient as this cannot
(b)
K
There was no direction on presumption of honesty. Lack of

honest belief was treated by the judge as an alternative to
actual knowledge of falsity. This is problematic for the
the lack of honest belief had to be more than lack of

reasonable basis for the belief, more than mere indifference
J
K
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(c)
Less serious recklessness, presented with other state of mind,
can support a finding of malice. However, those other state

of mind like gross unreasoning prejudice (as in Royal
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must be identified and the actuation by the improper motive

was so overwhelming that the desire to comply with the
relevant duty or to protect the relevant interest plays no
65 Paras 4 to 7 of Defendants submissions on malice.
recklessness, wilful blindness;
Aquarium, supra) or anger (as in Clark v Molyneux, supra)
as to the truth. It has to be dishonest, or in the context of
reasons explained in Roberts v Bass, supra. In this context,
There was no clear intimation to the jury that lack of belief

be equated with knowledge of falsity;
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significant part. The jury should be directed accordingly.

The Judge did not do so;
(d)
In terms of the imputation of dishonesty on the part of the
is no direction on the inherent unlikelihood of the same, see

HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at [70]-[71]
and Horrocks v Lowe, supra, at p.150H to 151D;
(e)
The direction on recklessness as to the truth of the

statements does not distinguish wilful blindness from the
(f)
ground for holding that there was misdirection.

186
At p.66, the Judge focused on intention based on knowledge
of falsity or lack of honest belief. And he said this :

So, really, this has to be determined on the basis of your finding
on what happened on 3 December telephone conversation.
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187
Further on, at p.67 he explained to the jury that even if
Mr Alexander had told the 2nd defendant the two exonerations and she
received it :
not be fatal, read together with the other defects this is also a
The direction on departure from reasonableness as ground
a ground for finding malice. Though on its own, this may
carries with it a risk of equating lack of reasonable belief as
evidence of improper motive, is not sufficient;
for disbelieving the defendants honest belief in the truth
less serious case of indifference. The latter, without other
defendants under the umbrella of lack of honest belief, there
then you will have to go on to find if she entertained no

honest belief in the truthfulness of the rumour. And factors
which you have to consider are whether she had not actually
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received the message about the two exonerations, whether she

was reckless in acting on the rumour or information given to
her by her daughter, whether she was obstinate in not accepting
the exoneration, and so on
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188
A page down at p.68-69, he said :

But on the alternative basis that Mrs Chan was not telling the
truth. Mr Alexander had told Mrs Chan of the two exonerations
and she had actual knowledge of the two exonerations, then she
will be faced with the knowledge of the two exonerations and
the conflicting evidence from the two reporting girls through
their mother and from her daughter. She nevertheless ignored
the two exonerations and acted on what her daughter told her.
She made some enquiries that may not be adequate. You will
have to determine whether she was reckless or whether she was
just careless, unreasonable, or obstinate in believing her
daughter.
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There will be no question of not knowing the result of the

schools inquiry, so you would have to consider whether in
those circumstances she insisted to believe in her daughter and
in the three reporting girls, that her honest belief is that there
was cheating. Now, you have the transcript also, and clearly
you also have the incident of the first economic test which
has not been addressed by the circular of 16 December, so you
read all these emails together and ask yourself whether she was
reckless or whether she was just obstinate, unreasonable;
nevertheless not reckless. Or alternatively, will you still find
that Mrs Chan had no lack of honest belief but in fact she has
positive belief in the truth of what her daughter told her? These
are matters for you.
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189
With great respect, on the facts and evidence in this case,
these directions are inadequate to guide the jury to properly assess the
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the law on malice, inadequate attention was paid to the subtle distinction
between knowledge of falsity and lack of belief for the truth of the
statements in the 4 December 1st Email.
bearing in mind the complexity on the law on malice as discussed above,

question of malice. By reason of the earlier defects in the directions as to
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190
These directions placed great emphasis on the findings as to
whether the 2nd defendant was told of the two exonerations in the
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conversation of 3 December 2011.
At the highest, even if the 2
defendant had learnt of the two exonerations, it might affect her belief for
the information from her daughter and the other parents (based on the
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cheating incident in the year before must weigh in the balance on
should also be taken into account in assessing whether the 2 nd defendant

was dishonest in maintaining a belief on the legitimacy of her queries.
these very important aspects of the 2nd defendants case on why she
continued to send emails with these allegations as she did after the
regarding the impact of the third exoneration against the lack of
investigation on the October test in light of the evidence of Lok Lok (as it
question of whether the school had good reason for not pursuing that
investigation on the ground of lack of report of the incident when it
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191
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As explained earlier, the direction on lack of honest belief as
an alternative to knowledge of falsity is flawed. With the high evidential
conversation of 3 December with Mr Alexander. The same can be said
Unfortunately, the Judge did not give any direction to the jury regarding
occurred).
lack of response from the school management on the previous incident
was her subjective state of mind that is relevant instead of the objective
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two exonerations. The further knowledge acquired by her on the alleged

assessing her perception as to the credibility of the school process. The
that she knew the falsity of those statements. On the one hand, she had
information of the reporting students); and on the other hand she had the
nd
the truth of the statements. But the two exonerations could not establish
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threshold in establishing a case of dishonesty, the Judge should have

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directed the jury to pay regard to the statement of intentions on the part of
the 2nd defendant as reflected in the contemporaneous emails (as
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Mr Alexander and Dr Faunce) on her strong belief (though some might
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192
Mr Yu submitted if one were to examine the evidence
carefully there was no evidence that the defendants did not believe in the
statements in the emails. Counsel went so far as suggesting that it was
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perverse for the jury to come to a finding of malice in light of the

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evidence in the present case.
On the other hand, in his written submissions, Mr McCoy
pinpointed the exonerations by the school and the absence of any

reference to the two exonerations in some of the emails from the 2 nd
defendant after the 3 December conversation with Mr Alexander as
malice.
193
unfortunately the Judge did not refer to these matters in his directions on
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highlighted above) and the observations by various witnesses (including

thought to be misguided or unreasonable) in the case of cheating. Again,
evidence of her disbelief in the case of cheating.
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Counsel said the
following at para 39 of his skeleton submissions in CACV 252 of 2015 :

in finding that the 4 sets of words were published with
malice, the jury must have followed the judges directions,
accepted Mr Alexanders evidence and rejected D2s evidence
and found as fact that Mr Alexander had given D2 a full
account of the two exonerations during the telephone
conversation on 3.12.2011. The jury must have found that
under such circumstances, Ds did not honestly believe in the
truth of the 4 sets of offending words, or were reckless as to
whether they were false or not, and/or that the 4 sets of
offending words were published with a dominant improper
motive.
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194
Thus, Mr McCoy cannot be sure if the finding of malice was
based on inferred knowledge of falsity or recklessness as to the truth of

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the statement or other dominant improper motive.
explained why the third option can be eliminated in view of the evidence
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195
On a proper analysis, we are of the view that these
submissions should be considered in the context of the Judges

Judge did not give the jury proper direction on the law and the necessary
guidance on the assessment of evidence in terms of drawing inference on
196
With respect, in light of the evidence highlighted above, a
a solid basis for an inference that she knew that the allegations of
cheating were false. In this connection, Mr Yu drew our attention to
40 SR (NSW) 311.
I think it was necessary to produce some evidence not only that

there were reasons for a change of belief but that such change
had actually taken place
197
To the same effect is the judgment of Jordan CJ in Mowlds v
Fergusson at p.322.
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198
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The relevant proposition can be found in the
judgment of Warrington LJ in the former case :
Trebeck v Croudace (1918) 118 LT 141 and Mowlds v Fergusson (1939)

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malice, it was not surprising that the jury reached the wrong verdict.
finding that the 2nd defendant learnt of the two exonerations could not be
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misdirection rather than the perversity of the findings by the jury. If the
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We have already
and the jurys verdict of lack of malice on the 1 December Email.
Mr McCoy did not dispute this proposition.
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199
Given the evidence already discussed above, the 2nd
defendant could well harbour doubt on the reliability of the two

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Such belief on her part needs not be a reasonable one. And the same is
careless, overzealous or obstinate. But it remains a matter of the 2 nd
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(including Mr Alexander and Dr Faunce) based on their interactions with

Thus, the jury should have asked whether these
concerns and belief were disguise on her part (at a time when there was
apparently no reason why she would have any need to put forward such a
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faade) and the Judge should have directed them in this respect and
reminded them of the high threshold in drawing inference of malice,
especially malice based on dishonesty.
200
In terms of recklessness, we have already explained why the
direction was inadequate. The Judge repeatedly drew the distinction

advert to the need to establish wilful blindness in order to bring about an
inference of improper motive to support malice. By directing the jury
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the wake of the two exonerations as the basis for determining whether the
2nd defendant was reckless as opposed to being careless, unreasonable or
obstinate in believing her daughter, the Judge unwittingly confused the
statements by the 2 defendant in the contemporaneous emails as to her
that the 2nd defendant made some enquiries that might not be adequate in
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between recklessness and carelessness/obstinacy. However, he did not

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manifested in the subsequent emails and the observations of the others

the 2nd defendant.
belief in the case of cheating could have been regarded as unreasonable,

defendants subjective belief. This belief on her part was apparently
exonerations in light of what she learnt subsequently from Anney Lay.

true in respect of the third exoneration. For some people, the continued
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jury. The question is not objectively whether there had been adequate
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further enquiries, rather it should direct to the subjective state of mind of

the 2nd defendant at that time, viz whether in light of the further
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the obvious innocence of the plaintiffs given the two exonerations.
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201
Hence, for all the reasons set out above, in our judgment the
Judge did not give adequate direction to the jury on the question of
considered by the jury.
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Is it open to the defendants to challenge the jury verdicts on the

ground of misdirection?
202
Mr McCoy submitted that by reason of the lack of complaint
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judge, there is a discretionary bar against these points being entertained

on appeal. He relied on several authorities in this respect. It is sufficient
for us to take the relevant principles from Kiam v Neil (No 2) [1996]
E4.
by the then counsel for the defendants in respect of the direction by the
malice and the defendants case on lack of malice had not been properly
information she obtained from Anney Lay, she was shutting her eyes to
Unfortunately, the jury was not directed to consider this crucial question.
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EMLR 493 at 500-501 per Beldam LJ :

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It is to be noted that none of the errors were drawn to the

judges attention at the close of the summing-up by experienced
leading counsel for the Times. This, of course, does not
preclude the arguments now advanced but if at the time the
errors or omissions made so little impact on experienced
counsel that he did not invite their correction it may be inferred
that he was content to allow the jury to consider the question of
damages with such errors or omissions uncorrected.
In a civil case the court is not obliged to order a new trial on the
ground of misdirection unless of opinion that some substantial
wrong or miscarriage has occurred
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203
At the same time, Mr McCoy said that this discretionary bar
is not applicable in respect of errors of law.

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204
In our judgment, the errors in the Judges direction stemmed
from the errors of law on what is sufficient to constitute knowledge or

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dominant improper motive in the context of malice.

205
serious miscarriage of justice in that the jury did not properly consider the
defendants case on lack of malice notwithstanding the three
206
We hold that the defendants were not prevented by the
207
Further, by reason of the serious misdirection, the verdicts of
the jury on malice must be set aside. Having come to this conclusion, it
aside the verdicts of malice based on inconsistency and perversity of the

verdicts.
E5.
208
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is not necessary for us to consider the other grounds of appeal for setting
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Further, as explained above, the misdirection led to the
discretionary bar from raising the question of misdirection before us.
wilful blindness to the truth which can provide a basis for finding
exonerations.
Should there be a retrial in respect of the question of malice?

The next question is whether we should remit the case to the
court below for retrial or we should determine the question of malice.
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This Court has the discretion to order a retrial or substitute an alternative

verdict, see Order 59 Rules 10(3) and 11.
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209
Mr McCoy submitted in the event we concluded there was
misdirection (as we did above) we should remit the case to the court
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Mr Yu submitted we should take the latter course since the
defendants. He invited us to adopt the course taken in Shaw Brothers

(Hong Kong) Ltd v Golden Harvest (HK) Ltd (No 2) [1972] HKLR 147
211
In that case, the court was satisfied that all the facts were
clear case so that nothing was to be gained by a retrial. The test adopted
by Pickering J at p.216 was that no reasonable jury could possibly come
Ltd [1914] 2 KB 429 by Lord Reading CJ at p.435-437 and Buckley LJ at
p.441.
But they also reminded that the power should be exercised
cautiously.
212
We shall adopt the same test and remind ourselves that we
should be slow to deprive the plaintiffs of the benefit of a trial by jury. At

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the same time, we agree if we come to the clear conclusion that nothing is
to be gained by a retrial it is our duty not to postpone the judgment date
with further costs and anxiety imposed on the parties in a futile exercise
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to any other conclusion. A similar test was adopted in Skeate v Slaters

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and to enter judgment for the defendants.
before the court, no new evidence was likely to be elicited. It was also a
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evidence overwhelmingly pointed to the lack of malice on the part of the
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below for a retrial.
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by way of a retrial.
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213
Mr McCoy did not suggest before us that if there were to be
a retrial the plaintiffs would call further evidence apart from those already
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On the existing materials, apart from the evidence
highlighted by the counsel for the plaintiffs below in his closing

submissions. In this connection, we have re-read the written closing
Judge to assist him in preparing for his direction but not placed before the
jury) and the transcript of his oral closing submissions before the jury on
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215
At the court below, counsel for the plaintiffs placed great
processes of investigation by the school and the omission to refer to it in

the 4 December 1st email. He also referred to the strong wordings and the
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the following matters to support the case of malice :

(a)
At the 8 December Meeting, according to Dr Faunce and Mr

Alexander the 1st defendant mentioned the possibility of
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taking matter to a higher authority. Teresa Ko did not recall

that66 and the contemporaneous post record of the meeting in
the email of the 2nd defendant to other parents sent on 8
Days 15 and 16.
tone used by the 2nd defendant in putting the allegations in the emails and
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submissions of 22 September 2014 (which was only placed before the
emphasis on the 2nd defendants knowledge of the exonerations and the

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specifically discussed earlier, we also have regard to the other matters
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before us.
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67
December at 4:13 pm suggested another parent present at

the meeting mentioned the risk of such possibility;
66 Day 10 p.68-69.
67 CB3 p.301.
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(b)
The 2nd defendant engaged Teresa Ko, a lawyer by

profession, to join the meeting of 8 December to put more
an email of 9 December 2011 at 11:12 pm, 68 she changed her

previous stance of not disturbing the students at that time
and put forward Teresas view that they should encourage
the students to meet Dr Faunce as the strength of their
(c)
(d)
Adverse inference should be drawn against the 1st defendant
The email of Anney Lay of 7 December doubted if it would
reminded them the students had already brought the concern

(e)
and did not conduct any investigation herself when she

(f)
received the letters before action from the plaintiffs

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There was no reference to the exonerations in the press

release of the defendants on 10 March 2012 after they
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solicitors and the media reports on the same;

(g)
The defendants walked out at the graduation ceremony when

the 1st plaintiff gave his speech.
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The 2nd defendant had not spoken to the reporting students

wrote the 4 December 1st email;
meeting of the parents on 7 December, Fanny Wong
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to the attention of the school;
to establish the case against the 1st plaintiff;
be useful to meet Dr Faunce on 8 December.69 At the dinner
as he did not give evidence at the trial;
evidence will diminish as time passed and it would be harder
pressure on the school management to do something. And in
68 CB2 p.239.
69 CB2 p.225.
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216
Counsel also went through the pleadings on malice at some
length in his closing address to the jury.70 We reminded ourselves with

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In his oral submissions, Mr McCoy summarized his case on
the wrongdoers, and the jury could infer from the number of publications,
the tone and crescendo of publications that this was her dominant
also invited us to the press release and the evasiveness in her evidence in
respect of the two exonerations in the conversation of 3 December as
respect, counsel referred to [32.37] and [32.45] of Gatley, supra.
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With respect, the defendants had to maintain a belief in the
wrongdoing before one can say that there was a campaign to punish the
wrongdoers. Thus, Mr McCoys summary of his clients case suggested
If that were so, applying the law correctly, there cannot be any finding of
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occasion for some purpose other than that for which the privilege is
accorded by the law : Horrocks v Lowe, supra.
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We would not, however, decide how we should dispose of
the appeals simply by reference to Mr McCoys formulation of his case.

We must examine the evidence to see if there is at least a case which a
70 Day 16 p.37 to 46.
alleged in the Emails, no matter how irrational or lack of foundation it is.
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malice unless the plaintiffs proved that the defendants misused the
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matters that the jury could take into account in drawing inference. In this
that the defendants all along maintained a belief in the wrongdoing

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intention. In addition to the matters we have considered above, counsel
218
malice in this way : the 2nd defendant ran a spiteful campaign to punish
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how the case had been pleaded in the Re-re-Amended Reply.
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jury properly directed could have come to a verdict of the defendants not
having such belief when they wrote the Emails. Mr Yu submitted that the
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there was no evidence to the contrary.

220
emails and account of events were concerned, the evidence pointed very
clearly to the defendants maintaining their belief throughout the incident,
necessary review when we discussed the evidence on malice.
In respect of the wordings and the tones of the offending
statements, whilst they are indeed strong and unpleasant words we cannot
find anything in them to suggest that the defendants did not genuinely
by Viscount Dilhorne in Horrocks v Lowe, supra at p.144 to 145 of earlier
judicial guidance :
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when considering whether the actual expression used can be

held as evidence of express malice no nice scales should be
used (per Lord Dunedin in Adam v Ward [1917] AC 309 at
330)
To submit the language of privileged communications to a strict

scrutiny, and to hold all excess beyond the absolute exigency of
the occasion to be evidence of malice would in effect greatly
limit, if not altogether defeat, that protection which the law
throws over privileged communications. (Laughton v Bishop
of Sodor and Man (1872) LR 4 PC 495 at 508)
even after the 15 December 2011. We have already gone through the
We agree with Mr Yu that as far as the contemporaneous
believe in the allegations. In this connection, there were some citations

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221
evidence overwhelmingly pointed to the maintenance of such belief and
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And Viscount Dilhorne said at p.145C :

in considering whether or not there was gross and
unreasoning prejudice on the part of the respondent no nice
scales should be used and that the fact that he made
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observations and comments which others would not have

thought it justified or right to make does not, to my mind,
exclude the possibility that they were made, not on account of
prejudice, but by reason of his failure to appreciate the
inadequacy of the grounds on which he based his comments.
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223
Similarly, Lord Diplock said at p.150C to E :
The freedom of speech protected by the law of qualified

privilege may be availed of by all sorts and conditions of men.
In affording to them immunity from suit if they have acted in
good faith in compliance with a legal or moral duty or in
protection of a legitimate interest the law must take them as it
finds them. In ordinary life it is rare indeed for people to form
their beliefs by a process of logical deduction from facts
ascertained by a rigorous search for all available evidence and a
judicious assessment of its probative value. In greater or in less
degree according to their temperaments, their training, their
intelligence, they are swayed by prejudice, rely on intuition
instead of reasoning, leap to conclusions on inadequate
evidence and fail to recognise the cogency of material which
might cast doubt on the validity of the conclusions they reach.
But despite the imperfection of the mental process by which the
belief is arrived at it may still be honest, that is a positive
belief that the conclusions they have reached are true. The law
demands no more.
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224
At the same time, we should also bear in mind the scope of
the publication confining to the school management and the small group
of concerned parents. This is most relevant for considering whether the
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defendants had misused the occasion to pursue an injurious campaign of

spite or vendetta.
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225
In respect of the exonerations from the school, we have
already discussed why according to her own statement in the email of

7 December the 2nd defendant chose to place no weight on the first two
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exonerations after she took on board the information from Anney Lay
regarding another incident in the previous year. For a more objective
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person, one may find the 4 December 1st Email to be an over-reaction.

However, we are concerned with the subjective state of mind of the 2 nd
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226
We are mindful that we did not have the opportunity of
hearing evidence from her and it is probably correct to proceed on the

basis that the jury had rejected her evidence on the contents of the
forcefully on behalf of the plaintiffs that adverse inference should be

drawn from her unsatisfactory evidence on that conversation, the lack of
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15 December).
However, the statement in the email of 7 December was a
spontaneous statement made at the time of the event and we cannot think
of any reason why at that time the 2 nd defendant should have disguised
regarded as comrades. It is inherently unlikely that the 2
nd
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defendant
dishonestly put up a false faade in that email of not accepting the
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knew that there was nothing in the allegations of cheating since it had
been thoroughly investigated by the school.
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228
In this respect, as discussed above, the plaintiffs bear an
onerous burden of persuading the court that the 2 nd defendant was

untruthful in that email. We cannot find any cogent evidence to discharge
references to these exonerations (and the third exoneration on
process leading to the two exonerations when deep down in her heart she
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3 December 2011 conversation with Mr Alexander. It was submitted
her real lines of thoughts to the other concerned parents whom she
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observations of Lord Diplock cited above.
227
defendant and we should approach this issue bearing in mind the
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such burden.
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229
Counsel for the plaintiffs relied on the lack of reference to
the exonerations in the subsequent emails. There was actually no point

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with the school management because the latter was obviously aware of
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that the students had been interviewed twice, see Anney Lays email of
terms of exonerations, the 2
nd
students being dismissed in the 4 December 1 st email though admittedly

Yet, viewed in the context that the 2
nd
thoroughness of the process of investigation leading to the exonerations,

and she was working on making the process to be more transparent, we
regarded as cogent evidence to refute her statement of intent in the email

of 7 December.
This is particularly so when one makes a global
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assessment of all the evidence as discussed earlier.

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In respect of the third exoneration, it is apparent from the
process. At the same time, the focus of the email was on the perception
issue in terms of the school handling of the incident instead of advancing
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whom the Email was copied were clearly aware of the third exoneration.
In such context, the lack of reference to the third exoneration could
hardly be a cogent basis for refuting the statement of intent in the email of
do not think the absence of reference to such exonerations could be
the allegations against the plaintiffs. Dr Faunce and all the parents to
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defendant was in doubt of the
16 December Email that the 2nd defendant was not convinced by the
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defendant did refer to the reports of the
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parents, as parents of the reporting students, they were probably aware
there was no reference to the comparison of the papers by the teacher.

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for the 2 defendant to refer to the exonerations in her communication
3 December 2011 to the 2nd defendant. Teresa Ko was the exception. In

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the same. In respect of the correspondence with the other concerned

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7 December.
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As for the other matters relied upon by plaintiffs as
adumbrated by their counsel in closing submissions, we do not regard

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basis for inferring that the defendants acted without any belief on the
nd
that the 2 defendant was much more involved in the events than the 1
defendant, his failure to give evidence at the trial was not remarkable.
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such a finding cannot be evidence of his lack of belief in the truth of the
Teresa Ko in the matter, the exertion of pressure on the school

management, the continuation in the pursuit of the case notwithstanding
reference to exoneration in the press release and the walking out at the
graduation ceremony, are logically neutral in terms of assessing whether
defendant had not spoken directly to the reporting students, she had
received information from their parents. Rightly or wrongly, so long as
that the law demands.
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I
J
K
L
M
N
O
P
Q
Thus, we come to a clear conclusion that notwithstanding the
three exonerations there is no basis for suggesting that the defendants did
not believe in the truth of the allegations. Some people may regard them
as obstinate or even swayed by prejudice, but we agree with Mr Yu that
the defendants believed in the assertions of cheating. Though the 2nd
232
the suggestion of Anney Lay in the email of 7 December, the absence of
Q
R
strong conviction in the truth of the same. Equally, the engagement of
she chose to believe in such information, as Lord Diplock said it is all

P
of the suggestion of going to higher authority at the 8 December Meeting,

assertions as to cheating. It is equally consistent with his harbouring a
st
Even assuming it is right to draw adverse inference against him in respect

G
them (whether individually or taken collectively) capable of forming the

assertions in the emails in the course of events. In view of the plain fact
S
T
U
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- 98 -
there is no evidence of them not believing in their own cause throughout

the incident.
233
Also in view of the lack of confidence of the defendants on
the school process which was actually the core of the problem, and such
E
F
G
H
management had not attempted to address (the incident in the previous

year and Lok Loks evidence regarding the test in October), the
O
P
Q
Coming then to the ultimate issue : was there any evidence
the defendants misused the occasion for some purpose other than that for
which the privilege is accorded by the law? In the court below, counsel
his written submissions placed before the judge.
Based on Royal
Aquarium, supra, p.444, he submitted that it would be evidence of malice
of other persons, and whether what they were saying were true or false.71
235
L
M
N
O
As we have discussed above, recklessness short of wilful
blindness coupled with gross unreasoning prejudice could be evidence of
Q
R
to act to protect the relevant interest plays no significant part in the

publication of the offending statements. Whilst we accept that there may
71 Para 123 in the Plaintiffs written closing remarks of 22 September

2014.
such a reckless state of prejudice that they were regardless of the interests
malice if such unreasoning prejudice was so overwhelming that the desire

R
if the jury finds that the defendants have allowed their mind to get into
N
exonerations.
for the plaintiffs advanced a case based on reckless state of prejudice in

L
defendants did not act with wilful blindness in refusing to accept the three
234
lack of confidence was based upon some matters which the school
I
J
B
C
C
D
S
T
U
V
- 99 -
be an arguable case on such recklessness and the jury may infer

prejudice, we do not find evidence of such overwhelming unreasoning
C
D
E
F
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founded upon matters not addressed by the school as stated above.

236
conclusion that the desire to protect the interest of the students in general
played significant part in the defendants acts. The very limited scope of
R
S
T
U
V
F
G
the circulation of the emails, the efforts on the parents part to enter into
dialogue with the school management, the circumstances in which these
emails and document were written, and the objective facts that the school
H
I
did find it necessary to respond by way of the further inquiry on

14 December and the publication of the newsletter on 16 December are
strong indicators that the defendants acted within the limits of the
defendants did not accept the conclusion of the school management, the
2nd defendant in her 19 December email acknowledged the efforts of
237
For these reasons, there is no evidence on which a properly
directed jury can make a finding of malice on the part of the defendants.
Further, the evidence also very clearly pointed to the
Dr Faunce and there were no further offending emails.
prejudice in view of the genuine concerns over the school process
purposes for which the privilege was conferred. In addition, though the
L
J
K
L
M
N
O
P
Having arrived at this conclusion, applying the test set out above, we
should enter judgment for the defendants instead of ordering a re-trial.
Q
R
S
T
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V
- 100 -
A
B
C
D
E
F.
QUALIFIED
PRIVILEGE
PUBLICATIONS
ON
OTHER
OFFENDING
F1.
The parties submissions

D
238
What remains outstanding is the question whether the
concurrent findings by the Judge and this Court on qualified privilege in
then we can dispose of the appeals without remitting the case back to the
lodge their written submissions on this question.
directions, the parties lodged their submissions on 24 October 2015 (by
239
Essentially, Mr McCoy took two points in the plaintiffs
240
He first submitted that it is wrong in principle to apply the
concurrent findings on qualified privilege to the other offending

O
P
publications.
defamatory matter was published on an occasion of qualified privilege,
T
U
V
L
M
N
O
P
Q
the origin and publication of the publication in order to ascertain whether

the necessary conditions are satisfied, by which alone protection can be
obtained.
He took the general point that in determining the
the court must take into account of every circumstance associated with
Q
submissions of 24 October.
2015 (by the plaintiffs in reply).
K
L
Pursuant to our
the plaintiffs), 7 November 2015 (by the defendants) and 21 November

J
apply to all the other defamatory publications complained of. If they do,
court below for further consideration. We have invited the parties to
B
C
respect of the 1 December Email and 4 December 2 nd Email should also

F
Since each and every offending publication had to be
R
S
considered separately, it is wrong in principle to apply the concurrent

findings to publications other than the 1 December Email and the 4
T
U
V
- 101 -
December 2nd Email without regard to the different recipients, timing and
circumstances each was published.
C
D
241
Mr McCoy next submitted that since there were questions of
facts relevant to the question of qualified privilege for other offending

E
F
G
H
I
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K
L
M
Court of Appeal could not simply apply the concurrent findings to the
other offending publications in the absence of such findings by the jury.
other publications should be postponed until after all the disputed

questions of fact relevant to qualified privilege have properly been found
were.
That he only did in the plaintiffs reply submissions of 21
November.
U
V
E
F
G
H
I
242
J
K
There, Mr McCoy set out a number of questions which,
according to his submissions, are relevant to the questions of qualified
L
M
N
according to his reasoning, that the jury would in all probabilities have
returned. He reiterated that it would be wrong in principle for the Court
publications.
O
P
He alternatively submitted that different circumstances
existed with respect to those publications such that the concurrent
Q
R
is no need to defer the question whether qualified privilege apply to other

offending publications until all the relevant questions of fact have been
determined by the jury because the jury would have in all probabilities
by the jury. He, however, had not identified what those questions of fact
findings did not apply to them. In substance, he now submitted that there
R
He therefore submitted that whether the concurrent findings apply to the
of Appeal to apply the concurrent findings to the other offending

P
publications which could only be determined by the jury but were not, the
privilege to other offending publications and provided the answers, again

N
S
T
answered them in the plaintiffs favour. Mr McCoy placed particular on

U
V
- 102 -
the three exonerations by the school management and the jurys findings
on the 2nd defendants lack of concern (see [94] and [95] above).
C
D
243
Mr Yu submitted that the key question is whether there is
any reason why on the basis of the same relevant facts and evidence the
E
F
G
H
I
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K
December Email and the 4 December 2nd Email would not also exist
between the senders and recipients of the other offending publications.
between the occasions of publication of the various sets of words insofar
as the existence of common interest is concerned.
Referring to the
P
Q
R
by us, Mr Yu submitted that the same findings must apply to the

occasions of publication of the other offending words during the period
F2.
244
Our views
We do not see the need to defer the question of qualified
McCoy. The simple reason is all the relevant evidence is already before
us. We can come to a determination on this question of law now.
T
U
V
E
F
G
H
I
J
K
L
M
N
O
P
Q
245
We have considered the questions of fact identified by Mr
McCoy in his reply submissions but find it unnecessary to deal with them
in detail. We do not consider them to have any significant bearing on the
various findings by the Judge relating to common interests, now upheld
privilege in respect of other offending publications as contended by Mr

O
Put slightly differently, the key question is whether there is any difference
common interest existed between the senders and recipients of the 1
from 1 to 16 December 2011.
R
S
overall assessment of the evidence on qualified privilege or the existence

of common interests pertaining to the other offending publications. And
T
U
V
- 103 -
it is wrong for Mr McCoy to provide the answers which he said the jury
would in all probabilities would have returned because it is no more than
G
H
I
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K
We can see no material difference in the circumstances
words. The very same common interests underlying the 1 December

Email and the 4 December 2nd Email, that is, the preservation of the
the students the importance of academic integrity and ensuring that CIS
takes a responsible attitude and appropriate actions as regards cheating in
material times between 1 and 16 December 2011 for all the offending
publications between the defendants as senders and the recipients,
management.
As to the three exonerations of the plaintiffs by the school
did not assist the plaintiffs in establishing malice. For the same reasons,
U
V
J
K
L
N
O
P
the question of qualified privilege in respect of the relevant offending

publications in the overall circumstances of the case.
Further, as
Q
R
mind of the defendants has any relevance on the question of qualified

privilege, the finding by the jury as to lack of concern was tainted as a
result of misdirection (without having been properly directed to all the
management, we have already in discussing malice explained why they
discussed in sections E3 and E5 above, insofar as the subjective state of

R
we do not see how the exonerations would have any material impact on
P
examinations or rumours of such behavior, existed throughout the
247
image and reputation of CIS, ensuring that CIS inculcates and instills in
M
N
pertaining to the occasions of each of the publications of all the offending
whether they were parents or the senior members of the school

L
C
D
246
a speculative exercise.
D
E
S
T
relevant evidence on that question) and no reasonable jury properly

U
V
- 104 -
directed could have come to such finding. Hence, such finding could not
assist the plaintiffs.
248
For the above reasons, we hold that the defendants have
successfully established the defence of qualified privilege as pleaded and

E
G.
249
DISPOSITIONS
In light of our judgment above, we need not deal with the
250
We dismiss the plaintiffs appeal, CACV 251/2011 and allow
the plaintiffs favour below be set aside and that the plaintiffs claims be
dismissed with costs of the proceedings below to the defendants, to be
taxed if not agreed, with a certificate of two counsel.
251
Costs of the appeal should follow the event. We therefore
make an order nisi in each appeal that the plaintiffs shall pay the
O
P
N
O
Q
R
S
for two counsel.
defendants costs of the appeal, to be taxed if not agreed, with a certificate
M
N
plaintiffs appeal against the Costs Order separately. It must fail.
the defendants, CACV 252/2011. We order that the judgment entered in

K
E
F
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formulated by Mr Yu in respect of all the other offending publications.
F
G
B
C
C
D
(Johnson Lam)
(Jeremy Poon)
(Susan Kwan)
T
U
V
- 105 -
A
B
Vice-President
Justice of Appeal
Justice of Appeal
Mr Gerard McCoy, SC & Mr Lawrence Ng, instructed by Norton Rose

Fulbright Hong Kong, for the 1st, 2nd and 3rd plaintiffs
Mr Benjamin Yu, SC & Ms Queenie Lau, instructed by Deacons, for 1st
and 2nd defendants
Appendix 1
Particulars of 1st Offending Words
(1)
In the heading thereof : -
Head Boy Cheating

L
(2)
K
L
M
Jonathan Lu and his twin sister were caught cheating at
daddy sits on the Board of Governors And that that was

not the first and only time that they cheated, and it has
never occurred to them that cheating is a serious

misbehavior that may cost them their future
In the 1st paragraph thereof : -
without any consequence And that is because their
the Econ exam but apparently he managed to get away
B
C
O
P
Q
R
S
(3)
nd
In the 2 paragraph thereof : T

U
V
- 106 -
This story (and variations of it) is travelling fast and wide

within the CIS community. It is highly undesirable (to use
to our young kids

(4)
In the last paragraph thereof : F
damages brought about by the matter and the way it has

been handled.
In their natural and ordinary meaning the 1 st Offending Words meant or

were under stood to mean, inter alia, that : -
(1)
The 1st and/or 2nd Plaintiffs cheated in an examination at CIS;
(2)
The 1st and/or 2nd Plaintiffs repeatedly cheated in other
L
M
(3)
(4)
(5)
(6)
(7)
U
V
The 1st and/or 2nd Plaintiffs cheating in examinations sends
The 1st and/or 2nd Plaintiffs are shameless about their
O
P
Q
The 3rd Plaintiff dishonestly and improperly intervened to

influence the outcome of the investigations on the alleged
cover up the cheating;
The 1st Plaintiff and/or 2nd Plaintiffs are guilty of serious
cheating;
Q
unhealthy messages to the students at CIS;
examinations at CIS;
misbehaviour;
N
I really hope that Ken do something asap to contain the
the slightest words) and it sends a very unhealthy message
D
E
R
S
T
cheating by the Headmaster and staff of CIS;

U
V
- 107 -
A
B
(8)
The 3rd Plaintiff dishonestly and improperly used his position

as a member of the Board of Governors of CIS to help the 1 st
C
D
(9)
The 3rd Plaintiff dishonestly and improperly abused his

position as a member of the Board of Governors of CIS by
and staff of CIS to falsely exonerate the 1st and/or 2nd

Plaintiffs from cheating.
G
H
particular causing or permitting or furthering the dishonest

and improper intervention of the 3rd Plaintiff to prevent the
investigating the alleged cheating, and have discredited and

damaged the reputation and integrity of CIS.
H
I
J
K
L
M
Appendix 2
N
Particulars of 2nd Offending Words
N
O
P
(1)
the Head Boy has cheated in exams but manage to get

away with it because his dad is on the Board of Governors
he was alleged to have cheated last year but nothing
Headmaster and staff of CIS from properly and in good faith
in combination committed repeated dishonest acts, in
(10) The 1st and/or 2nd and/or 3rd Plaintiffs have by themselves or
and/or 2 Plaintiffs to get away with their cheating;
exerting undue and improper influence over the Headmaster
nd
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was seen to have happened. AND he was made the Head

Boy the following year. These rumours are very damaging
T
U
V
- 108 -
to the image of CIS and erode students trust in the

School. [Emphasis original.]
C
D
(2)
Under the sub-heading Perception issues in the 2nd

paragraph thereof : Whats worse is when such a case involves children of the
under the carpet, it is bound to become huge rumours
and they can really spread fast and wide. It is highly
one will be untouchable if his dad/mom is a Board

member or a good friend of someone powerful. It really
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erodes their trust in the system [Emphasis original.]
S
T
U
V
G
H
I
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K
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In their natural and ordinary meaning the 2nd Offending Words meant or
(1)
(2)
The 1st Plaintiff repeatedly cheated in other examinations at
CIS;
P
(3)
Q
R
undermines the kids belief in integrity and honesty and
undesirable for the kids to have the wrong impression that
all powerful Board members, and is seen to be swept
E
F
(4)
The 1
st
and/or 2
nd
Plaintiffs are guilty of serious
misbehaviour;
The 1st Plaintiffs cheating in an examination last year and
his becoming the Head Boy the following year (because he

is dishonest as a cheat) had damaged the reputation of CIS
and eroded students trust in CIS;
S
T
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V
- 109 -
A
B
C
D
(5)
The 1st and/or 2nd Plaintiffs are dishonest;
(6)

D
(7)
rd
The 3 Plaintiff dishonestly and improperly intervened to


(8)
G
(9)
J
K
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M

The 3rd Plaintiff dishonestly and improperly abused his

and staff of CIS to falsely exonerate the 1st Plaintiff from
(10) The 1
and/or 3
rd
Plaintiffs have by themselves or in
combination committed repeated dishonest acts, in particular

improper intervention of the 3
rd
U
V
M
N
Plaintiff to prevent the
O
P

Q
Appendix 3
K
L
st
cheating.

P
Plaintiff to get away with his cheating;
causing or permitting or furthering the dishonest and

N
E
F
Particulars of 3rd Offending Words
R
S
T
U
V
- 110 -
A
B
(1)
the perception that it is okay to cheat in order to get
good grades; the perception that if ones dad is one the

Board or a friend of someone powerful, then he/she is
untouchable and can get away with it even if he/she
cheats at exams; the perception that the Head Boy who has
F
cheated in exam is allowed to continue to draft the

Honour Code
G
H
(2)
In the 2 paragraph thereof : -
his (their) reputation, but to urge the school to take action

to deal with this serious perception issue concerning the
core values of academic integrity, honesty, and honour
we are concerned with what kind of values and moral

education our children are receiving at this institution.
[Emphasising capital letters from the original.]

O
In their natural and ordinary meaning the 3rd Offending Words meant or
were under stood to mean, inter alia, that : (1)
U
V
J
K
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M
N
O
P
Q

R
(2)
The 1
st
and 2
nd
Plaintiffs cheating had damaged the
reputation and integrity of CIS and of the 1 st and/or 2nd

Plaintiffs themselves;
jet Jonathan and his twin sister into trouble or to damage
nd
the time to write and meet with you and your staff NOT to
it is not the 4 girls against the twins We have taken
S
T
U
V
- 111 -
A
B
(3)
The 1st and/or 2nd Plaintiffs cheating had damaged the core
values of academic integrity, honesty, and honour;
C
D
(4)
The 1st and/or 2nd Plaintiffs are dishonest;
(5)
(6)
rd
The 3 Plaintiff dishonestly and improperly intervened to


G
H

(7)

I
J
(8)
The 3
rd
Plaintiff dishonestly and improperly abused his

st
and staff of CIS to falsely exonerate the 1 and/or 2
(9)
R
S
T
U
V
K
L
nd
Plaintiffs from cheating; and
The 1st and/or 2nd and/or 3rd Plaintiffs have by themselves or

I
J
and/or 2 Plaintiff to get away with their cheating;
nd
E
F

O
P
Q
R
S
Appendix 4
T
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- 112 -
Particulars of 4th Offending Words
B
C
(1)
In the heading thereof : D
Head Boy Cheating

E
(2)
In the 2nd paragraph thereof : -
Shortly after we spoke, I am dismayed to hear another

G
courageous and righteous students reported to the School

about Jonathan cheating in an examination but their report
that!!! And Jonathan became the Head Boy the following

year!!
(3)
M
N
I am sure that the school has this earlier incident on
incident against such blatant disregard of the rules and
(4)
N
O
P
In the 4th paragraph thereof : -
My husband and I would be grateful if you could let us
have your response to the following questions :
serious challenge to the core values of the School.
not taken immediate disciplinary action after the recent
In the 3rd paragraph thereof : -
record. I have found it hard to believe that the School has
was dismissed (de-facto) and nothing happened after
story from the grapevines that about a year ago, 5
B
C
S
T
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V
- 113 -
1.
What does the School normally do to discipline a

student who has cheated repeatedly and disregarded
2.
What are the criteria for choosing a Head Boy and

Girl? Isnt it true that the Head Boy and Girl are
meant to be exemplary students to whom the students

F
should look up to? Would the School and the CIS

community delight in having a Head Boy or Girl who
cheats in exams and achieves exemplary results

H
through cheating? What irony it is for the Head Boy

who has cheated multiple times, without any remorse,
drafts and announces the Honour Code to the

J
3.
If the testimonies of the 5+4 students are not strong

enough evidence to prove Jonathans and Caitlins
very hard to convince myself that all these students

are lying.
S
T
U
V
E
F
G
H
I
J
K
L
(5)
M
N
O
In the 5th paragraph thereof : I am even more sad for Jonathan and Caitlin for their
failure to realize the severity of their misbehaviour, as they
cheating, could you please tell me what are? I find it
assembly of students!
the rules?
P
Q
will be tempted to cross the lines to achieve their selfish

ends later on in their lives, and the consequences may be
too much for them to bear.
Leniency without any
R
S
corrective punishment is a disservice to them.

T
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V
- 114 -
In their natural and ordinary meaning the 4 th Offending Words meant or

C
D
(1)
(2)
(3)
st
The 1 and/or 2
nd
Plaintiffs repeatedly cheated in other
The 1st and/or 2nd Plaintiffs are guilty of serious
misbehaviour;
G
(4)
G
nd
The 1 and/or 2 Plaintiffs blatantly disregarded the rules of

H
(5)
The 1st Plaintiff showed no remorse for his cheating;
(6)
The 1st and/or 2nd Plaintiffs should be disciplined for their
J
K
st
CIS and seriously challenged the core values of CIS;
H
I
cheating;
K
(7)
st
The 1 Plaintiffs cheating in an examination last year and

his becoming the Head Boy the following year (because he
is dishonest as a cheat) sends unhealthy messages to students

M
N
(8)
(9)
The 1st and 2nd Plaintiffs are selfish and they achieved their
U
V
N
O
The 1st Plaintiff achieved his exemplary results through
cheating.
Q
Appendix 5
selfish ends through cheating;
at CIS;
O
P
E
F
R
S
T
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V
- 115 -
A
B
(1)
C
D
(2)
In the heading thereof : -
Head Boy Cheating
C
D
In the 2nd paragraph thereof : I do not agree with his conclusion, especially after I have
found out that Jonathan was seen cheating by 5 students

F
(1)
(2)
The 1 Plaintiff cheated in an examination at CIS;

st
The 1 Plaintiff repeatedly cheated in other examinations at
Appendix 6
M

N
(1)
In the heading thereof : Head Boy Cheating
U
V
N
O
P
Q
(2)
In the 2nd paragraph thereof : R
You may be aware that there have been a lot of talks about
students cheating in exams recently, and the most talkedabout is the Head Boy and his twin sister being spotted
J
K
st
CIS;
F
G
were under stood to mean, inter alia, that : I
about a year ago.
G
H
S
T
cheating by 4 fellow classmates, who became so frustrated

U
V
- 116 -
that they reported to the teacher about this. The teacher

reported the matter to the Head of Secondary but, after a
Words are spreading fast and wide among the students and
the CIS community that the lack of action is due to the fact
personal friend of Ted Faunce. Whats more, last year 5

students reported to the teacher that the same boy cheated
was made the Head Boy the following year!

(3)
do not want our kids to have wrong impression that it is
parents.
L
M
N

(1)
(2)
The 1st and/or 2nd Plaintiffs repeatedly cheated in other
R
(3)
st
The 1 Plaintiffs cheating in an examination last year and

his being the Head Boy the following year (because he is
dishonest as a cheat) has damaged the reputation of CIS and
they will get away with it if they have powerful/influential
Paul and I feel very strongly that this is not right, and we
In the 3rd paragraph thereof : -
okay to cross the line to achieve their selfish ends and that
at an exam but ironically, instead of being punished, he
that the Dad is on the Board of Governors and a close
lapse of over two weeks, nothing is seen to have happened.
S
T
eroded students trust in CIS;

U
V
- 117 -
A
B
(4)
The 1st and/or 2nd Plaintiffs are guilty of serious

misbehaviour;
(5)
(6)
The 1st and/or 2nd Plaintiffs are selfish and they achieved
their selfish ends by cheating;
(7)
G
H

(8)

I
J
K
M
N
O
P
R
S
U
V
E
F
G
H
I
J
(9)
The 3 Plaintiff dishonestly and improperly used his position

K
L
(10) The 3rd Plaintiff dishonestly and improperly abused his

M
N
and staff of CIS to falsely exonerate the 1st and/or 2nd

Plaintiffs from cheating;
(11) The 3rd Plaintiff dishonestly and improperly used his
st
O
P
Q
nd
1 and 2 Plaintiffs to get away with their cheating;

(12) The 3rd Plaintiff dishonestly and improperly abused his
personal friendship with the Headmaster of CIS by exerting
undue and improper influence over the Headmaster and staff
rd
personal friendship with the Headmaster of CIS to help the

Q
and/or 2nd Plaintiffs to get away with their cheating;

L
The 1st and/or 2nd Plaintiffs cheating in examinations sends

unhealthy messages to the students at CIS;
R
S
T
U
V
- 118 -
of CIS to falsely exonerate the 1st and/or 2nd Plaintiffs from

cheating;


F


Appendix 7
20.
Each of the occasions of publication of the 1 December Email, 4

st
December 1 Email, 4 December 2
nd
Summary and 16 December Email by the 1 st and/or 2nd Defendants
T
U
V
K
L
M
Particulars
(1)
was an occasion of qualified privilege.
Email, 6 December Email,
(13) The 1st and/or 2nd and/or 3rd Plaintiffs have by themselves or
CIS is a well known private international school offering

primary and secondary education in Hong Kong.
(2)
Dr Theodore Faunce is the Headmaster of CIS.

Q
(3)
Mr Justin Alexander, Ms Claire McQuillan and Mr Brian

Mulcahy are respectively the Head of Secondary, Deputy
Head of Academics and Head of Year 13 of CIS.
R
S
T
U
V
- 119 -
A
B
(4)
Mr Robert Pagliarello is the Economics Teacher and the

Invigilator of an Economic Test for Year 13 students of CIS
C
D
(5)
nd
The 1 and 2 Plaintiffs are both Year 13 students, and their

father, the 3rd Plaintiff, is a member of the Board of
(6)
st
The 1 and 2
nd
Defendants, Ken Pemberton and Fanny
Wong, Eric Wong and Jenny Chua, Danny and Anney Lay,
Christina Wong, Rosa Ling, Michelle Chin, Elite Tsui,
Year 13 students of CIS.
(6A) Barbee Chuidian is the President of the Chinese International
(7)
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School Parent-Teacher Association (CISPTA).
On 10 November 31 October 2011, in an Economics Test for
certain suspicious behavior of the 1st Plaintiff and suspected

that he might have been cheating in the test. After the test
Lok Lok told some of her friends about what she had seen.
On 11 November 2011 at an English class, one student
brought up the suspected case of cheating by the 1 st Plaintiff
in the Economic Test on the previous day.

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(8)
On 24 November 2011, in another Economic Test for Year

13 students of CIS, 4 students (Lok Lok, Laura, Danielle and
Joyce, hereinafter collectively referred to as the 4
Students) observed certain suspicious behavior of the 1st
Year 13 students of CIS, a student (Lok Lok) observed
Matthew and Mary Bersani, and Teresa Ko are all parents of
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school.
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Governors of CIS which has ultimate responsibility for the
held on 24 November 2011.
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and 2nd Plaintiffs and suspected that they might have been
cheating in the test (the Incident). After the test, they
Robert Pagliarello their concern that something suspicious

had happened in the classroom when they were taking the
met the 4 Students a second time in the afternoon of 24

November 2011, and the meeting ended on the basis that he
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(9)
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On 25 November 2011, the 1 Plaintiff separately confronted

Laura as to her involvement in what he termed this whole
econ thing, and Lok Lok as to what she had talked to Mr
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Robert Pagliarello the day before.

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(10) Also on 25 November 2011, Laura received phone called

from friends inquiring about the aforesaid incident relating
to the 1st Plaintiff.
Laura felt uncomfortable about the
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situation and wrote an email to Mr Robert Pagliarello, who

responded that he respected what the 4 Students had done
but they should focus on their examinations in May 2012.
Pagliarello to find out what was going on regarding the

Incident and Report, and they were told by Mr Robert
Pagliarello, inter alia, that they should focus on their
(11) On 28 November 2011, the 4 Students went to see Mr Robert
st
would deal with the matter.
Laura thought that the matter was closed.
test, which they did (the Report). Mr Robert Pagliarello
discussed what they had seen and decided to report to Mr
examinations in May 2012.
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(12) On 29 November 2011, Ms Claire McQuillan and Mr Brian

Mulcahy had a meeting with Laura, Lok Lok and Danielle
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was sick and went home after school. Laura, Lok Lok and
Claire McQuillan and Mr Brian Mulcahy that they would

look into the matter.
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amongst the students of CIS that the 1
st
suspected of having cheated in a test but he got away with it

because his father was a member of the Board of Governors
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of CIS, and such rumours also reaches many parents

including 2nd Defendant, Michelle Chin, Rosa Ling, Anney
Lay and Jenny Chua.
(14) The 2nd Defendant considered that there were 3 particular
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issues of concern which ought to be properly addressed by

the school management of CIS, namely, (i) the said rumours
would send a very unhealthy message to the students and
management, (ii) they would tarnish the image of CIS, and
(iii) the school management had failed to do anything to stop
the rumours from circulating and openly make it clear that
Plaintiff was
erode the confidence that the students had in the school

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(13) In the meantime, there were a lot of rumours circulating
Economics Test on 24 November 2011, and were told by Ms
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after school. Joyce did not attend the meeting because she
Danielle again gave an account of what they had seen in the
the school was fully committed to uphold moral and

academic disciplines and assert the core values of CIS.
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(15) Accordingly, the 2nd Defendant, with the support of the 1st
Defendant, sent the 1 December Email to Ken Pemberton
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President of the CISPTA Chinese International School
when the 1 December Email was sent) in the hope that Ken
the damage to the reputation of CIS and handle the whole

issue appropriately.
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(15A) The 1 December Email, 4 December 1 st Email, 4 December

forwarded by the Defendants to the President of the
CISPTA, relevant staff or teachers of CIS and a number of
school management would properly address the aforesaid
legitimate concerns and act to contain the damage to the
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Dr Theodore Faunce, Mr Justice Alexander, Ms Claire

McQuillan and Mr Brian Mulcahy representing the school
Anney and Danny Lay, Teresa Ko, Eric Wong and Rosa Ling
being some of the concerned parents, was arranged to take
place at CIS on 8 December 2011 (the 8 December
reputation of CIS.
management of CIS, and (ii) the 1 st and 2nd Defendants,

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parents of Year 13 students of CIS with the hope that the
(16) Initiated by the School management, a meeting between (i)
2nd Email and 6 December Email were subsequently sent or
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Theodore Faunce and that the school would act to contain
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Defendants thought were was still the President at the time

Pemberton would bring up the aforesaid concerns with Dr
and Fanny Wong (Ken Pemberton being the Former

Parent-Teacher Association (CISPTA) but whom the
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Meeting).
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(17) For the purpose of the 8 December Meeting, the 2 nd

Defendant prepared the Summary to serve as her notes for
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(18) The 2nd Defendant also distributed by hand a copy of the
December Meeting.
(19) In the Summary, the 2nd Defendant emphasized that there
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properly address, namely, (i) perception (including the

perception
that
cheating
in
examinations
was
not
uncommon, that nothing would be done even after students
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had the courage to bring cases of cheating or suspected

cheating involving their friends to the attention of the school,
and that cases involving children of all powerful board
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members would be swept under the carpet thereby

undermining the students belief in integrity and honestly
and eroding their trust in the system), (ii) lax invigilation
clear, detailed, fair and transparent procedures and
guidelines for handling suspected cheating cases, including
collection of evidence, who would write the report and sign
it, when would parents be involved, how would the
witnesses be protected, and what might be the appeal
Rosa Ling and the 1 Defendant immediately prior to the 8
who would be involved in the investigation of the case and

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standards, and (iii) due process (namely, the setting up of

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meeting.
was three particular issues which the school ought to

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her opening address and set the stage for discussion at the
Summary to Anney and Danny Lay, Teresa Ko, Eric Wong,

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procedures).
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(20) At the 8 December Meeting, the aforesaid school

representatives acknowledged that the issues raised by the
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meeting was concluded on the basis that they would look
(21) On 8 December 2011, Dr Theodore Faunce sent an email to
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the school that the 2nd Defendant and other parents had
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(22) On 14 December 2011, a meeting took place between (i) Dr

Theodore Faunce and Mr Justin Alexander and (ii) Lok Lok
and her mother Christina Wong, Danielle and her mother
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Anney Lay, Laura and her mother Jenny Chua, and Teresa
Ko. At that meeting, Lok Lok recounted what she had seen
regarding the suspicious behaviour of the 1st Plaintiff in the
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Economics Test on 10 November 31 October 2011, and Lok

Lok, Danielle and Laura recounted what they had seen
regarding the suspicious behaviour of the 1st and 2nd
alia, that the school had not acted as quickly as it could have
and had not responded as crisply or clearly to the students
who were involved and that the matter could have been
(23) In the course of the meeting, Dr Theodore Faunce said, inter
revisit the Incident in detail.
the 2 Defendant stating that he appreciated the concerns for
Plaintiffs in the Economics Test on 24 November 2011.
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expressed at the 8 December Meeting and that he would

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parents were serious issues and had to be addressed, and the

into those issues and revisit the Incident.
better handled.
He suggested that there should be final
wrap-up meeting on the next day of all the parents
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concerned, including the 1st Plaintiffs parents, in order to

shake hands. This suggestion was rejected by the parents
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(24) The meeting on 14 December 2011 ended on the basis that

Dr Theodore Faunce would complete the schools inquiry
regarding the outcome of his inquiry and would further issue
(25) On 15 December 2011, Dr Theodore Faunce wrote a letter

(the Decision Letter) to Christina Wong, Anney Lay and
Jenny Chua stating that it had been decided that there we no
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grounds for concluding that the 1st Plaintiff had cheated, and
also that the school understood and appreciated the good
faith with which the 4 Students had brought forward their
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concerns.
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(26) Jenny Chua forwarded a copy of the Decision Letter to the

2nd Defendant on 15 December 2011.
(27) Both Anney Lay and Jenny Chua were not entirely satisfied
with the decision and explanation given by Dr Theodore
an email on 15 December 2011 to Dr Theodore Faunce in

which they expressed the hope that the school had honoured
truth, honestly, fairness, a transparent decision process,
(28) Danny and Anney Lay responded to the Decision Letter by
regarding the schools stance on cheating.
concerned parents present at the meeting and the Lu family
Faunce in the Decision Letter.
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a broad and specific message to the school community

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present at the meeting.
into the Incident shortly and he would communicate with the

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academic honesty, and test room rules when making the

decision, and that the school would also strictly and fairly
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(29) On 16 December 2011 at 00:30 am, the Defendants sent the

16 December Email to Dr Theodore Faunce reiterating that
values of academic integrity, honesty and honour, and
the outcomes of inquiries to the parties involved in order to

improve the transparency of the process.
(30) On 16 December 2011 at around 11:13 am, Dr Theodore
(a)
referring to the widespread concern over the Incident

and the widespread speculation that the 1st Plaintiff
status as Head Boy and even that his fathers position

as CIS Governor had contributed to the affair having
been swept under the rug, with the school having

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done nothing;
(b)
stating that the schools inquiries had led to the

conclusion that there was no evidence of academic
dishonesty on the part of the 1st Plaintiff and thus the
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had been given special consideration because of his
Faunce and Mr Justine Alexander jointly sent a circular to all
dealing with similar cases and the timely communication of
secondary school parents of CIS, inter alia : -
action to deal with the perception issues concerning the core
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suggesting the establishment of a set of sound procedures for

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facilitate punishment for academic dishonesty.
their concerns were not personal, urging the school to take

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matter had been dismissed;

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(c)
reiterating that CIS had never avoided difficult cases

or given special consideration to students on the basis
(d)
applauding the students who had the courage to share
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(31) In the premises, the Defendants and each of the recipients of
the 1 December 2011 Email, 4 December 1
st
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Email, 4
December 2nd Email, 6 December Email, Summary and 16

December 2011 Email had common and corresponding
community; and
their concerns with the teacher.
of their year level or prominence in the school
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duties and/or interests in the issues raised in the publications

complained of in this action.
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A

IN THE HIGH COURT OF THE

1st Plaintiff/1st Appellant

PAUL CHAN MO-PO ()

1st Defendant/1st Respondent

IN THE HIGH COURT OF THE

1st Plaintiff/1st Respondent

PAUL CHAN MO-PO ()

1st Defendant/1st Appellant

Date of Further Written Submissions : 24 October, 7 & 21 November 2016

Date of Hearing : 20-22 July 2016

plaintiff is their father.

The 1 st defendant is the Secretary for

Development, formerly a member of the Legislative Council representing

At the material times, the 1 and 2

defendants daughter were Year 13 (final year) students for 2011-2012 at

3rd plaintiff was a member of the board of governors of CIS (Board of

In November 2011, rumours were circulating amongst the

What followed were several rounds of emails amongst some

of the concerned parents, including the defendants, and between the

December 2011 attended by seven parents including the defendants (the

plaintiffs and the

Chinese International School, a well known international school in Hong

14 December Meeting) where three Year 13 students, accompanied by

Some concerned parents remained dissatisfied with the schools decision

In the end, the CISs school management decided on 15

defendants for defamation arising from their publication of :1

the 1 December Email between 1 and 6 December 2011,

the 4 December 1st Email between 4 and 6 December 2011,

the 4 December 2nd Email on 4 December 2011, containing

the 6 December Email on 6 December 2011, containing the

containing the 1st Offending Words;

an economics test on 24 November 2011.

the Summary on a date in December 2011 for the purposes

1 The nomenclatures of the documents published follow the same that

Email dated 16 December 2011, containing

Offending Words; and

the 16 December Email on 16 December 2011, containing

The plaintiffs complained that the Emails and the Summary

in respect of the 1st and 2nd plaintiffs, they repeatedly cheated

in respect of the 3rd plaintiffs, he dishonestly and improperly

The defendants admitted that they were the publishers of the

The Jurys findings

qualified privilege. In reply, the plaintiffs pleaded malice.

position as a member of the Board of Governors.

Words were defamatory. Alternatively, they relied on the defence of

schools investigation into the cheating by abusing his

in examinations at CIS; and

the 3rd Offending Words.

contained in the 6 December Email, the 2nd Offending Words contained in

Email were all published with malice but the 1

contained in the 1 December Email and the 5th Offending Words

HK$50,000.00 and the 3rd plaintiff, HK$80,000.00.

The matter then went back to To J for his determination on

qualified privilege and costs of the action.3

By a decision handed down on 7 October 2015, the learned

the defendants shall pay 60% of the plaintiffs costs, other

certificate for two counsel;

In respect of costs, the Judge ordered :

the plaintiffs shall pay the defendants costs in respect of the

submissions on qualified privilege with certificate for two

than the costs of the submissions on qualified privilege, with

damages to the 1 plaintiff in the sum of HK$100,000.00; the 2 plaintiff,