The Court of Final Appeal laid down a definitive ruling on the meaning of malice in the context of the qualified privilege defence

10 April 2018

Jonathan Lu & Others v Paul Chan Mo-Po & Another [2018] HKCFA 11

In this important recent decision, in unanimously allowing the Plaintiffs’/Appellants’ appeal, the Court of Final Appeal laid down a definitive ruling on the meaning of malice in the context of the qualified privilege defence.  The judgment was given by Lord Reed NPJ, with whom Ma CJ, Tang and Fok PJJ and Chan NPJ agreed. 

The Court agreed with Lord Nicholls’ exposition in Cheng & Another v Tse Wai Chun (2013) 3 HKCFAR 339 (at 355) that “express malice is to be equated with use of a privileged occasion for some purpose other than that for which the privilege is accorded by the law”, which, as the Court observed, is consistent with Lord Diplock’s analysis in Horrocks v Lowe [1975] AC 135 (at 149) that “if [the defendant] uses the occasion for some other reason he loses the protection of the privilege.”  The Court acknowledged that issues concerning the defendant’s state of mind in relation to the truth or falsity of what is communicated sometimes caused particular difficulty in practice, but emphasized that in relation to such issues, evidence bearing on the defendant’s knowledge or belief as to the truth or falsity of what is communicated is only relevant in so far as it affects the critical question of whether the defendant used the occasion for a purpose other than that for which the privilege was accorded.  The Court further observed that the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose, and that “recklessness” is to be understood in the sense described by Lord Diplock in Horrocks v Lowe: that is to say, “without considering or caring whether it be true or not” (at 150).

As the Court observed, the Court of Appeal was influenced by the approach to malice adopted in the High Court of Australia by Gaudron, McHugh and Gummow JJ in their joint judgment in Roberts v Bass (2002) 212 CLR 1, including in particular the proposition that recklessness as to the truth of a defamatory imputation was sufficient to support a finding of malice only if it amounted to wilful blindness: less serious recklessness, such as indifference to the truth or falsity of the imputation, could support a finding of malice only if presented with some other state of mind, such as gross, unreasoning prejudice, or anger.  The Court held that if the authors of the joint judgment intended to introduce into the general law of defamation a distinction between different kinds of recklessness, or to interpret Lord Diplock’s speech in Horrocks v Lowe as having adopted such a distinction, then that approach should not be adopted so far as the law of Hong Kong is concerned, as Lord Diplock’s analysis is clear, and remains authoritative in the law of Hong Kong.

Lawrence K F Ng (with Andrew Caldecott QC and Gerard McCoy SC) appeared for the Plaintiffs/Appellants in the Court of Final Appeal. 

Please click here to see full judgment

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