Hong Kong’s finance chief and his wife found themselves back in a legal battle on Monday over whether they recklessly defamed two schoolchildren, after the city’s top court gave the green light to the twins and their father to pursue a last-ditch appeal.
That decision brought the latest twist in a legal tussle what began in 2012, and that stems from emails sent a year earlier in which Financial Secretary Paul Chan Mo-po’s wife Frieda Hui Po-ming accused Carl Lu’s children of cheating in a test.
The Court of Final Appeal gave Lu and the two former Chinese International School pupils Jonathan and Caitlin Lu permission to appeal against the Court of Appeal ruling that Chan and Hui were not liable for defaming the twins.
Andrew Caldecott QC, for the Lus, told the top court on Monday that Hui was reckless when she sent six emails to the school and about 10 parents accusing the twins, who were classmates of her daughter, of cheating. During the earlier trial the court heard Hui continued to send the allegedly libellous emails, co-signed by her husband, despite the school telling her it had found no evidence that the pair had cheated.
Hui sent the emails between December 1 and 16, 2011 after hearing the cheating rumours from her daughter, Joyce.
Caldecott said the lower appeal court had erred in failing to consider recklessness capable of constituting malice.
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Without commenting specifically on the present case, Chief Justice Geoffrey Ma Tao-li said if that did not count as malice, “you’re only stupid or illogical.”
He also asked what the court should do when someone completely shuts themselves out from the other side of the story – despite being told it many times – and decides to carry on making defamatory comments. “It seems to be an inroad to malice,” he said.
He and his two fellow Court of Final Appeal permanent judges – Justices Robert Tang Ching and Joseph Fok – therefore granted permission for a final appeal, slated for March 6 and 7 next year.
The appeal will centre on what would amount to recklessness in a defamatory case and whether being reckless would amount to malice. Proof of malice means the alleged defamer cannot use the defence of qualified privilege.
The court will also decide whether the case should go to a retrial, depending on its ruling.
Chan, the city’s former development minister, and his wife were originally ordered to pay HK$230,000 in compensation to the Lus at the Court of First Instance in 2015, after a jury rejected their qualified privilege defence, which hinged on the couple’s claim that they had an interest in communicating, or duty to communicate, with the school and parents.
The jury found that all six emails were defamatory, and that four also contained malice.
But the Court of Appeal ruled that the trial judge had failed to properly inform the jury. It also ruled the “desire” of Chan and Hui to protect the interests of the pupils played a “significant part” in their actions.
Benjamin Yu SC, for Chan and Hui, said on Monday the case had been “blown out of proportion”, and was not the right case for the top court to clarify its legal positions.