[2000-11-14]
【本報訊】律師謝偉俊控告電台節目主持人鄭經翰及林旭華誹謗一案，終審法院昨日指原審法官在引導陪審團時犯錯，五位法官一致裁定二人上訴得直，但案件須發還高院重審，而謝偉俊須繳付上訴庭及終審法院的訴訟費。他本人說，全部費用需要過千萬元，鄭經翰則估計費用會高達一千五百萬至二千萬元。
李啟新在長達三十二頁的判詞中指出，原審法庭法官袁家寧引導陪審團作判決時，在界定鄭經翰及林旭華的言論是否有「惡意」上犯錯。
當時原審法官除了向陪審員解釋「惡意」的定義外，更向陪審員提出連串問題，去考慮鄭、林的動機，有否超越評論的目的，若有就是含有惡意誹謗。
不過，李啟新的判詞則指出，只要個人誠實相信所表達的意見及評論是真實的，不論是否存有不良動機，即使可能令原訟人尷尬又或對他造成偏見，都不應被視為惡意，可以算是「公允評論」，受到言論自由的保障。
這宗糾纏四年多的官司爭端起源於九六年，港人區永祥及黃詮明在菲律賓因「販毒」被判終身監禁，謝偉俊及鄭經翰均有參與營救，但兩人意見有分歧。
後區及黃獲菲律賓政府釋放回港，鄭林二人在電台節目中指出，謝偉俊教唆區不要向僱主追討損失，遂遭謝偉俊指言論失實，提出訴訟，經高院裁決後鄭及林敗訴，須賠償八萬元名譽損失及兼付堂費，二人不服上訴至終審法院。
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「誹謗」是一個民事侵權行為（Tort），籠統地說，是指發布一些傷害別人名譽的文字或信息。最常見的辯護理由，有「有理可據」（Justification）和「公正評論」（Fair
Comment）兩個。當有關的誹謗文字屬事實陳述（Statement of Fact）的時候，前者適用；當有關的誹謗文字屬評論性質（Statement of Opinion）的時候，後者適用。終審法院在「謝」案的判決，純粹是針對「公正評論」。
被告人和涉案的文字必須符合以下各項條件才可以引用「公正評論」這辯護理由：─
1. 誹謗的文字屬評論性質，而不是事實陳述；
2. 有關的評論涉及一個有關公眾利益的課題；
3. 有關的評論是基於事實所作出；
4. 客觀來說，該評論是一個誠實的人可以基於有關的事實而作出的。（Capable of Being Made by an
Honest Person）。
以上提及的法律原則，在「謝」案中並未受任何一方質疑，終審法院的判詞，也對以上原則加以肯定(見英文判詞第五至六頁─李啟新非常任法官)。
主觀舉證階段惹爭議
那麼，「謝」案的爭議點在哪裡呢?
普通法一直都確認，就算被告人符合了上述所有的「客觀」條件，原告人仍然可以向法院舉證，證實被告人發布言論的主觀出發點有問題。假如原告在這階段的舉證成功的話(而舉證的責任在原告)，「公正評論」的辯護理由便不能成立。
證明言論「別有用心」不足夠
「謝」案的爭論點，正在「主觀」的階段。在「謝」案終院判決之前，一般的法律書籍和法官，都認為假如原告可以在這主觀階段證明被告人是出於「惡意」(Malice)，公正評論便不能成立。一直以來法律界對「惡意」的理解是(概括來說):(一)被告人根本不是真誠相信或持有自己發表的意見，或者(二)被告人另有意圖(例如說打擊某人，或給予壓力某人)(Ulterior
Purpose)。
「謝」案的原審法官和上訴庭都認為，就算被告真誠持有或相信自己所作的言論，假如他的出發點是為了攻擊原告或有其他的意圖，那麼，法律上這仍屬「惡意」。但終審法院不同意，認為在「主觀階段」，原告必須要證明被告並非真誠持有自己所發表的言論(比方說，被告為攻擊而攻擊，而不理會所說的話是否代表自己內心真正的意見)，單憑證明被告「別有用心」並不足夠。
這個判決對媒介和評論人的影響，和法律應否保障蓄意攻擊別人的文章，大家當然可各抒己見，筆者在此不加評論。但是，馬力先生在「誹謗新判例助長大聲政治」一文中有幾點值得商榷的地方，筆者不得不在此指出討論:
在他的文章的首二段，馬先生正確地列舉「公正評論」的客觀條件(包括要有事實支持一項)。但在文章中部馬先生說:「在這種法制下，只要真誠相信就可當為事實，不需要尋求真相……」。但是終院的判決從沒有說只要真誠相信，便不需尋求事實。相反，終院的裁決明確承認「公正評論」的各項客觀條件。如果言論沒有真相和事實支持，辯護便會失敗，也毋須分析至「主觀階段」，這基本的法則，從沒變過。
普通法 言論無對錯之分
馬先生又說，「新的詮釋放棄了對傳媒和評論員的高標準要求，使一些人可以用錯誤的評論來誤導群眾……」終院的裁決也從沒有這樣說。馬先生的論據假設言論有「對錯」之分。普通法下，「言論無對錯之分」。假如言論過份離題，或是未能符合上述客觀條件(四)，辯護理由自然會不成立。但這與「對錯」無關，「謝」案前如是，「謝」案後也如是。
另外馬先生有數點對李啟新非常任法官的言論，筆者覺得也有探討的需要。馬先生說李啟新是「空降法官」，「對香港社會毫無認識……不懂中文，不會聽電台節目，不知道社會輿論，因此，在判案時往往忽略了社會因素，判決完全不符合社會現實」。對此，筆者有以下的意見:
法律意見一致 不怕「空降」
1. 終審法院面對的是一個純法律的問題，與實際涉案所用的字眼無關。終院的判決並不是說涉案的字眼屬抑或不屬誹謗。法官懂不懂中文全不相干(況且本案涉案的文件全被翻譯)。
2. 終院的裁決是一致的，其他四位法官都同意李啟新非常任法官的判詞。
3. 李國能首席法官於判詞第二頁所提到言論自由在香港社會的價值，正正代表終院對香港社會因素及價值觀的判斷(其餘四位法官對此判詞也表同意)。
馬先生也許對言論自由在香港社會應佔的地位有自己的不同意見，這意見他絕對有權提出。但這並不代表法院(尤其是外籍的非常設法官)忽視(或沒有考慮)社會因素。馬先生可能不同意法院對社會因素及價值的理解，但這絕不是一個可以用作批評本案外籍非常設法官的理據。
石永泰大律師
二零零零年十二月五日
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Lord
Nicholls of Birkenhead NPJ’s main judgment, restating the defence of fair
comment in defamation and how that defence may be defeated by proof of ‘malice’
by distinguishing that issue from the issue of the same name in the context of
the defence of qualified privilege
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ALBERT CHENG AND ANOTHER v. TSE WAI CHUN
PAUL [2000] HKCFA 35; [2000] 3 HKLRD 418; (2000) 3 HKCFAR 339; [2000] 4 HKC 1;
FACV12/2000 (13 November 2000)
FACV000012/2000
FACV No. 12 of 2000
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 12 OF 2000 (CIVIL)
(ON APPEAL FROM CACV NO. 170 OF 1998)
_____________________
Between:
ALBERT CHENG
1st Appellant
LAM YUK WAH
2nd Appellant
AND
TSE WAI CHUN PAUL
Respondent
_____________________
Court:
Chief Justice Li, Mr Justice Bokhary PJ, Mr
Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
Dates of Hearing: 24, 25, 26, and 27
October 2000
Date of Judgment: 13 November 2000
____________________
J U D G M E N T
____________________
Chief Justice Li :
1. I am in complete agreement with the
judgment of Lord Nicholls of Birkenhead NPJ.
The freedom of speech
2. The freedom of speech (or the freedom of
expression) is a freedom that is essential to Hong Kong's civil society. It is
constitutionally guaranteed by the Basic Law (Article 27). The right of fair
comment is a most important element in the freedom of speech.
3. In a society which greatly values the
freedom of speech and safeguards it by a constitutional guarantee, it is right
that the courts when considering and developing the common law should not adopt
a narrow approach to the defence of fair comment. See Eastern Express Publisher
Ltd v. Mo Man Ching (1999) 2 HKCFAR 264 at 278. The courts should adopt a generous
approach so that the right of fair comment on matters of public interest is
maintained in its full vigour.
Written directions to the jury
4. The question of the use of written
directions to the jury arose in this appeal. This matter is relevant to both
civil and criminal trials with a jury. It may assist trial judges if some
guidance is given on this question.
5. In this case, the judge gave the jury a
handout of over 10 pages. The judge did so with the best of intentions to try
to assist the jury in a case where the issues were of some complexity. The
handout consisted of notes on the law and the burden of proof relating to the
various issues the jury had to decide. When the judge came to the issues in
question during the summing up, the jury was given the relevant pages. The
judge then dealt and elaborated on the matters covered by the handout. Counsel
had not been consulted on the contents on the handout. In fact, the judge had
not informed them that a handout would be given to the jury. They learnt of
this and were given the handout at the same time as the jury. In my view, it
was not satisfactory that counsel were not given prior notice of the contents
of the note.
6. In both civil and criminal trials, where
the case is complicated, the judge may consider it appropriate to give a note
to the jury relating to matters covered by the summing up in order to assist
the jury. It would of course be entirely a matter for the judge to decide
whether to have such a note, having regard to the circumstances of the case.
The note should be part of the summing up. The judge should explain to the jury
the purpose of the note and how it forms part of the summing up. This was done
in the present case.
7. Where the judge decides to use such a
note, it should normally be given to counsel for their consideration a
reasonable time before they begin their closing speeches. This was not done in
the present case. As was pointed out in the context of a criminal case in R v.
McKechnie (1992) 94 Cr. App. R. 51 at 63, this would serve two purposes.
8. First, this would give counsel the
opportunity to make submissions to the judge concerning the note and possible
changes to its contents. It would of course be a matter entirely for the judge
whether to accede to their submissions. But he should inform counsel of his
view on those submissions before they begin their closing addresses. Secondly,
counsel would know how the judge proposes to approach the matters dealt with in
the note in the summing up so that they can take this into account when
delivering their closing addresses.
Costs
9. As Lord Nicholls of Birkenhead NPJ
pointed out, the legal arguments on the issue of malice raised before the Court
of Appeal and this Court were not raised before the judge. No argument was
advanced before the judge that the motives particularised under head (3) and
(4) would not in law defeat the defence of fair comment.
10. In the circumstances, I would make the
following order nisi on costs: (1) There be no order as to costs before the
judge. (2) The respondent should pay the appellants' costs in the appeal to the
Court of Appeal and this Court.
11. Any party challenging this order nisi
should send in written submissions (copied to the other parties) within 21 days
from today. The Court will decide on the basis of the written submissions
received within this period. If no written submissions are received by the
expiry of this period, the above order nisi will become absolute.
Mr Justice Bokhary PJ :
12. I agree with the judgment of Lord
Nicholls of Birkenhead NPJ. So complete is my agreement therewith that I do not
propose to offer anything of my own even though we are differing from the Court
of Appeal on a point of law of profound and, indeed, constitutional importance.
I agree also with everything which the Chief Justice says.
Mr Justice Ribeiro PJ :
13. I agree with the judgment of Lord
Nicholls of Birkenhead NPJ and the judgment of the Chief Justice.
Sir Denys Roberts NPJ:
14. I agree with the judgment of Lord
Nicholls of Birkenhead NPJ and the judgment of the Chief Justice.
Lord Nicholls of Birkenhead NPJ:
15. This is an appeal in a defamation
action. It raises an important point on the defence of fair comment. The title
of this defence is misleading. Comment, or honest comment, would be a more
satisfactory name. In this judgment I adhere, reluctantly, to the traditional
terminology.
Fair comment: the objective limits
16. In order to identify the point in issue
I must first set out some non-controversial matters about the ingredients of
this defence. These are well established. They are fivefold. First, the comment
must be on a matter of public interest. Public interest is not to be confined
within narrow limits today: see Lord Denning in London Artists Ltd v. Littler
[1969] 2 QB 375, 391.
17. Second, the comment must be
recognisable as comment, as distinct from an imputation of fact. If the
imputation is one of fact, a ground of defence must be sought elsewhere, for
example, justification or privilege. Much learning has grown up around the
distinction between fact and comment. For present purposes it is sufficient to
note that a statement may be one or the other, depending on the context.
Ferguson J gave a simple example in the New South Wales case of Myerson v.
Smith's Weekly (1923) 24 SR (NSW) 20, 26:
"To say that a man's conduct was dishonourable is not comment, it
is a statement of fact. To say that he did certain specific things and that his
conduct was dishonourable is a statement of fact coupled with a comment".
18. Third, the comment must be based on
facts which are true or protected by privilege : see, for instance, London
Artists Ltd v. Littler [1969] 2 QB 375, 395. If the facts on which the comment
purports to be founded are not proved to be true or published on a privilege
occasion, the defence of fair comment is not available.
19. Next, the comment must explicitly or
implicitly indicate, at least in general terms, what are the facts on which the
comment is being made. The reader or hearer should be in a position to judge
for himself how far the comment was well founded.
20. Finally, the comment must be one which
could have been made by an honest person, however prejudiced he might be, and
however exaggerated or obstinate his views: see Lord Porter in Turner v.
Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 AER 449, 461, commenting on an
observation of Lord Esher MR in Merivale v. Carson (1888) 20 QBD 275, 281. It
must be germane to the subject matter criticised. Dislike of an artist's style
would not justify an attack upon his morals or manners. But a critic need not
be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip
his pen in gall for the purposes of legitimate criticism: see Jordan CJ in
Gardiner v. Fairfax (1942) 42 SR (NSW) 171, 174.
21. These are the outer limits of the
defence. The burden of establishing that a comment falls within these limits,
and hence within the scope of the defence, lies upon the defendant who wishes
to rely upon the defence.
Malice
22. That is not the end of the matter. Even
when a defendant has brought his case within these limits, he will not
necessarily succeed. The plaintiff may still defeat ('rebut') the defence by
proving that when he made his comment the defendant was, in the time-hallowed
expression, 'actuated by malice'.
23. It is here that the storm clouds begin
to appear. In ordinary usage malice carries connotations of spite and ill-will.
This is not always so in legal usage. In legal usage malice sometimes bears its
popular meaning, sometimes not. It is an imprecise term. Historically, even
within the bounds of the law of defamation, malice has borne more than one
meaning. Historically, defamation lay in publishing the words complained of
'falsely and maliciously'. In this context malice meant merely that publication
had been a wrongful act, done intentionally and without lawful excuse: see
Bayley J in Bromage v. Prosser (1825) 4 B&C 247, 255. This was sometimes
called malice in law, as distinct from malice in fact. But even malice 'in
fact', otherwise known as express malice or actual malice, may cover states of
mind which are not malicious in the ordinary sense of the word. This is so in
the context of the defence of qualified privilege. It is no wonder that Lord
Bramwell described malice as 'that unfortunate word': see Abrath v. North
Eastern Railway Co (1886) 11 App Cas 247, 253.
24. The question raised by this appeal
concerns the meaning of malice in the context of the defence of fair comment.
On this, two matters are clear. First, unlike the outer limits (as I have
called them) of the defence of fair comment, which are objective, malice is
subjective. It looks to the defendant's state of mind. Second, malice covers
the case of the defendant who does not genuinely hold the view he expressed. In
other words, when making the defamatory comment the defendant acted
dishonestly. He put forward as his view something which, in truth, was not his
view. It was a pretence. The law does not protect such statements. Within the
objective limits mentioned above, the law protects the freedom to express
opinions, not vituperative make-believe.
The legal issue on this appeal
25. The point of principle raised by this
appeal, crucial to the outcome of the action, is whether, in contemplation of
law, malice may exist in this context even when the defendant positively
believed in the soundness of his comment. More specifically, the issue is
whether the purpose for which a defendant stated an honestly held opinion may
deprive him of the protection of the defence of fair comment; for instance, if
his purpose was to inflict injury, as when a politician seeks to damage his
political opponent, or if he was simply acting out of spite.
26. One would have expected that this basic
issue in respect of the much-used defence of fair comment would have been
settled long ago. This is not so. The meaning of malice has been
comprehensively analysed in relation to the defence of qualified privilege,
most notably in the speech of Lord Diplock in Horrocks v. Lowe [1975] AC 135.
But no similar exposition has been undertaken regarding fair comment. Indeed,
there has been surprisingly little judicial discussion of this subject over the
last 150 years. Most textbooks incline to the view that, as with qualified
privilege, so with fair comment, the defence of an honest defendant may be
vitiated by the motive with which the words were published. The (English)
Report of the Committee on Defamation, published in 1975, stated that under the
present state of the law a person was acting maliciously where he was dishonest
or reckless 'or actuated by spite, ill-will, or any other indirect or improper
motive': see para. 153. On this appeal the defendants challenged this view of
the law.
Mr Au's arrest and release
27. Before proceeding further I must say
what the present case is about and how this legal issue has arisen. The case
arose from an incident which was something of a cause celebre at the time. In
September 1991 Mr Au Wing Cheung was employed as a tour escort by Select Tours
International Co Ltd. After just a few weeks of work he was instructed to lead
a tour group to the Philippines. On 7 September 1991, when the tour group was
going through the customs in Manila airport, Mr Au and a member of the tour
group, Mr Wong Chuen Ming, were arrested together with a number of other
members of the group, for trafficking in a drug colloquially known as 'ice'. Mr
Au and Mr Wong were prosecuted, convicted and sentenced to life imprisonment by
the court in the Philippines.
28. These happenings attracted much
publicity in Hong Kong. Some people believed Mr Au and Mr Wong were innocent.
They formed various groups organising campaigns seeking their release. One of
these groups was the Tourist Industry Rescue Group, of which Select Tours was a
member and the plaintiff, Mr Tse Wai Chun Paul, its honorary legal adviser. Mr
Tse is a solicitor. The first defendant, Mr Albert Cheng, had organised another
group. Various other activities were aimed at the same objective.
29. As a result of the campaigns by these
various groups, Mr Au and Mr Wong were released by the government of the
Philippines in July 1996. They made a triumphal return to Hong Kong,
accompanied by Mr Tse and Mr Cheng and others. Understandably, different people
claimed credit for the successful return of Mr Au and Mr Wong.
The radio programme
30. Meanwhile, on 2 December 1991 Select
Tours had ended Mr Au's employment. After his return to Hong Kong a question
arose over whether Mr Au should claim compensation from his former employer for
the period of his imprisonment in the Philippines, on the ground that he was
arrested and incarcerated while carrying out his duties as an employee.
Apparently, Mr Cheng and others urged Mr Au to make a claim, while Mr Tse
advised him not to do so.
31. On 1 August 1996 Mr Cheng and Mr Lam
Yuk Wah were co-hosts of a phone-in radio talk show broadcast on the Chinese
channel of the commercial radio station run by Hong Kong Commercial
Broadcasting Co Ltd. Mr Cheng and Mr Tse were already at loggerheads over the
rescue operation. Mr Lam had not been involved in the rescue operation, nor had
he previously dealt with Mr Tse. The programme, 'Teacup in a Storm', was a
well-known weekday morning programme on political and social affairs.
32. Part of the programme consisted of a
conversational dialogue in Cantonese between the two hosts, Mr Cheng and Mr
Lam. Mr Tse took exception to remarks made in the course of this dialogue. So
he commenced this action against Mr Cheng, Mr Lam and Hong Kong Commercial
Broadcasting Co Ltd.
The court proceedings
33. The three defendants raised identical
defences: the statements did not refer to Mr Tse and were not defamatory, they
were true or substantially true, and in so far as they consisted of expressions
of opinion they were fair comment on a matter of public interest. In reply, Mr
Tse pleaded that the defendants made the statements maliciously.
34. The action was tried by Yuen J sitting
with a jury. The jury held in favour of the broadcasting company, but against
the two individual defendants. They awarded $80,000 damages.
35. Although the jury gave a general
verdict against each defendant, and did not give a special verdict on
particular issues, it is possible to draw certain inferences from the verdicts.
The presence or absence of malice was the one respect in which a distinction
could be drawn between any of the defendants. Otherwise the position of all
three defendants was identical. So, having decided against the two individual
defendants but in favour of the broadcasting company, the jury must have found
one or more of the particulars of malice proved against the individual
defendants. Had the jury found for them on the question of malice, they too
would have obtained favourable verdicts. Hence, so far as the individual
defendants were concerned, the presence or absence of malice became the
decisive factor in the case.
36. The two unsuccessful defendants
appealed to the Court of Appeal, principally on the ground that the judge had
misdirected the jury on the issues relating to malice. The Court of Appeal,
comprising Chan CJHC and Leong and Wong JJA, dismissed the appeal. Mr Cheng and
Mr Lam appealed further, to this Court. They renewed their challenge to the
correctness and adequacy of the judge's summing up on the issue of malice. In
fairness to the trial judge, it should be noted that the issues raised before
the Court of Appeal and this court were not raised before her. I should also
record that Yuen J plainly took enormous trouble to make her summing up clear
and simple.
The defamatory comments and the alleged
malice
37. The thrust of Mr Tse's complaint
against the defendants was that the words complained of meant, and would be
understood as meaning, that Mr Tse had improperly influenced Mr Au into not
pursuing a claim against Select Tours. In advising Mr Au, Mr Tse had acted
unethically and unprofessionally. He had allowed himself to be put into a
position of conflict of interest. He had given his advice without regard to Mr
Au's interests and with a view to protecting the interests of the travel
industry. Further, in deciding not to pursue a compensation claim against
Select Tours Mr Au had been subject to threats and intimidation by Mr Tse and
others.
38. In response to the defendants' reliance
on the defence of fair comment, Mr Tse asserted that in making and broadcasting
their defamatory comments the defendants were actuated by malice. Malice was
particularised as follows:
(1) [The individual defendants knew their comments were untrue.]
(2) They were reckless as to whether their comments were true or false.
(3) They made their comments with the following motives:
(a) to persuade Mr Au into pursuing a compensation claim against Select
Tours
(b) to pressurize Select Tours into paying compensation to Mr Au
(c) to gratify their animosity [against Mr Tse and] against Select Tours
(d) [to belittle the efforts of Mr Tse, in contrast to those of Mr
Cheng, in assisting Mr Au.]
(4) They made their comments with a view to raising a new controversy,
and thereby arousing the public's interest in continuing to listen to the
'Teacup in a Storm' programme.
The trial judge ruled that there was no
evidence on malice against the corporate defendant. She made a similar ruling
regarding some of the allegations against Mr Lam. For completeness, although
nothing turns on this for the purposes of this appeal, I have enclosed in
square brackets the particulars which applied only to Mr Cheng.
Motive
39. The soundness of the judge's direction
to the jury cannot be determined without first deciding whether the states of
mind alleged in these particulars would, in law, constitute malice. There is no
difficulty with items (1) and (2). Honesty required that the defendants
genuinely believed the comments they made. Anything less would not do. If they
knew their comments were untrue, or were recklessly indifferent to the truth or
falsity of their comments, they were acting dishonestly.
40. Items (3) and (4) raise the question of
the relevance of motive. Before turning to the authorities I shall go back to
first principles. Proof of malice is the means whereby a plaintiff can defeat a
defence of fair comment where a defendant is abusing the defence. Abuse
consists of using the defence for a purpose other than that for which it
exists. The purpose for which the defence of fair comment exists is to
facilitate freedom of expression by commenting on matters of public interest.
This accords with the constitutional guarantee of freedom of expression. And it
is in the public interest that everyone should be free to express his own,
honestly held views on such matters, subject always to the safeguards provided
by the objective limits mentioned above. These safeguards ensure that
defamatory comments can be seen for what they are, namely, comments as distinct
from statements of fact. They also ensure that those reading the comments have
the material enabling them to make up their own minds on whether they agree or
disagree.
41. The public interest in freedom to make
comments within these limits is of particular importance in the social and
political fields. Professor Fleming stated the matter thus in his invaluable
book on The Law of Torts, 9th edition, p 648:
".. untrammelled discussion of public affairs and of those
participating in them is a basic safeguard against irresponsible political
power. The unfettered preservation of the right of fair comment is, therefore,
one of the foundations supporting our standards of personal liberty."
42. The purpose and importance of the
defence of fair comment are inconsistent with its scope being restricted to
comments made for particular reasons or particular purposes, some being
regarded as proper, others not. Especially in the social and political fields,
those who make public comments usually have some objective of their own in
mind, even if it is only to publicise and advance themselves. They often have
what may be described as an 'ulterior' object. Frequently their object is
apparent, but not always so. They may hope to achieve some result, such as
promoting one cause or defeating another, elevating one person or denigrating
another. In making their comments they do not act dispassionately, they do not
intend merely to convey information. They have other motives.
43. The presence of these motives, and this
is of crucial importance for present purposes, is not a reason for excluding
the defence of fair comment. The existence of motives such as these when
expressing an opinion does not mean that the defence of fair comment is being
misused. It would make no sense, for instance, if a motive relating to the very
feature which causes the matter to be one of public interest were regarded as
defeating the defence.
44. On the contrary, this defence is
intended to protect and promote comments such as these. Liberty to make such
comments, genuinely held, on matters of public interest lies at the heart of
the defence of fair comment. That is the very object for which the defence
exists. Commentators, of all shades of opinion, are entitled to 'have their own
agenda'. Politicians, social reformers, busybodies, those with political or
other ambitions and those with none, all can grind their axes. The defence of
fair comment envisages that everyone is at liberty to conduct social and
political campaigns by expressing his own views, subject always, and I repeat
the refrain, to the objective safeguards which mark the limits of the defence.
45. Nor is it for the courts to choose
between 'public' and 'private' purposes, or between purposes they regard as
morally or socially or politically desirable and those they regard as
undesirable. That would be a highly dangerous course. That way lies censorship.
That would defeat the purpose for which the law accords the defence of freedom
to make comments on matters of public interest. The objective safeguards,
coupled with the need to have a genuine belief in what is said, are adequate to
keep the ambit of permissible comment within reasonable bounds.
Spiteful comments
46. One particular motive calls for special
mention: spite or ill-will. This raises a difficult point. I confess that my
first, instinctive reaction was that the defence of fair comment should not be
capable of being used to protect a comment made with the intent of injuring
another out of spite, even if the person who made the comment genuinely
believed in the truth of what he said. Personal spite, after all, is four
square within the popular meaning of malice. Elsewhere the law proscribes
conduct of this character; for instance, in the field of nuisance, as
exemplified by the well known case of the householder who made noises on
musical instruments with the intention of annoying his neighbour (Christie v.
Davey [1893] 1 Ch 316).
47. On reflection I do not think the law
should attempt to ring-fence comments made with the sole or dominant motive of
causing injury out of spite or, which may come to much the same, causing injury
simply for the sake of doing so. In the first place it seems to me that the
postulate on which this problem is based is a little unreal. The postulate
poses a problem which is more academic than practical. The postulate is that
the comment in question falls within the objective limits of the defence. Thus,
the comment is one which is based on fact; it is made in circumstances where
those to whom the comment is addressed can form their own view on whether or
not the comment was sound; and the comment is one which can be held by an
honest person. This postulate supposes, further, that the maker of the comment
genuinely believes in the truth of his comment. It must be questionable whether
comments, made out of spite and causing injury, are at all likely to satisfy
each and every of these requirements. There must be a query over whether, in
practice, there is a problem here which calls for attention.
48. Moreover, in so far as this situation
is ever likely to arise, it is by no means clear that the underlying public
interest does require that the person impugned should have a remedy. Take the
case of a politician or a journalist who genuinely believes that a minister is
untrustworthy and not fit to hold ministerial office. Facts exist from which an
honest person could form that view. The politician or journalist states his
view, with the intention of injuring the minister. His reason for doing so was
a private grudge, derived from a past insult, actual or supposed. I am far from
persuaded that the law should give the minister a remedy. The spiteful
publication of a defamatory statement of fact attracts no remedy if the
statement is proved to be true. Why should the position be different for the
spiteful publication of a defamatory, genuinely held comment based on true
fact?
49. There is a further consideration. The
law of defamation is, in all conscience, sufficiently complex, even tortuous,
without introducing further subtle distinctions which will be hard to explain
to a jury. The concept of intent to injure is easy enough. But, as already
noted, intent to injure is not inconsistent with the purpose for which the
defence of fair comment exists. So, if spite and cognate states of mind are to
be outlawed for the purposes of this defence, the directions to the jury would
have to be elaborate and sophisticated.
50. The combination of all these factors
seems to me to point convincingly away from treating spiteful comments as
forming a category of their own. This is, of course, very much a question of
policy. I shall turn to the authorities in a moment. But I am comforted by
noting that others who have considered this problem in recent years have come
to the same conclusion. In England Mr Justice Faulks' Committee on Defamation,
already mentioned, recommended that the defendant's genuine opinion should
replace malice as the relevant test: see paragraph 159. In New South Wales the
same test has been adopted, in section 32 of the Defamation Act 1974 ('the
comment did not represent the opinion of the defendant'). Likewise in New
Zealand, in section 10 of the Defamation Act 1992 ('the defendant's genuine
opinion'), although there the defence goes even more widely, as there is now no
requirement that the opinion must be on a matter of public interest.
Horrocks v. Lowe
51. I now turn to the authorities. As
already indicated, there is no decision directly on the point now under
consideration. It is no doubt for this reason that textbook writers have sought
to fill the gap by resorting to the decision of the House of Lords in Horrocks
v. Lowe [1975] AC 135, even though that case related to a different defence,
the defence of qualified privilege. In the absence of any clear guidance, it is
temptingly easy to assume that malice must bear the same meaning in all
respects for both defences. It is essential, therefore, to consider the
reasoning which underlies Lord Diplock's authoritative analysis of malice for
the purposes of the defence of qualified privilege, with a view to seeing how
far it is applicable to the defence of fair comment. As will appear, I believe
that misapplication of this analysis is largely responsible for the erroneous
statements of the law in some of the textbooks.
52. In a much-quoted passage, at page 150,
Lord Diplock said this:
"Even a positive belief in the truth of what is published on a
privileged occasion ... may not suffice to negative express malice if it can be
proved that the defendant misused the occasion for some purpose other that that
for which the privilege is accorded by the law. The commonest case is where the
dominant motive which actuates the defendant is not a desire to perform the
relevant duty or to protect the relevant interest, but to give vent to his
personal spite or ill will towards the person he defames."
53. Lord Diplock continued by noting that
there may be other improper motives which destroy the privilege. He instanced
the case where a defendant's dominant motive may have been to obtain 'some
private advantage unconnected with the duty or the interest which constitutes
the reason for the privilege'.
54. Lord Diplock's observations are in
point to the extent that they enunciate the principle 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. The same approach is applicable
to the defence of fair comment. Beyond that his observations do not assist in
the present case, because the purposes for which the law has accorded the
defence of qualified privilege and the defence of fair comment are not the
same. So his examples of misuse of qualified privilege cannot be carried across
to fair comment without more ado. Instances of misuse of qualified privilege
may not be instances of misuse of fair comment. What amounts to misuse of fair
comment depends upon the purposes for which that defence exists.
55. I must make good my statement that the
purposes for which the two defences exist are not the same. The rationale of
the defence of qualified privilege is the law's recognition that there are
circumstances when there is a need, in the public interest, for a particular
recipient to receive frank and uninhibited communication of particular
information from a particular source: see Reynolds v. Times Newspapers Ltd
[1999] 3 WLR 1010, 1017. Traditionally, these occasions have been described in terms
of persons having a duty to perform or an interest to protect in providing the
information. If, adopting the traditional formulation for convenience, a
person's dominant motive is not to perform this duty or protect this interest,
he is outside the ambit of the defence. For instance, if a former employer
includes defamatory statements in an employment reference with the dominant
purpose of injuring the former employee, the former employer is misusing the
privileged occasion and this will vitiate his defence of qualified privilege.
56. The rationale of the defence of fair
comment is different, and is different in a material respect. It is not based
on any notion of performance of a duty or protection of an interest. As already
noted, its basis is the high importance of protecting and promoting the freedom
of comment by everyone at all times on matters of public interest, irrespective
of their particular motives. In the nature of things the instances of misuse of
privilege highlighted by Lord Diplock (for example, 'some private advantage
unconnected with the duty or interest which constitutes the reason for the
privilege') are not necessarily applicable to fair comment. A failure to
appreciate this has, I fear, led some textbook writers into the error of
suggesting that parts of Lord Diplock's observations are equally applicable to
the defence of fair comment even though they lack the rationale on which the
observations were founded. Halsbury's Laws of England, (4th ed, reissue), vol.
28, para.149, page 78, has succumbed in this way. Malice is defined as ill will
or spite towards the plaintiff 'or any indirect or improper motive in the
defendant's mind'. The authority cited for this proposition is Horrocks v.
Lowe. The authors add: 'it seems that the same principles apply to the defence
of fair comment'. Gatley on Libel and Slander (9th ed), page 426, points the
reader in the same direction:
"It is submitted that the authorities on malice in the different
contexts of fair comment and qualified privilege are essentially
interchangeable, save for the necessary limitations imposed by the nature of
each defence.",
See also Carter-Ruck on Libel and Slander
(5th ed), at page 116, and Winfield and Jolowicz on Tort (15th ed), at page
427.
57. A similar failure to recognise the
difference in the rationale of the two defences may have influenced the
language of judicial observations in the earlier cases. This would hardly be
surprising, because the defence of fair comment grew from the defence of
qualified privilege in the latter half of the nineteenth century. Too much
weight should not be attached to the precise phrasing of observations made at a
time when the defence of fair comment had not emerged fully from the shadow of
its parent. These observations have to be read in their historical context, as
part of the gradual evolution of a defence whose width and importance have
grown considerably and whose rationale is more broadly based than perhaps was
once the case.
58. As late as 1872, in Henwood v. Harrison
(1871-72) LR 7 CP 606, 621, the Court of Common Pleas regarded fair comment as
part of the defence of qualified privilege. Willes J and the majority of the
court treated the right of every man to discuss freely any subject in which the
public are generally interested, so long as he does it 'honestly and without
malice', as a privilege 'of the same character' as employment references. In
1887 this exposition attracted criticism from Bowen LJ in Merivale v. Carson
(1888) 20 QBD 275, 282-283.
59. Despite this, uncertainty persisted. In
1906, in Thomas v. Bradbury, Agnew & Co Ltd [1906] 2 KB 627 counsel
submitted to the Court of Appeal that the views of Willes J in Henwood v.
Harrison were to be preferred, as resting 'upon principle.' Collins MR said, at
page 640:
"Proof of malice may take a criticism prima facie fair outside the
right of fair comment, just as it takes a communication prima facie privileged
outside the privilege ... the two rights, whatever name they are called by, are
governed by precisely the same rules".
So the parallel was still regarded as close
and helpful.
The fair comment cases
60. I turn to the very few cases where the
question of malice has been touched upon in relation to the defence of fair
comment. Merivale v. Carson (1888) 20 QBD 275 concerned a newspaper review of a
theatre production. The issue of malice was withdrawn from the jury, but Lord
Esher MR, at pages 281-282, made a passing observation to the effect that a
dishonest intention to injure the author would make the criticism a libel,
because the comment would not then really be a criticism of the work: 'the mind
of the writer would not be that of a critic'. Bowen LJ, at page 285, described
a malicious motive as 'some motive other than that of a pure expression of a
critic's real opinion'.
61. The case of Thomas v. Bradbury, Agnew
& Co Ltd [1906] 2 KB 627 concerned a book review in the magazine 'Punch'.
The defendants contended that the case should not have been left to the jury.
Evidence of malice, unless it appears on the face of the criticism, is irrelevant
to the question of fair comment. The Court of Appeal rejected this submission.
Collins MR noted that the contention involved the assertion that fair comment
must be measured by an abstract standard, as 'a thing quite apart from the
opinions and motives of its author and his personal relations towards the
writer of the thing criticised'.
62. In rejecting this submission, the
Master of the Rolls said that the commentator was liable if the comment was
malicious 'if, indeed, it can then be described as comment at all'. Comment
coloured by malice cannot, from the standpoint of the writer, be deemed fair.
He said, at pages 638 and 642 :
"... if he, the person sued, is proved to have allowed his view to
be distorted by malice, it is quite immaterial that somebody else might without
malice have written an equally damnatory criticism. ... It is, of course,
possible for a person to have a spite against another and yet to bring a
perfectly dispassionate judgment to bear upon his literary merits; but, given
the existence of malice, it must be for the jury to say whether it has warped
his judgment. Comment distorted by malice cannot ... be fair on the part of the
person who makes it".
63. He distinguished Merivale v. Carson, on
the ground that the comment there fell outside the objective limits, as I have
described them: 'proof of bona fide belief was therefore irrelevant'.
64. The same approach was adopted by the
Full Court in the New South Wales case of Gardiner v. Fairfax (1942) 42 SR
(NSW) 171, another book review case. The court equated malice with a
commentator's failure to express his 'real opinion'. Jordan CJ, at page 174,
stated :
"To establish malice, it is necessary to produce evidence that the
comment was designed to serve some other purpose than that of expressing the
commentator's real opinion, for example, that of satisfying a private grudge
against the person attacked."
65. In several later cases distinguished
judges emphasised the crucial importance of honesty, but these remarks were not
dealing directly with the question of motivation. Turner v. Metro-Goldwyn-Mayer
Pictures Ltd [1950] 1 AER 449 is an example of this. The case concerned a
letter which criticised a film critic's review of the week's films. Lord
Porter, at pages 461-463, contrasted the honest expression of the commentator's
'real view' and 'mere abuse or invective under the guise of criticism'. He
approved the trial judge's direction that if the defendants honestly held the
opinion expressed they were not abusing the occasion. In saying this, however,
he was rejecting the erroneous idea that reasonableness is required.
Irrationality, stupidity, or obstinacy do not constitute malice, although in an
extreme case they may be evidence of it: 'the defendant must honestly hold the
opinion he expresses, but no more is required of him.'
66. The position was similar in Slim v.
Daily Telegraph Ltd [1968] 2 QB 157, a decision of the Court of Appeal. The
action arose from the publication in a newspaper of a letter which commented
adversely on the conduct of a former town clerk. Lord Denning MR, at page 170,
said that the writer must honestly express his real view: 'so long as he does
this, he has nothing to fear'.
67. More in point are observations of
Diplock J in Silkin v. Beaverbrook Newspapers Ltd [1958] 1 WLR 743. This case
arose out of a newspaper columnist's trenchant criticisms of Lord Silkin, an active
politician and former government minister. In his direction to the jury Diplock
J noted that honesty is the 'cardinal test'. He said, at page 747 :
"It is because honesty is the cardinal test that very often in
cases of this kind you find it alleged that the person who made the comment was
actuated by personal spite or by some other ulterior motive so that the comment
he made did not express his honest opinion...". (Emphasis added)
Diplock J seems there to have regarded
intention to injure or other ulterior motive as antithetical to honesty, on the
footing that when a person is actuated by such a motive the view which he
expresses will not be his genuine view. It is to be noted, however, that malice
was not suggested in that case.
68. The Canadian authorities drawn to the
attention of the Court seem to take the matter no further forward. The issue
now being considered seems not to have been examined directly and in depth by
any court. The controversial decision of the Supreme Court in Cherneskey v.
Armadale Publishers Ltd (1979) 90 DLR 321 concerned the position of a newspaper
which publishes a letter. In passing, Dickson J repeated the familiar mantra:
"Malice is not limited to spite or ill will, although these are its
most obvious instances. Malice includes any indirect motive or ulterior
purpose, and will be established if the plaintiff can prove that the defendant
was not acting honestly when he published the comment."
69. In Vogel v. Canadian Broadcasting
Corporation [1982] 3 WWR 97, a decision of the British Columbia Supreme Court,
malice was in issue. The plaintiff was the Deputy Attorney General of British
Columbia. He complained about a television programme which suggested he had
abused his office by interfering with the conduct of criminal cases in order to
benefit friends. One of the grounds on which the defence of fair comment failed
was recklessness. In putting out the programme the defendants had no concern
for the truth or falsity of the allegations. Their real motive was to enhance
their own reputations by producing a sensational programme. Their concern was
to give allegations of scandal the appearance of truth to the extent necessary
to succeed in achieving their goal.
70. More difficult is the brief judgment of
the British Columbia Court of Appeal in Christie v. Westcom Radio Group Ltd
(1990) 75 DLR (4th) 546, concerning a defamatory radio broadcast. The court
rejected the proposition that honesty negates malice, in reliance on a passage
in the judgment of Greer LJ in Watt v. Longsdon [1930] 1 KB 130, 154-155, a
case of qualified privilege.
71. In these cases judges used phrases such
as bona fide belief, real view, and honest opinion. These expressions appear to
be different ways of saying the same thing. They are all descriptive of a state
of mind; the test is subjective. I doubt whether Collins MR intended to depart
from this subjective test when he spoke of a person's judgment being 'coloured'
or 'distorted' or 'warped' by malice: see Thomas v. Bradbury, Agnew & Co
Ltd [1906] 2 KB 627, 638, 642.
72. This point was highlighted by Blackburn
J, sitting in the Supreme Court of the Australian Capital Territory, in Renouf
v. Federal Capital Press of Australia Pty Ltd (1977) ACTR 35. The plaintiff was
a distinguished civil servant. He sued a newspaper in respect of a defamatory
article. Blackburn J noted that, unlike with the defence of qualified
privilege, malice in the context of fair comment cannot simply be characterised
as the abuse of a special legal relationship. Everything must turn on the state
of mind of the person making the comment. Proof that the comment was motivated
by a desire to embarrass or prejudice the plaintiff is not sufficient to
constitute malice. It must be shown to have distorted the judgment of the
defendant before it can avail the plaintiff.
73. What, then, of the case where intention
to embarrass or injure does warp the defendant's judgment but, nevertheless,
the defendant sincerely believes the opinion he expresses? Blackburn J answered
this question as follows, at page 54:
"If the plaintiff can show that the opinion represented by the
comment was affected by personal hostility, or some such irrelevant motive in
such a way that it does not represent a disinterested judgment upon the matter
which is the subject of the comment, then the reply of malice succeeds
notwithstanding that it is not proved that the comment was insincere - ie did
not represent the defendant's real opinion. It seems to me that unless this is
so, the law ignores the common human experience that personal animosity may
perfectly consort with sincerity to produce a comment which is harmful and
unfair".
74. Although I have some sympathy with
Blackburn J's difficulty, I am unable to agree with his conclusion. The root
cause of the difficulty here is that the defence of fair comment is bedevilled
by its name and by the continuing use of the anachronistic and confusing term
'malice'. In layman's terms, a view which is warped by a dominant intent to
injure does not rank as a fair comment. Blackburn J's solution is to curtail
the scope of the subjective test of genuineness, or 'sincerity', of belief.
Sincerity of belief will be efficacious only so long as it is disinterested. I
can see no sufficient warrant for thus cutting down the scope of the defence of
fair comment. Disinterestedness cannot always be expected in political life.
Its presence should not be a pre-requisite of the freedom to make comments on
matters of public interest.
Conclusion on the law
75. My conclusion on the authorities is
that, for the most part, the relevant judicial statements are consistent with
the views which I have expressed as a matter of principle. To summarise, in my
view a comment which falls within the objective limits of the defence of fair
comment can lose its immunity only by proof that the defendant did not
genuinely hold the view he expressed. Honesty of belief is the touchstone.
Actuation by spite, animosity, intent to injure, intent to arouse controversy
or other motivation, whatever it may be, even if it is the dominant or sole
motive, does not of itself defeat the defence. However, proof of such
motivation may be evidence, sometimes compelling evidence, from which lack of
genuine belief in the view expressed may be inferred. Proof of motivation may
also be relevant on other issues in the action, such as damages.
76. It is said that this view of the law
would have the undesirable consequence that malice would bear different
meanings in the defences of fair comment and qualified privilege, and that this
would inevitably cause difficulty for juries. I agree that if the term 'malice'
were used, there might be a risk of confusion. The answer lies in shunning that
word altogether. Juries can be instructed, regarding fair comment, that the
defence is defeated by proof that the defendant did not genuinely believe the
opinion he expressed. Regarding qualified privilege, juries can be directed
that the defence is defeated by proof that the defendant used the occasion for
some purpose other than that for which the occasion was privileged. This
direction can be elaborated in a manner appropriate to the facts and issues in
the case.
The judge's summing up and the decision of
the Court of Appeal
77. On this basis the trial judge's summing
up on malice was fundamentally and fatally flawed. She drew a distinction
between acceptable and unacceptable motives. Speaking 'as a critic or commentator'
was proper and acceptable; other motives, 'however noble', were not. She said :
"The law of malice can actually be stated quite simply ... a
defendant cannot abuse his position as a critic or a commentator ... by making
use of that position for some improper or indirect purpose or motive. ... The
question is, were the speakers' motives other than just speaking as critics or
commentators?"
78. Yuen J made the same distinction when
commenting on the allegations under heads (3) and (4) of the particulars of
malice. For instance, with regard to item (3)(a) (persuading Mr Au to pursue a
claim for compensation), she said :
"Were they [the individual defendants] pursuing their own political
agenda? Was that the dominant motive when they were saying all this? Was it
just fair comment on a matter of public interest? ... Did they step from just
being a critic or a commentator into using that position, into using that time
on the air, to pursue their own private agenda, however noble the cause may be?"
79. Her final comment was :
"Did all these motives add up to being the dominant motive such
that mere comment or criticism on a matter of public interest became no longer
the real purpose of this programme?"
80. In her desire to help the jury, Yuen J
handed some written directions to the jury during her summing up. The jury took
these with them when they retired to consider their verdict. These hand-outs
were to the same effect as the oral directions. She defined 'malicious motive'
as 'some motive other than that of a pure expression of critic/commentator's
real opinion'. Had the direction rested there, all might have been well. But
the hand-out later stated that 'the question is were the speakers' motives
other than just speaking as critics/commentators?' Thus, the defendants'
motives supplanted genuineness of belief as the governing factor.
81. In the Court of Appeal Chan CJHC gave
the only reasoned judgment. He rejected counsel's submission that the sole test
for malice in fair comment is whether the defendant has an honest belief in the
truth of what he says. Chan CJHC applied Lord Diplock's analysis in Horrocks v.
Lowe. It cannot be right, he said, that in the same branch of the law malice
has two different meanings. He relied on, among other matters, the statement in
Gatley on Libel and Slander set out above. He said :
"Honesty or honest belief is clearly a necessary consideration. But
the matter does not end there. In some cases, the presence of honesty or honest
belief is not sufficient to absolve the defendant from liability if it can be
shown that he makes his comment about the plaintiff for some other motive and
that such motive is the dominant motive behind what he says. ... It is open to
the plaintiff to prove that although the defendant may honestly believe in the
truth of what he says, his desire is to use his comment not for the purpose of
expressing an opinion but to further his own purpose."
The Chief Judge concluded that the summing
up was in line with the rationale behind the defence and in accordance with the
law as stated in Horrocks v. Lowe.
82. My reasons for respectfully differing
from Chan CJHC appear from what I have stated above. The motives particularised
under heads (3) and (4) would not in law defeat the defence of fair comment.
Evidence of the existence of these motives or any of them would be relevant to
the issues raised by heads (1) and (2), and the question of damages.
83. In my view this appeal succeeds. The
jury's verdicts regarding Mr Cheng and Mr Lam must be quashed, and the orders
made against them by Yuen J and the Court of Appeal set aside. There will be a
direction for a new trial. The new trial will have to extend to all the issues
in the action, as against the individual defendants. Should the jury at the
re-trial reach the stage of assessing damages they will need to know which of
the comments made in the programme were defamatory and which, if any, were
true. That does not appear from the verdicts at the trial before Yuen J, nor
can it be inferred.
84. Since preparing the above I have had
the advantage of reading a draft of the judgment of the Chief Justice. I agree
with what he says regarding freedom of speech and the other matters he
mentions.
Chief Justice Li :
85. The Court unanimously allows the appeal
and makes the following orders: (1) The jury's verdicts regarding Mr Cheng and
Mr Lam are quashed; (2) The orders made against them by Yuen J and the Court of
Appeal are set aside; (3) A new trial extending to all issues is ordered as
against Mr Cheng and Mr Lam. As to costs, the Court unanimously makes an order
nisi in the terms set out in my judgment.
(Andrew Li) (Kemal Bokhary) (R A V
Ribeiro)
Chief Justice Permanent Judge Permanent
Judge
(Sir Denys Roberts) (Lord Nicholls of Birkenhead)
Non-Permanent Judge Non-Permanent Judge
Representation:
Mr Martin Lee SC and Mr Erik Shum
(instructed by Messrs Ho, Tse, Wai & Partners) for the appellants
Mr Gerard McCoy SC and Mr Paul Shieh
(instructed by Messrs Paul W. Tse) for the respondent
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