Who will pay ? Bernard Luk(陸鴻基) or Arthur Li(李國章) ?

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I have never paid much attention to this soap opera as it just reveals another clumsy and stupid attempt of our government officials at holding reins over their subordinates at the tertiary institutions who are becoming more rebellious in response to their oppressive control. Even after the sensational Robert Chung (鍾庭耀) Pollster Incident in 2000, our government officials are still too stubborn to grasp the art of officialdom and learn when to keep their mouths shut and put their hands off from some “delicate” issues. What has aroused my interest, is the letter sent by Arthur Kwok Cheung Li(李國章)’s legal representative Simmons & Simmons(西盟斯律師行)dated 16th February 2007 to Bernard Hung Kay Luk (陸鴻基) accusing him of defamation. Strangely enough, the said letter is not followed by any writ of summons from High Court (only High Court has jurisdiction to try defamation case). I believe his lawyers are anxiously looking forward to the outcome and ruling of the Inquiry chaired by Mr Justice Woo, which would by all means affect any future litigation of their client on this matter.

In the said letter, there cited a commentary or article written by Bernard Luk saying “例如幾年來每每有教院同仁在報章發表批評『教改』或教育政策和施政的文章,隨後即有高官打電話來要求莫禮時『炒』這位那位同事” (For example, throughout all these years, no sooner were some articles published by our colleagues at the Institute of Education criticizing the educational reform or educational policies and its execution, than certain high-ranking government officials would call up Morris requesting him to ‘fire’ this or that colleague). This statement is challenged as being defamatory in context though it does not mention any names.

Under the law on defamation, in order to bring action on defamation, the Plaintiff must prove (1) a defamatory statement, (2) made by the defendant or his agent directed to the Plaintiff, and (3) is published. And while there are two forms of defamation namely libel (defamation in permanent i.e. in writing) and slander (defamation in transcient form i.e. by speech), any verbal statement made through the mass media i.e. radio broadcast will become libel despite its impermanent form. And according to my limited knowledge, the main difference between libel and slander is that the former is actionable per se, which means the Plaintiff does not have to prove any damage before awarding damages whereas the latter requires the Plaintiff to show certain degree of loss and damage suffered. By looking at the aforesaid statement alone, although it did not indicate Arthur Li being that high-ranking official who made that outrageous request, yet if any reasonable reader of that statement could infer from its content that Arthur Li is that particular official by virtue of his or her knowledge and understanding in connection to the whole matter, then this statement becomes an imputation known as Innuendo per Tolley v J S Fry & Son Ltd [1931] AC 333 and is actionable. Moreover according to Clerk & Lindsell on Tort (17th ed) [21-32], a person who pursues any office, profession, calling, trade or business may have an action if he be slandered in respect of it. So any defamatory statement in connection with Arthur Li’s office as the Secretary for Education even though his name is never mentioned at all, it is actionable per se without the request to prove loss and damage.

But when Bernard Luk pointed out in the said letter that “遲至拙文發表之後三天才向記者澄清這位「高官」不是李局長,此舉不足以清除因為傳媒先前誤會而對李局長清譽造成的損害” (it was not until 3 days after the publication of Bernard Luk's article that he came to clarify with the reporters that Director Li was not that ‘high-ranking’ official, this move is not sufficient to vindicate the damage caused as a result of the press’ misunderstanding on Director Li),I was quite puzzled because even after flipping through the content in Clerk & Lindsell on Tort on defamation, I found not a single paragraph or sentence saying inaction alone i.e. a failure to make timely clarification, is an aggravating factor to defamation. I really wish those learned lawyers at Simmons & Simmons can point out to me from which case authority or text they found support to their allegation. From the literal meaning of this statement, Bernard Luk’s liability, if any, is mitigated to a large extent since he bothered to clarify the truth with the press, who had misinterpreted the true meaning of his statement. He did not turn a blind eye to the stigma that had tainted Arthur Li’s reputation. Though motive or intention is immaterial in an action of defamation, such attempt of clarification would and should definitely be taken in account by the future trial judge in his ruling and the assessment of damages. With greatest respect, I do not quite agree with the lawyers of Simmons & Simmons.

When confronted with a cause of action on defamation. The simplest and most straightforward defence available is that of Justification. Any such ridiculous requests made by officials in response to critics attacking them, would never take me by surprise and if what Bernard Luk mentioned in his article is true or if a finding to the same effect is later ruled by the Inquiry, the action on defamation could hardly be sustained.

Another defence open to Bernard Luk if an action is really brought, is Fair Comment. Certain criteria are set out by the law in raising the defence of fair comment, (1) it must be a statement of comment not a statement of fact, (2) concerns public interest, (3) the motive of making such statement must be made without malice, and (4) the comment made must reasonably be derived from the surrounding fact or text. (Note: the fact from which the comment is based on must be true) Requirement (2) could easily be satisfied since everyone would agree education reform or academic independence, concerns public interest. Requirement (3) has now become a very low threshold ever since the Hong Kong Court of Final Appeal deviated from the common law principle and ruled in Paul Tse W. C v Albert Cheung [2000] HKC that so long as one of the many motives is honest and without malice, the comment is still a fair one despite the other motives of the statement-maker are malicious. Requirements (1) and (4) are closely connected since if the alleged statement is one of fact, we do not have to consider (4).

On the face of the statement quoted in paragraph 2, it appears to be a statement of fact to me since it is more than just an inference or remark. In Telnikoff v Mateusevitch [1992] 2 A.C.343, the English House of Lords ruled the court should consider the statement itself without the help of the subject matter to which is alludes. So in deciding whether Bernard Luk’s statement is a comment, we do not have to examine other parts of his article. If we divide his statement into two parts, the first half is harmless since it does not relate to Arthur Li or any officials, but the second half “隨後即有高官打電話來要求莫禮時『炒』這位那位同事”( certain high-ranking government official(s) would call up Morris afterwards requesting him to ‘fire’ this or that colleague) impliedly refers to a particular group of people or person. Owing to the ambiguity of Chinese language, 有高官(certain high-ranking government official{s}) could either mean a group of high-ranking officials or just one single official holding a high post. Normally if the defamatory statement is directed to a class of persons, then no individual of this group could bring action. However there will be an exception if that particular class is a limited one, for example owners of a building or owners of a partnership company. However literally speaking, 有高官 does not confine just to officials from the Bureau of Education, it could be officials from other departments as well. Moreover, the adjective 高 is so vague that it does not lead us to only a dozen of officials, it could be 3 dozens or over a hundred.

At the closing of the said letter, it says “It is, of course, a matter for you whether you choose to repeat such allegations in the lead up to the Inquiry, although you should note that all of our client's rights are reserved should you choose to do so.」(「在調查委員會聆訊之前,你當然可以選擇是否再重覆這些指控,但請你注意,如果你這樣做,我們的委託人會保留一切追究的權利。」)” Here the lawyers of Simmons & Simmons seem to be manipulating a threat on Bernard Luk not to say something before the Inquiry. While repetition of a defamatory statement is an aggravating factor to liability, some curious readers may ask whether repeating the allegations in the Inquiry is also an aggravating factor. The answer is no. For the defence of Qualified Privilege is open to Bernard Luk if it is repeated in an Inquiry called by the Chief Executive and chaired by a Court of Appeal judge. According to Stuart v Bell [1891] 2 QB 341, qualified privilege could be defined as a disclosure “fairly made by a person in the discharge of some public or private duty whether legal or moral.” If Bernard Luk is called as witness in the said Inquiry, he is duty-bound to tell the truth though his evidence is not sworn as that in an open court. He is therefore obliged to repeat that alleged defamatory statement if he is asked by Mr Justice Woo for instance. So long as he repeats the said statement with a right and honest motives, its repetition during the Inquiry would never be actionable.

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