Chang Wa Shan v Esther Chan Pui Kwan
Court of Appeal
Civil Appeal No. 240 of 2015
Yuen, Kwan and Macrae JJA
8 September 2017

Defamation – slander – in answer to question put to her by lawyer in course of giving evidence at high-profile trial, defendant mentioned plaintiff’s name, which was then republished in media, causing plaintiff to be associated with party to trial in negative sense – whether republication of plaintiff’s name made on occasion covered by absolute privilege (in court proceedings) so that defendant not liable in defamation – Defamation Ordinance (Cap.21) s. 23

Leung was a witness called by Chinachem Charitable Foundation Ltd (“Chinachem”) in the high-profile probate proceedings in which Tony Chan unsuccessfully sought to establish that he was the sole beneficiary of the late Nina Wang’s vast estate under a will (ultimately found to be a forgery) bearing a date later than the will under which Chinachem was the sole beneficiary of that estate. D in the present proceedings was a former assistant and lady friend of Leung. Through D, there came into the hands of Mr. Chan’s legal advisers a document (the “Document”) which it was thought could be used to discredit Leung’s evidence. In a telephone conversation with the speaker function turned on, D told Mr. Chan’s counsel and solicitor that the Document had been provided by P in the present proceedings. That, as D knew, was untrue. When Mr. Chan’s counsel sought to use the Document in court, he was asked by the Trial Judge for the provenance of the Document. Mr. Chan’s counsel answered that it had been provided by P. That answer was widely reported in the media the next day. The media reported that P had disclosed secret information to Mr. Chan’s camp and provided them with an investment proposal which would appear to have the effect of discrediting Leung’s evidence. P sued D in slander and malicious falsehood. He sued only in respect of the publication on the telephone to Mr. Chan’s counsel and solicitor (the “Publication”) since the reports in the media (the “Republications”), being fair and accurate reports of what Mr. Chan’s counsel had said in open court, were protected by absolute privilege. But he sought to recover in respect of the Publication damages consequential upon the Republications on the basis that a reasonable person in D’s position would have foreseen that such increased damage would ensue as a result of the Publication. At first instance, the Recorder dismissed P’s claim (see [2015] 5 HKLRD 389). The Recorder accepted D’s argument that the Publication was protected by absolute privilege because the only purpose of the telephone conversation in which the Publication was made was to obtain documents and information for use in the trial of the probate proceedings. Further, the Recorder held that P had failed to prove that D’s utterance was defamatory. As for malicious falsehood, D’s utterance, though false, was not likely to cause pecuniary damage to P in respect of his office, profession, calling, trade or business. By reason of the absolute privilege attaching to the Republications, D could not be held responsible for their consequences. P appealed.

Held, allowing the appeal unanimously in relation to malicious falsehood and by a majority (Kwan and Macrae JJA, Yuen JA dissenting) by awarding P general damages of HK$30,000 for slander and malicious falsehood, that:

  • The Publication was not on an occasion of absolute privilege.
  • D’s statement bore a defamatory meaning.
  • P’s claim in malicious falsehood succeeded. It was more likely than not that people would be put off from doing business with him and that pecuniary damage to him would result. He did not have to allege or prove special damage.
  • Damages consequential upon the Republications were not recoverable.
  • P should be awarded general damages of HK$30,000 for slander and malicious falsehood.

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