The Court of Final Appeal has ordered a retrial after ruling against Financial Secretary Paul Chan and his wife, after the pair were accused of defaming two schoolchildren and their father over six years ago.
Chan and his wife Frieda Hui published five emails and a summary document in December 2011 in which they accused two schoolchildren of getting away with cheating in a test because their father Carl Lu was a school board member at the Chinese International School. The Chan family had heard rumours from their daughter, who was in the same class.
The Lu family won HK$230,000 in damages from the couple in 2015. A Court of First Instance jury found all six communications were defamatory and that four of the six had been published maliciously.
The Court of Appeal ruled that Chan won the case as the trial judge had misdirected the jury on the issue of malice, and that the four communications in question had been published on occasions of qualified privilege. Qualified privilege can be argued as a defence if someone acted out of a legal or moral duty.
The Court ruled that there was no evidence on which a properly directed jury could make a finding of malice.
The current appeal lodged by the Lu family was raised over two questions. It considered what legal approach there was to the issue of malice in order to defeat a defence of qualified privilege. And it questioned whether a retrial should have been ordered, if the Court of Appeal correctly held that the Court of First Instance’s summing up made an error.
The five judges of the highest court concluded that a retrial should be held by the Court of First Instance on the issue of malice.
In a statement, Paul Chan and Frieda Hui said they will continue defending the case, hoping justice will prevail.