Cheng v Tse (2003) 3 HKCFA 339

Facts

  • The case concerned a defamation action in which the defendant raised the defense of fair comment, also known as honest opinion.
  • The main dispute focused on whether the defendant’s statements were properly characterized as opinion rather than fact.
  • The court analyzed whether the defendant’s comments were based on supporting facts that were either true or privileged.
  • The context in which the statements were made—including the tone, medium, and presentation—was examined to determine if they were recognizable as opinions.
  • The court also assessed whether there was any evidence of malice on the part of the defendant.
  • The case took place in Hong Kong, with the decision delivered by the Hong Kong Court of Final Appeal.

Issues

  1. Whether the defendant’s statements constituted fair comment or honest opinion as a defense to defamation.
  2. Whether the comments were clearly recognizable as opinion rather than assertions of fact.
  3. Whether the factual basis for the comments was true or privileged.
  4. Whether the statements were made without malice.
  5. Whether the defense of fair comment adequately protects freedom of expression in matters of public interest.

Decision

  • The court reaffirmed that the defense of fair comment requires the comment to be based on facts that are true or privileged.
  • The opinion expressed must be one that a reasonable person could honestly hold, even if exaggerated or prejudiced.
  • For the defense to succeed, the comment must be recognizable as opinion and not as fact.
  • The context, tone, medium, and overall presentation of the statement are relevant in identifying comments as opinions.
  • The presence of malice, indicated by a primary intent to harm, defeats the fair comment defense.
  • The burden to prove malice lies with the plaintiff.
  • Comments made on matters of public interest are more likely to fall under the protection of fair comment, provided all requirements are met.

Legal Principles

  • The defense of fair comment allows individuals to express opinions on matters of public interest, provided the comments are based on true or privileged facts, are recognizable as opinions, and are made without malice.
  • The distinction between fact and opinion is essential; statements of fact are verifiable, while opinions are subjective.
  • The recognition of a statement as opinion depends on context, including the medium, tone, and presentation.
  • Malice negates the fair comment defense; absence of an improper motive is a requirement.
  • The burden of proving malice rests on the plaintiff.
  • The ruling aligns with similar common law principles in the United Kingdom and Canada, but emphasizes contextual considerations relevant to Hong Kong.

Conclusion

The court in Cheng v Tse (2003) 3 HKCFA 339 clarified the requirements for the defense of fair comment in defamation, holding that such comments must be recognizable as opinions, based on true or privileged facts, and expressed without malice, thereby balancing protections for freedom of expression and individual reputations within the context of Hong Kong law.

The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Job Test Prep
One-time Fee
$90-350

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal