## 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.
