PI/30/2.
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plaintiff, who had not succeeded in his course at the Police Training School and had been reverted from his temporary rank of. Inspector of Police, had applied to see the Cobuial Secretary to. air.his complaint against that reversion. The plaintiff does not core cde that the defendant was under any duty to do so (that is, to publish this report) and would maintain therefore that this was not an occasion of even qualified "privilege. He sets out in his statement of claim the passages in this report which he holds to be defamatory of him. They consist principally of a résumé given by the defendant of the circumstances allegedly revaled by the inquiry into the instance of suspected cheating at the Police Training School in November, 1968. This report, however, covers the entire career of the plaintiff in addition to the matters just now referred to and is, in effect, a critical evaluation of his career culminating in a number of paragraphs headed 'Conclusion', three of which are in effect a sumary of the reasons advanced by the defendant for the concluding opinion that the plaintiff did not possess
the qualities which would justify his promotion as a comissioned officer in the Royal Hong Kong Police Force.. The plaintiff does not alege any intuendo in relation to these passages. He says that, read as they stand, they show him in a very adverse light as an undesirable and dishone st person, one still suspected of having cheated at an examination, a person unstable and malicious in character. Although Mr. Donnelly has laboured to show that much of what is contained in these paragraphs is not on the face of it defamatory at all and while I would agree that taken sentence by sentence much might be pared away on that ground, since some of the facts stated have been admitted and some have been proved in evidence,
The real I do not think it is necessary to engage in that oxercise. substance of the plaintiff's complaint is that this very adverse estimate of him w gratuitously offered in circumstances which did not require a report of any kind from the defendant to the Colonial Secretary, and, fuchermore, that though presented as an estimate of his history and abilities, the passages complained of presented a wilfully distorted picture of hir and also repeated an accusation which was never sustained and was, from the outset, to the knowledge of the defendant, in substance false, even though some of the facts contained in the report may have been correctly stated. In other words, he claims that this report, like the earlier one which it echoes, was published by the dendant with malice in fact.
It way be said at once that the issue concerning the occasion of the publication of this second alleged libel must be resolved in the defendant's favour. The plaintiff would seem to raise two matters in relation to it. Firstly, he says that the Commissioner of Police and the Colonial Secretary are not bound by any reciprocal duties to give and to receive such a report. This is clearly wrong and the simple answer to that proposition is to be found in Establishment Regulation E.R. 472. Mr. Donnelly concedes that that regulation does not have the force cf law. That is so, but it is a rule of order binding upon public servants generally, a breach of which could be made the subject of disciplinary action, and, as such, it imposes a duty in the nature of a legal duty certainly something stronger than a social or moral duty. As to its being unsolicited, the passage quoted by Mr. Donnelly from paragraph 477 of the 7th Edition of Gatley makes it clear the privilege is not lost me.ely because the communication has been gratuitous, but, in any event, tiis communication clearly was not gratuitous. The plaintiff's discontents were well within the knowledge of the Commissioner, at the time the
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