Background 1. In late November 2011, rumours were circulating among pupils at a school in Hong Kong and their parents to the effect that the 1st and 2nd Appellants were suspected of having cheated in school tests, but had got away with it because their father, the 3rd Appellant, was a member of the board of governors. In the light of this, the Respondents, who are parents of a pupil attending a school in Hong Kong, published five emails and a meeting summary to a number of parents of children at the school as well as the school management. The Appellants argued that the publications were defamatory, and that the defence of qualified privilege could not be relied on by the Respondents since it was defeated by proof of malice. 2. After trial before the jury, the jury returned the verdict that whilst all six sets of offending words in the publications were defamatory of the Appellants, only four out of the six were published by the Respondents with malice. The trial judge then found that the publication of the remaining two emails was protected by qualified privilege. 3. On appeal, the Court of Appeal held that the judge had misdirected the jury on the issue of malice, and that the jury verdicts on that issue must be set aside. In deciding between ordering a retrial and substituting an alternative verdict, the Court of Appeal concluded that there was no evidence on which a properly directed jury could have made a finding of malice on the part of the Respondents. Judgment was accordingly entered for the Respondents. 4. The main two issues before this Court in this appeal were concerned with the proper legal approach to the issue of malice, as well as whether a retrial should have been ordered by the Court of Appeal. The Court’s decision on the law 5. “Malice” is an unfortunate expression which it is preferable to avoid before juries as it can lead to confusion. To determine whether a communication was published maliciously for the purpose of rebutting a defence of qualified privilege, two questions must be decided. First, as a question of law to be decided by the judge, was the occasion privileged, and if so, for what purpose? Second, as a question of fact to be decided by the jury, was that the defendant’s purpose when he published the communication in question? The first question must be decided before the second. 6. Knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred. The ultimate question remains whether the defendant used the occasion for a purpose other than that for which the privilege was accorded. Thus, a particular conclusion on malice does not automatically follow in every case from the jury’s view of the defendant’s knowledge or belief as to the truth or falsity of what is communicated. 7. However, a defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to its truth or falsity in the sense of not “considering or caring whether it be true or not”, will generally be conclusive evidence that he did not make the communication for the same purpose as that for which the privilege was accorded. The Court’s decision on the facts 8. There were substantial defects in the jury directions. First, since the judge decided the issue of qualified privilege after the jury had delivered their verdicts on malice, it was in principle impossible for the judge to explain to the jury, before they returned their verdicts on the issue of malice, the purposes for which the privilege was accorded. Secondly, the judge erred in his direction by defining malice as the use of the occasion for an improper purpose or an absence of honest belief in the truth of what was published, when only the former is the definition of malice. Thirdly, the jury received no direction as to the weight of the burden of proof which the Appellants had to discharge. It follows that it was appropriate for the jury verdicts to have been set aside. 9. In deciding that there should not be a retrial, the Court of Appeal erred when it proceeded on the basis that reckless indifference as to the truth or falsity of the publication could not establish malice unless it amounted to willful blindness or was accompanied by another state of mind such as gross, unreasoning prejudice. 10. The evidence which the Court of Appeal examined before reaching the conclusion that there could not be a finding of malice included evidence which could be regarded as going the other way. There were matters on which both parties could rely in support of their respective positions. No assumption can thus be made as to the correctness of the Court of Appeal’s conclusion on the facts. 11. A retrial should therefore be ordered on the issue of malice. The appeal is allowed and the orders made by the Court of Appeal are set aside.