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To: sangkancil@malaysia.net
Date: Fri, 17 Oct 1997 09:03:54
Subject: [sangkancil] SGNEW: Report by International Commission of Jurists (fwd)
From: pillai@mgg.pc.my (M.G.G. Pillai)
Reply-to: pillai@mgg.pc.my (M.G.G. Pillai)
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From: forum@sintercom.org
Date: 16 Oct 97
Originally To: sintercom-newsletter@list.sintercom.org
--- start ---
Report To the International Commission Of Jurists Geneva, Switzerland
On a Defamation Trial in the High Court Of Singapore
Goh Chok Tong Vs J. B Jeyaretnam
August 18-22, 1997
1. BACKGROUND:
1.1 This was the first of eleven defamation actions commenced in January
1997 against Mr. Jeyaretnam, Secretary-General of the Workers' Party of
Singapore, by the nation's Prime Minister (Mr.Goh), its Senior Minister (Mr.
Lee Kwan Yew), and nine members of the Peoples' Action Party, including the
two Deputy Prime Ministers and two Cabinet Ministers.
1.2 Because each of the eleven suits was brought on the basis of certain
words spoken by Mr Jeyaretnam at an election rally for the Singapore General
Election of January 1997, it was (during the course of the trial) agreed by
all remaining plaintiffs that the trial judge's ruling on whether or not the
words spoken were defamatory would be binding in all cases.
The words were:
"Mr.Tang Liang Hong has just placed before me two reports he has made
against, you know, Mr. Goh Chok Tong and his people".
1.3 The plaintiffs in the following ten cases agreed that if Mr. Goh
succeeded on the issue of liability, each of this cases would involve only
the court's assessment of damages.
1.4 Singapore's leadership has a longstanding reputation for using
defamation actions as a mechanism for removing opposition members from the
Singapore parliament: far from tolerating critical remarks (not even those
spoken or written in the heat of an election campaign), Messrs Goh and Lee
have been swift to commence actions, to succeed with them, and to obtain
such unconscionably high damages (and costs) as to bankrupt their opponents.
1.5 The Registrar of the High Court of Singapore provided this observer with
a printout of all defamation actions heard to completion in the jurisdiction
since 1959 (when the Peoples' Action Party first came to power). It shows
the following:
Actions by PAP politicians:
Year Litigants Damages awarded
1979 Lee Kwan Yew v Jeyaretnam S$130,000
1988 Lee Kwan Yew v Seow Khee Leng S$250,000
1989 Lee Kwan Yew v Jeyaretnam S$230,000
1990 Lee Kwan Yew his son, and Goh Chok
Tong v International Herald Tribune S$650,000
1994 Lee Kwan Yew v International Herald
Tribune S$400,000
1996 Lee Kwan Yew & Son v Tang Liang
Hong S$1,050,000
Actions by Non- PAP politicians:
Year Litigants Damages awarded
1996 Company (imputation of incompetence) S$20,000
1995 Importer (imputation of bogus goods) S$100,000
1994 Bank (imputation of negligence) S$50,000
1992 Architect (imputation of fraud) S$60,000
1992 Architect (imputation of unethical
conduct) damages S$45,000
1981 Lawyer (imputation of dishonesty)
damages S$25,000
1969 Lawyer (imputation of insolvency) S$7,350
Mr Jeyaretnam sued Goh Chok Tong in 1987 (Imputation of trickery; defence
of fair comment) and failed; the Workers' Party sued two PAP members, one
the Attorney General, in 1974 (imputation of accepting of accepting foreign
funds; and subversion; defence of privilege), but failed.
1.6 Earlier in 1997, Goh Chok Tong and the ten plaintiffs in the present
actions has sued Mr Tang Liang Hong another Workers' Party candidate, who
had alleged they conspired to defame him. Mr. Tang fled the jurisdiction,
stating that he feared for his life. In his absence, all eleven suits were
heard and the plaintiffs won damages totalling S$5, 825,000:
Goh Chok Tong awarded damages of S$600,000, S$450,000 and S$350,000
(Total:S$1.4 million)
Lee Kwan Yew awarded damages of S$550,000, S$400,000 and S$300,000
(Total:S$1.25 million)
Lee Hsien Loong (son) awarded damages of S$350,000
Tony Tan Keng Yam awarded damages of S$350,000
Lee Yok Suan (son) awarded damages of S$300,000
Six other PAP members awarded damages of S$1,350,000 and $1,075,000.
(NB: An appeal against these judgements was heard in Singapore on 23 and 24
September 1997, and the Appeal Court's decision was reserved.)
1.7 The abovementioned cases, it should be remembered, are only those that
went to verdict. Many others have been brought by PAP members (including
present plaintiffs) and settled out of the court. Few details of those are
available.
1.8 One example of a settled case was reported to this observer by another
defendant (an Opposition election candidate). In an election speech, he
spoke words to the effect of: "Membership of the PAP is a wise career move"
He was threaten with an action, and choose to apologise and pay $200,000,
rather than face what he regarded as an inevitable verdict, and a crippling
order for costs. The defendant, a retired man, had to sell his home to pay
the S$200,000.
1.9 Mr Jeyaretnam had, in late June, made an application to the High Court
for the ad hoc admission of an English QC (Mr George Carman) to represent
him - on the grounds that he could get no expert local advocate to accept a
case against the PAP leadership, and his application succeeded - although
solely on the grounds that the defamation case was sufficiently difficult
and complex to warrant a QC. Mr Goh, who opposed the application, then
himself applied for the admission of an English QC (Mr Thomas Shields), and
his unopposed request was granted.
2. THE DEFENDANT:
2.1 The personal circumstances of Mr Jeyaretnam are recited in the
observers's report to the ICJ in respect of the 27 June 1997 application for
ad hoc admission of Carman QC for the present hearing.
3. THE PLAINTIFFS:
3.1 The plaintiff is the Prime Minister of Singapore.
3.2 The plaintiffs in the associated actions are:
Lee Kwan Yew, former Prime Minister and now the Government's Senior
Minister; his sons Lee Hsien Loong (BG Lee), Deputy Prime Minister, and Lee
Yok Suan, Minister for Trade and Industry, Tony Tan Keng Yam, Deputy Prime
Minister; Teo Chee Hearn (Rear Admiral Teo), Minister for Education; Ch'ng
Jit Koon, Senior Minister of State; Ow Chin Hock, (Dr Ow), Minister of
Foreign Affairs; Chin Harn Tong, PAP Member of Parliament; Ker Sin Tze (Dr
Ker), PAP Member of Parliament; and Seng Han Tong, PAP Member of Parliament.
4. THE TRIBUNAL:
4.1 The trial was presided over by Justice S Rajendran, without a jury.
4.2 It was reported to this observer that Justice Chao Hick Tin (who heard
the plaintiffs' case against Tang Liang Hong) had been listed to hear the
present matters, but - after he granted Mr Jeyaretnam's contested
application to admit the QC - was replaced, and informed of the Government's
displeasure. The High Court Registrar, however, has said that the trial
judge was assigned to the cases, routinely, by himself and the Chief Justice.
5. THE ADVOCATES:
5.1 Shields QC appeared with Singapore juniors for Mr Goh.
5.2 Carman QC appeared with a Singapore junior for the defendant.
5.3 Throughout the hearing, counsel for the remaining ten plaintiffs sat at
the bar tables. Despite being asked at the beginning of the trial to agree
that the judge's decision on liability would be binding in each case
(whereupon the lawyers could have withdrawn), the other plaintiffs' counsel
remained for the duration of the hearing and only informed the Court that
they agreed to be bound by the ruling on liability on the final day of the
trial. That would mean that if Goh won a verdict, their cases would involved
assessment of damages only.
Their remaining in court may have been a deliberate tactic, calculated to
hugely increase the costs the defendant would have to pay if all plaintiffs
obtained a verdict. There was certainly no forensic reason for multiple
counsel to remain for the entire five days.
6. OBSERVATION OF THE TRIAL:
6.1 Before the trial, this observer sent his ordre de mission to Justice
Rajendran in his chambers. The judge sent out word that he would not see the
observer until the hearing was over. It was, however, noted that the judge
received a visit in his chambers during the hearing from Justice J Clifford
Wallace of the United States Court of Appeals, Ninth Circuit, who was
visiting Singapore privately, and who then spent a day observing the trial.
6.2 The ICJ observers were given a table at the side of the courtroom, High
Court officials were unfailingly accommodating and courteous to the observers.
6.3 At all times, the courtroom was filled to capacity with spectators, and
each day many were turned away. The spectators included interested members
of the public, law students, lawyers, and a very large contingent of
international and local journalists.
6.4 The entire trial was observed, except for the first part of the opening
address by the plaintiff's counsel.
7. MEDIA INTEREST IN THE TRIAL:
7.1 Media coverage of the trial, both in Singapore and abroad, was
extensive. The (Singapore) Straits Time's coverage was remarkable for its
pro-Government bias:
On 19 August, the morning after the trial started, the Straits Times
reported on its front page that "Lawyers acting for Mr JB Jeyaretnam
initiated talks for an out-of-court settlement ......said (the) press
secretary to Prime Minister Goh Chok Tong last night".
It is hard to imagine any jurisdiction in which such a report would
not amount to a contempt of court. Further, there is reason to believe the
allegation was untrue.
On August 20, purporting to cover Carmen QC's cross examination of Mr
Goh, the newspaper elected as its front-page headline "Jeya's action was
"like throwing a Molotov cocktail", a self- serving and entirely hyperbolic
claim made in evidence by the plaintiff, but the newspaper counsel: that
Goh's belief in democracy and a free press was limited to "responsible"
press; that his government did not censor offending publications, but merely
"curtailed their circulations", that it would be "very wicked....cowardly
and oppressive" to use the courts to silence political oppositions - but
that Goh had commenced and settled numerous libel actions, and had banned
the Asian Wall Street Journal.
By contrast with the domestic coverage, the International Herald
Tribune carried a Reuters' report which it headlined "Goh's Motives
Questioned in Singapore Defamation Case", and reported the Prime Minister's
denial of the question "You and your ten political colleagues saw this as a
method of causing financial oppression on this 71-year-old man because you
wanted him out of Parliament, and thought the court would provide a
convenient method."
Also on 20 August, the Straits Time's report was that "Yesterday's
cross examination drew intermittent laughter from the public" failing to
explain that the laughter was at the expense of Mr Goh. Elsewhere, the
newspaper purported to report that in asking a question about Goh's
"demeaning the high office of Prime Minister". Carman QC "took
issue....rising in pitch", which was untrue, and went on "But Mr Goh did not
rise to the bait".
On 21 August, covering shields Q C's cross examination of Mr Jeyaretnam
(in which no concessions were won from the witness), the paper's from page
story was headlined "Jeya pleads ignorance" (of the contents of the Tang
police reports about which he spoke) but that Shields QC "argued however
that he must have known the contents". Much of the coverage was spent on the
questions asked by the plaintiff's counsel, despite the fact that the
answers did not favour his case. One example: "But the QC rejected his
explanation..."
8. THE TRIAL:
8.1 The plaintiff's case was that the words spoken by the defendant (see
1.3, above) carried the imputation, whether alone or with the aid of
extrinsic facts taking in the history and nature of Mr Tang's complaints
against the several plaintiffs, that Goh was guilty of the crimes of
criminal defamation and conspiracy.
8.2 The defence case was that the law of defamation will not permit an
inference of guilt from the mere fact that a complaint has been made to the
police.
8.3 Shields QC opened his case at substantial length on 18 August. On
August 19, he called his only witness (the plaintiff), whose evidence was
given in affidavit form and who was then cross examined.
8.4 On 20 August the defendant was called in his own cases. Again, he was
the only witness. He wass cross examined.
8.5 Both counsel addressed on 21 August, and Shields QC completed his
address on 22 August. On damages, Shields QC quantified the award he sought
at S$200,000 (S$50,000 for aggravated damages). The aggravation upon which
he relied was substantially that Carman Q C's conduct of defence (his cross
examination of the Prime Minister) was "offensive". The defendant's case was
that the words were not defamatory (least of all in the terms of the
imputation of guilt, as pleaded) and that - because Mr Goh was awarded
S$600,000 for precisely the same imputation when it was published by Mr Tang
- damages, if there were any, should be no more than one dollar.
8.6 Justice Rajendran then adjourned, reserving his decision for "some weeks".
9. CONDUCT OF THE TRIAL:
9.1 Justice Rajendran conducted a courteous and efficient trial. Counsel
was given time, if they needed it, to prepare their submissions. Both
parties, when in the witness box, were heard without judicial interruption.
9.2 It was somewhat startling to see the court attendant serve the Prime
Minister, when he was in the witness box under cross examination, with a pot
of tea, milk and sugar, on a tray. No such refreshment was provided to Mr
Jeyaretnam, but the event probably had more to do with the court attendant's
priorities thay anything sinister.
9.3 Justice Rajendran's interventions were so few as to be remarkable. He
sat through many hours of counsel's submissions without asking any questions
or making any comments.
9.4 There were, however, two interventions by the judge which raised some
concerns with his observer. The first was when Carman QC was cross examining
the Prime Minister, and raised the subject of political repression in
Singapore. He used the words "climate of fear". Rajendran J then said words
to the effect of "I will not allow questions on that subject", to which
Carman QC responded:
"Am I not allowed to put (my client's) case? Is that what you want me
to do in Singapore?"
Almost immediately, Shields QC intervened to tell Rajendran J that he did
not object to questions on the subject that the judge had said he would not
permit: but that the question ought to be rephrased because of its form.
Rajendran J then permitted the cross examination to continue.
The second intervention by the judge was at the very end of the trial.
Rajendran J had, by then, listened to some nine hours of addresses on the
law of defamation as a it applied to the present case. As Shields QC was
completing his submission, the judge asked several questions that betrayed
an almost total ignorance of the technicalities of this specialist area of
law. As one of the most senior lawyers present (he represented one of the
group of plaintiffs) said to this observer; "It was like playing baseball,
getting to third base, and finding the umpire doesn't know the rules of the
game".
The significance of appointing to such a sensitive case a judge patently
unfamiliar with defamation law escaped few of the lawyers present.
9.5 After both counsel had completed their submissions on liability and
damages, Rajendran J adjourned the court saying "some weeks are indicated"
(before his judgement would be delivered).
That, too, was somewhat troubling. This was a simple enough case: only two
witnesses, and the crucial issue was whether or not the plaintiff's
imputation arose. As to that question, all the relevant precedents pointed
to a verdict for the defendant. The general view of the lawyers present was
that Rajendran J should have been able to deliver his verdict immediately
after the plaintiff's submission in reply, or within hours of it. Some were
concerned that the judge may have reserved for reasons other than to
deliberate on the law and the evidence, but other saw the delay as quite normal.
10. THE JUDGEMENT:
10.1 On 29 September 1997, Rajendran J's judgement was handed down. In
short, he found for the plaintiff, and awarded compensatory damages of
S$10,000 with aggravated damages of a further S$10,000.
10.2 The judge ordered that the defendant pay 60 percent of the plaintiff's
costs. This is the more significant financial penalty on the defendant, in
that it will in Goh's case alone amount to some S$100, 000 and the ten
separate actions (even if heard together) will multiply that figure.
11. COMMENTS ON THE JUDGEMENT:
11.1 The published judgement runs to 142 pages, which is barely believable.
As noted above, this was a simple case - hardly justifying such an
extraordinary excursus. An analysis of the judgement gives rise to the
following observations:
11.1.1 The judgement recites the background facts at great length, dealing
first with the conflict between the PAP leadership and Tang Liang Hong. Tang
was subjected to vilification and defamation by the PAP leaders in the
general election campaign, and had threatened legal action if he did not
receive an apology. Goh refused, prompting Tang to give an interview to the
Straits Times in which he said the PAP leaders "are defaming (me),
assassinating my character. They concocted lies..." In turn, Goh demanded a
withdrawal of Tang's words. Tang then filed two police reports against Goh
and others.
11.1.2 In summarising the fact, the judgement records that Jeyaretnam did
not "overly" assert that the plaintiff was lying or conspiring the keep Tang
out of parliament - but that he did state his opinion that Tang did not
warrant the attacks made on him.
11.1.3 The judgement then sets out the words (see 1.3 above) spoken by
Jeyaretnam, telling the crowd at an election rally that Tang had just placed
before him the reports he made to police. He said nothing about their comments.
11.1.4 The evidence established that it was Goh Chok Tong and Lee Kwan Yew
who released the contents of the Tang complaints to the mass media
generally, on the morning after they were filed with the police. The
judgement recites the litigation against Tang, and its outcome.
11.1.5 Rajendran J than moves on to discuss "the Law of Defamation and
Freedom of Speech". He begins by spending time on inapplicable United States
law (New York Times v Sullivan) and irrelevant English Law (Derbyshire
County Council v Times); the defence of justification (which was not pleaded
in the present case). He then moves to the Jeyaretnam defence - that, the
words are not defamatory - with which he eventually agrees, but that is by
no means the end of the case.
11.1.6 The judgement notes:
"the defendant did not go so far as to suggest any complicity on the
part of the (Singapore) judges in (the plaintiff's alleged misuse of the
courts to bankrupt political opponents). To the contrary, the defendant
specially informed the court that he has every confidence in the
impartiality and fairness of the court".
And goes on "to briefly address this issue" of political leaders resorting
to the courts to pursue their claims in the light of the principle of the
independence of the judiciary. He refers to the Constitutional obligation
upon the judges to discharge their duties without fear or favour. The judge
then states he will decide the issues "frankly and in accordance with
established legal principles".
11.1.7 Thereafter, the judgement turns to Legal Principles - dealing with
the fundamental (and elementary) concepts of publications (which was not in
issue); then leaping to special damages (also not in issue); the meaning of
"defamatory" in general; the 'ordinary reasonable recipient' test; the
non-issue of the defendant's intention in speaking the words; and the
non-issue of whether the recipient need to believe the words spoken; and the
non-issue of the plaintiff's perception of the meaning of the words.
11.1.8 When the judgement turns to the question of whether the words spoken
were defamatory, a great deal of time is spent on reciting first-principles
law dealing with innuendo meanings (none was pleaded by the plaintiff). The
judge then notes that he was invited by the plaintiff's counsel, in the
event that he found the imputation pleaded did not arise, to consider what
lesser shades odf defamatory meaning arose.
Inevitably, the judgement rejects the plaintiff's imputation (of guilt).
Rajendran J followed the House of Lords' decision in Lewis v Daily Telegraph
and the English Court of Appeal decision in Mapp v News Group in doing so.
Then, doing the plaintiff's work for him, Rajendran J proceeds to formulate
a defamatory imputation that he considers does arise from the words spoken
by the defendant:
the Plaintiff may have conducted himself in such a manner that it is
possible he will be investigated or some offence or other.
11.1.9 The judgement then proceeds to consider whether extrinsic facts
would have been known to the audience, the judge was satisfied that the
audience "would know full well the background against which the defendant's
comments were made"; and that the words must have imported the meaning
that in Mr Tang's view, the plaintiff had committed an act of serious
enough proportions to merit a police report, and that (Tang) was inviting a
police investigation...
11.1.10 Moving on to reject a submission that the defendant had adopted
Tang's words, the judgement finds another imputation arises:
that the issue was of sufficient gravity that the police would not
dismiss it as a mere nuisance
although it is indeed difficult to follow this reasoning and its conclusion.
The judgement continues:
the defendant's words.....carry the suggestion that the plaintiff may,
in making those allegations against Mr Tang have done something wrong.
11.1.11 Rajendran J decides the liability issue by referring to the various
imputations he found to arise, and holding that the plaintiff had
established the lesser defamatory meaning (sic) referred to above. His
claim against the defendant therefore succeeds to the extent.
11.1.12 Next, the judge considers the defendant's liability for
republication of his words by the Straits Times (the issue was whether
republication was the natural and probable consequence of his action). Here,
he finds against the defendant.
11.1.13 At page 90 of the judgement, Rajendran J turns to the issue of the
quantum of damages. He considers recent development in England, where the
Court of Appeal has called for a more considerate proportionality between
libel damages and those awarded to plaintifffs "rendered helpless cripples
or insensate vegetables" by personal injuries, but considers himself bound
by the dictum of Lord Hailsham in Brooms v Cassell.
No fewer then 28 pages are spent in deliberating on the factors relevant to
the assessment of damages.
11.1.14 Dealing with the issue of aggravated damages, the judgement
considers the plaintiff's claim that damages were aggravated by Carman Q C's
"wide-ranging attack on the credit and credibility of the prime Minister",
and in particular to cross examination referred to at 9.4 above.
International media reporting of this aspect of the hearing was relied upon
by the plaintiff as a further aggravating factor.
The judge points out that the cross examination relied upon as aggravating
damages was expressly not objected to by Shields QC, and expresses the view
that the cross examination was, although an attempt to politicise the case,
proper and relevant.
Yet the judge says:
Had (Mr Shields) protested more vigorously during the cross
examination... I would have been prepared to intervene.
11.1.15 But then comes a passage in which the judge finds of the cross
examination that
In the end, Mr Carman's allegation were not made out. There was no
proof. The allegations were spectacular but unsubstantiated....... Mr Carman
was not entitled to raise the issue if he had no sustainable grounds for
doing so.....in this case the rhetoric was an attack on the plaintiff as
Prime Minister....the questions were directed at....the press in order to
denigrate the Prime Minister and the way he governs Singapore. For such
conduct aggravated damages is payable.
11.1.16 Compensatory damages of S$10,000 were awarded (taking particularly
into account the "high standing and reputation of the plaintiff" - of which
no evidence was called); and aggravated damages of a further S$10,000 were
added on the basis of the defendant's recklessness in speaking the words and
the conduct of his defence at the trial.
11.1.17 Referring to other ten cases against the defendant, Rajendran J
declared that it remained for those plaintiffs to prove they were identified
by the defendant's words; and added, in reference to the remaining
plaintiffs' claims for aggravated damages:
it remains to be seen whether the defendant persists in conducting his
defence in the same fashion as he did in this case.
11.1.18 In making his costs orders, the judge was highly critical of the
plaintiff's pleadings and their "unreasonable assertions" which resulted in
the case being "overstated". Accordingly, the plaintiff was awarded only 60
percent of his costs (which it is understood will be in the vicinity of
S$100,000).
12 THE DECISION - SOME CAUSES FOR CONCERN:
12.1 The most troubling aspect of the decision is the judge's undue
deference to the plaintiff. He came to the court as an ordinary citizen, not
as the Prime Minister, but it is impossible to escape the impression that
Rajendran J treated him as a litigant of higher status than he was entitled to.
That attitude informed not just the award of aggravated damages, but
findings of fact on issues (notably reputation and injury to it) where no
evidence was adduced.
12.2 The finding that the words were defamatory - but not as pleaded by the
plaintiff - is equally of concern. For the judge to formulate a "lesser
meaning" in a court system that is strict in its pleadings seems at best
unfortunate, in that natural justice is denied to a defendant who may well
wish to plead justification to the imputation that was eventually
formulated, but had no opportunity to do so. In the present case, a plea of
truth to the imputation(s) as formulated by the trial judge would have been
entirely appropriate.
It would be unfortunate indeed if the judge's articulation of a lesser
meaning imputation were irregular within the Singapore judicial system -
because it would strongly suggest that the Prime Minister had been given
specially favourable treatment to avoid the embarrassment of losing his
case. Reviewing the High Court Registrar's printout, it would certainly
appear that unsuccessful plaintiffs have failed because their imputations
did not arise (see, especially., Bored Pilling v Huat & Ors (1994); Bok v
Lim (1989); Overseas Chinese Bank v Business Times (1994); Straits Times v
Workers Party (1986). It is also noteworthy that non-PAP plaintiffs who
failed to prove reputational harm in another case were awarded contemptuous
damages of S$10 (Rahman & Ors v Eddit &Ors (1995).
(signed)
Stuart Littlemore QC
St. James Hall Chambers
169 Philip Street,
SYDNEY 2000 Australia
1 October 1997
--- end ---
-- Quis custodiet ipsos custodes?
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