Court cuts PAP's payout

BY Koh Buck Song

THE Court of Appeal yesterday reduced the $7.175 million damages awarded in May against lawyer Tang Liang Hong by almost half, to $3.63 million.

In a 143-page judgment, Justices M. Karthigesu, L.P. Thean and G.P. Selvam held that Mr Tang's statements against 11 People's Action Party leaders were defamatory. But his remarks in 12 of the 13 suits had a close overlap, as they were made in the heat of the January general election or in connection with it.

By applying aggravation to each suit, Justice Chao Hick Tin, who awarded the damages, had used "multiple counting", so the total was "overblown and hugely disproportionate to the aggregate harm and injury".

Moderation should also apply wherever a plaintiff had more than one suit, the judges said.

They also noted that it was wrong to consider each suit separately without considering the total award.

What mattered was whether "the total of several awards ... exceeds the maximum amount of damages as would reflect or represent the appropriate compensation for the aggregate harm and injury inflicted".

They also cautioned against allowing defamation awards to keep on overtopping those for previous cases.

"Such a trend should be discouraged, otherwise damages for defamation would mount and eventually become extremely high, ranking almost with the grossly exorbitant awards so often made by jurists in other jurisdictions," they said.

The amount for Senior Minister Lee Kuan Yew was lowered from $1.85 million to $950,000 -- the largest difference, in absolute terms, among the plaintiffs.

Prime Minister Goh Chok Tong, originally awarded $1.4 million, will now get $700,000.

Lawyers for both sides have been given 14 days to make submissions on the question of costs in these appeals. Another sum of $900,000, out of the original record total of $8.075 million, has already been paid by Hongkong-based periodical Yazhou Zhoukan, and was not considered in this reduction.

The court, which sat in September, found that what Mr Tang said to Yazhou Zhoukan -- about apartment purchases by SM Lee and Deputy Prime Minister Lee Hsien Loong -- stood by itself.

But Mr Tang's other remarks were all closely related and made around the time of the GE, where he stood unsuccessfully as a Workers' Party candidate. It said this fact weighed heavily in its decision to moderate the awards.

On aggravation, which the High Court took into consideration in awarding damages, the Appeal Court again found overlapping features, such as absence of retraction and repeated defamation.

The three-judge panel also found that Mr Tang could not be held liable for the publication, in the media, of the police reports he had lodged against the PAP leaders, as he was not responsible for their release.

But the Court rejected other arguments by Queen's Counsel Charles Gray who had argued that as no plaintiffs suffered real damage to their work or standing, the damages should be reduced.

It said that there was a need to consider also vindication, compensation for injury to reputation and solatium for hurt feelings.

It threw out Mr Gray's plea for lower damages because of the "chilling effect" of high awards to politicians.

It was wrong to allow citizens more latitude to make defamatory remarks of politicians, as this would violate article 12(1) of the Constitution, which says all persons are equal before the law.

The Court also made these decisions:

It rejected the argument that the Mareva injunction issued by Justice Lai Kew Chai should be set aside because the judge should not have heard the case as he was biased, and had a close working relationship with SM Lee.

It said the allegation was not supported by any shred of evidence and there was no factual basis for it. The Mareva injunction was valid, as there was a "real risk of dissipation of assets" in Mr Tang's case, the judges ruled.

Justice Goh Joon Seng was entitled to strike out Mr Tang's defences for not complying with the Mareva injunction. Because Mr Tang did not explain, the only reasonable inference was that he intentionally flouted court orders in "contumelious disobedience".

Lawyer J.B. Jeyaretnam, who represented Mr Tang, should not be asked to show cause why he should not bear the costs of the application to get Justice Lai to disqualify himself for apparent bias. It would be "an unduly onerous burden" on lawyers to have to verify every client's statement.

Mr Tang said in a phone interview from Melbourne, Australia, last night that he intended to start a fresh action to strike out the Appeal Court's judgment, as it was a "smokescreen" to mislead the public into believing that justice had been done.

Why the record awards were reduced

Reports by Pang Gek Choo and Tan Hsueh Yun

THE damages that lawyer Tang Liang Hong had been ordered by the High Court to pay for his defamatory remarks against Prime Minister Goh Chok Tong and 10 other People's Action Party leaders are inappropriately high when viewed "in totality".

In its 143-page judgment, the Court of Appeal said that the earlier awards did not take into account the great deal of overlap in the actions of the 11 plaintiffs who filed 12 suits in all.

It agreed with Queen's Counsel Charles Gray, the lawyer acting for Mr Tang, who, in the appeal hearing in September, had argued that the court must look at the totality of the awards when assessing damages.

The awards, he had said, were "inordinately excessive" and "out of all proportion" to the aggregate harm caused to the 11 PAP plaintiffs.

But lawyers acting for the plaintiffs had counter-argued that each libel or slander in the separate cases merited a separate award by itself.

They had also noted that the total sum of all the awards was huge only because it comprised multiple awards.

While accepting the plaintiffs' argument, the court said in its judgment that "it seems wrong in principle to assess and view each award individually without any regard to the totality of the awards made in favour of the plaintiffs".

It added that where there were two or more defamatory statements made of the same person and they bore a close relationship, there would be inevitably some degree of overlap.

Thus, it said: "The court must look at the totality of all the awards and moderate the quantum of the individual awards so that, in the end, it would yield a sum appropriate to compensate the plaintiff for the aggregate harm and injury occasioned by the combined or cumulative effects of the defamatory statements."

Such an approach, it said, was an eminently fair and sensible one as it prevented the risk of overcompensation through overlapping.

Applying this to the present case, it noted that 12 statements made by Mr Tang had given rise to 12 different actions.

Yet, they were closely related because they all arose out of the "underlying saga" which began when Mr Goh and the PAP men sought to expose Mr Tang as an anti-Christian and anti-English educated Chinese chauvinist.

Citing another "compelling" reason why the individual awards should be moderated, the court said that there had been "double" or "multiple" countings of the common aggravating factors in cases where a plaintiff had been entitled to two or more awards.

"Such a high degree of overlap ... calls for a moderation of the individual awards to each of the plaintiff entitled to two or more awards," it said.

However, the court rejected other arguments put forward by Mr Gray. PAP leaders suffered no real damage?

Mr Gray had said that none of the plaintiffs had suffered any damage from the libel as they had retained their office, job, home and family.

He had also noted that Mr Goh himself had testified in another trial that 1997 had so far been a good year for him.

Thus, he argued that the injury was utterly incommensurate with the windfalls represented by the awards.

But the Court of Appeal dismissed this line of argument as "fallacious".

It said that in assessing damages for defamation, the court must consider not just the need to compensate the party for the injury to his reputation, but also the need to vindicate him.

It also said the damages were not awarded as if there had been a depreciation in value of a plaintiff's reputation.Large awards would have a chilling effect?

Mr Gray had also urged the court to reduce the damages to a modest level because the defamation actions contained an intensely political flavour.

Libel actions, he had argued, were for vindicating reputation and not to be used as political bludgeons. If large damages were allowed to stand, it would have a "chilling effect" on the freedom of expression and political debate.

But the court rejected this submission, saying that the PAP plaintiffs were suing as private citizens, and not in their official capacity.

And, as Mr Gray himself had admitted, politicians, like other citizens, did not forfeit the protection of their reputations merely because they had entered the political arena and assumed high office.

It said: "Any argument which calls for a reduction or moderation of damages purely on the basis that the successful plaintiff is a politician, say a minister, or that the case has a political flavour, is untenable and wrong. "To accept such a contention is to allow a person more latitude to make defamatory remarks of such personality and to escape with lesser consequences for the defamation he committed." Out of proportion to awards for physical hurt?

Mr Gray had argued that the damages were so excessive that they were out of proportion to damages recoverable for physical injuries. He had also suggested that one way of testing the correctness of the awards in defamation cases was to compare them with awards of general damages for personal injuries.

But rejecting his case, the Court of Appeal said the factors relevant to the consideration of the measure of damages in both cases were quite different.

Firstly, it explained, the defamation action aimed to vindicate a person's reputation, and the damages awarded had to be regarded as the "demonstrative mark" of that vindication.

"Thus, the amount of damages awarded in defamation actions is not only given in relation to circumstances of the past and present, but it must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future," it added.

Secondly, in defamation cases, the award also had to reflect the aggravation caused to the plaintiff by the defendant's subsequent conduct or any mitigation, in addition to the need to vindicate the plaintiff's good name. Irrelevant matters considered?

Mr Gray had said that Justice Chao had taken into account matters which were irrelevant to the case when he assessed the damages.

In particular, he had referred to the judge's criticism of Mr Tang's application to strike out certain actions by the plaintiffs as an abuse of court processes.

Other "irrelevant" factors included Mr Tang's non-compliance with the orders of the Mareva Injunction and the receivership orders, his application to disqualify Justice Lai Kew Chai from hearing the case and his contemptuous remarks about the court.

On this, the Court of Appeal agreed with Mr Gray, but not entirely.

It said that Justice Chao was entitled to consider some of the above factors in assessing damages, such as Mr Tang's conduct with reference to the defamatory statements he uttered.

However, it agreed with Mr Gray that some of the matters referred by the judge were not relevant to the issue of damages.

They included Mr Tang's non-compliance with the terms of the Mareva injunction and receivership orders, his contemptuous remarks about the court and his attacks on Justice Lai.

It added: "It is important to bear in mind that the damages are awarded to compensate the plaintiffs for the harm and injury they have suffered and not to punish Mr Tang for his improper conduct."

Published in the Straits Times. November 13, 1997