Judge 'erred in three key areas'

THE court of appeal said yesterday that Justice S. Rajendran erred in three key areas when deciding damages for the prime minister in his defamation suit against Mr J.B. Jeyaretnam.

He had awarded Mr Goh Chok Tong $20,000 but the court revised it to $100,000.

Firstly, the court said, the judge failed to find express malice on the part of the Workers' Party leader when he announced to a rally crowd on the eve of last year's general election, that he had before him two police reports filed by party colleague Tang Liang Hong against Mr Goh.

Secondly, he failed to give sufficient weight to some relevant aggravating factors.

Thirdly, the award of $20,000 was "totally disconsonant" with past defamation cases.

But the court disagreed with Mr Goh's lawyer, Mr Davinder Singh, that the judge failed to take all the relevant factors into account.

"This criticism is not justified. It is quite clear to us that the trial judge took pains to examine every possible factor relevant to the issue of damages."

ERROR # 1

JUSTICE Rajendran had found that Mr Jeyaretnam had not acted in malice but out of recklessness when he made the offending statement.

But the appeal court agreed with Mr Singh's submission that if the high court had found that Mr Jeyaretnam had made his statement about the police reports recklessly without caring if it was true or not, then he is "treated as if he knew it to be false". Therefore, he acted in malice.

The appeal court said: "The statement was a cleverly disguised sting, directed at Mr Goh, and was intended by Mr Jeyaretnam to cast a stain on Mr Goh's reputation in the hope that it might enhance his (Mr Jeyaretnam's) chances at election the next day."

Mr Jeyaretnam, the court added, must have been aware that there were reporters in the audience as they had been covering the rallies throughout the election campaign.

"It is therefore beyond credulity that he did not intend the re-publication of his comments, or that he was unaware that such a consequence would follow from his announcement."

ERROR # 2

IN his cross-examination of PM Goh during the trial, Mr Jeyaretnam's lawyer, Mr George Carman, aggravated the hurt the PM suffered, said the court of appeal.

But the judges said they found themselves at a loss to understand why Justice Rajendran seemed more preoccupied with the fact that Mr Goh's counsel, Mr Thomas Shields, did not object more vigorously against Mr Carman's line of questioning.

"It seems to us to be of no relevance that Mr Shields did not do more to protect his client from the offensive suggestions made by Mr Carman -- exercising control over how a counsel conducts his case is a function of the judge, not the opposing counsel. In so far as this was a basis on which the trial judge adjudicated the extent of aggravation caused by Mr Carman's cross-examination, we think he erred."

But the court agreed with the judge that the queen's counsel had put his case strongly but failed to support it with evidence. It said that he played to the gallery and did not attempt to elicit evidence relevant to the trial.

"There is no doubt in our minds that the wide range of accusations he made against Mr Goh on the stand amounted to an attack on his integrity, character and suitability for his position as prime minister of Singapore," it said.

"Not only that, but, as the trial judge found, they amounted to a baseless attack, which, we think, aggravated the hurt caused to Mr Goh, for which he is entitled to compensation."

ERROR # 3

THE three judges found that the $20,000 in damages awarded failed to give sufficient regard to the precedents set by previous defamation cases.

It noted that a broad framework in awarding damages had emerged from past cases and these should serve as a guide, even while they were not necessarily accurate indications of appropriate awards.

It said that given its findings on the issue of malice and the gravity of aggravating factors, plus the extent of publication of the defamation and Mr Goh's high standing, the $20,000 was totally disconsonant with past awards, "including those which might now be considered excessive".

In particular, it cited the case in which opposition MP Chiam See Tong was awarded $50,000 when he sued a restaurant for using his photograph in its advertising and another case of his in which he received $120,000 in damages. This related to his successful suit against his former Singapore Democratic Party colleagues for accusing him of being a government stooge.

Said the court: "We are mindful of the differences between these two cases and the present one. Nonetheless, they are of some relevance in this respect showing a broad framework of the awards made."

Published in the Straits Times. July 18, 1998