International Commission Of Jurists

Related: Storm over a teacup - Singapore v Littlemore

 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

 

 

 

 

 

 

 

 

 

 

.