AG v Ting Choon Meng

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Chao Hick Tin JA,Andrew Phang Boon Leong JA
• Judgment Date: 16 January 2017
• Neutral Citation: [2017] SGCA 6
• Published date: 19 January 2017
• Date: 16 January 2017
• Year: 2017
• Hearing Date: 04 October 2016
• Plaintiff Counsel: Hui Choon Kuen, Lam Qian Yi, Debra and Tan Zhongshan (Attorney-General's Chambers)
• Defendant Counsel: Choo Zheng Xi and Lee Hong Jet Jason (Peter Low LLC),Eugene Thuraisingam, Suang Wijaya and Gavin Tan (Eugene Thuraisingam LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 6
• Docket Number: Civil Appeals Nos 26 and 27 of 2016

Andrew Phang Boon Leong JA (delivering the judgment of the majority consisting of Chao Hick Tin JA and himself): Introduction

The present appeals concern a narrow question of law – how s 15 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“the Act”) is to be construed. Specifically, they concern the issues of whether the Government may invoke s 15 of the Act (“s 15”) to obtain an order for a person to be prevented from or to cease publication of a false statement of fact and, if so, when it would be “just and equitable” to do so. In Ting Choon Meng v Attorney-General and another appeal [2016] 1 SLR 1248 (“the Judgment”), the learned High Court Judge (“the Judge”) held that the Government cannot invoke s 15 and that, in any event, it would not have been “just and equitable” to grant the orders sought in the circumstances of the case.

Background

The respondent in Civil Appeal No 26 of 2016 (“Dr Ting”), is a director of MobileStats Technologies Pte Ltd (“MobileStats”). MobileStats was the owner of Singapore Patent No 113446 (“the Patent”), which was registered sometime in 2005. The respondents in Civil Appeal No 27 of 2016 (“CA 27/2016”) are affiliated with “The Online Citizen”, a website that states that it aims to be the “leading online source for social-political news and views in Singapore”.

On 29 July 2011, lawyers for MobileStats wrote to the Ministry of Defence (“MINDEF”), alleging that military medical vehicles known as “Battalion Casualty Stations” that MINDEF had purchased from Syntech Engineers Pte Ltd (“Syntech”) infringed the Patent. Notwithstanding MINDEF’s invitation that MobileStats direct its complaints towards Syntech, MobileStats proceeded with Suit No 619 of 2011 (“S 619/2011”) against MINDEF for patent infringement. MINDEF’s defence was conducted by Syntech, who instituted a counterclaim for the revocation of the Patent on the ground of invalidity. As it turned out, S 619/2011 was discontinued mid-way through the trial due to the financial position of MobileStats, and judgment was entered on the counterclaim on 15 January 2014.

On 30 December 2014, Dr Ting gave an interview to the first respondent in CA 27/2016. The video of the interview and an accompanying article were uploaded on The Online Citizen on 15 January 2015. In the video, Dr Ting made a number of allegations against MINDEF, including the following: (a) that it had intended from the start to infringe the Patent and had been waiting in a “premeditated” way to revoke the Patent; and (b) that it had been conducting a “war of attrition” in S 619/2011 to deplete MobileStats’ financial resources (collectively, “the Allegations”). MINDEF responded by way of a statement posted on its Facebook page refuting the Allegations, which it said were “false and baseless”. This last-mentioned statement was reproduced in full in a subsequent article published on The Online Citizen, and a link to the same was provided on the webpage hosting the original article and the video.

On 11 February 2015, the appellant, representing MINDEF, applied in the State Courts for an order under s 15(2) of the Act (“s 15 order”) by way of an originating summons. The prayers, as amended, sought a declaration that the Allegations were false and that they not be published without the following notification:

Statements herein which state and/or suggest to the reader that:

(i) MINDEF had knowingly infringed [the Patent], with the intent to subsequently apply to revoke [the Patent] upon [Dr Ting’s] legal challenge; and (ii) MINDEF waged a ‘war of attrition’ against MobileStats, by deliberately delaying the court proceedings in Suit 619 of 2011 and asking for more trial dates than necessary, thereby increasing legal costs,

have since been declared by the Singapore Courts to be false. For the truth of the matter, please refer to MINDEF’s statement [as posted on its Facebook page].

The decisions in the courts below

The District Judge granted the orders in terms, holding that ss 3 and 36 of the Government Proceedings Act (Cap 121, 1985 Rev Ed) (“the GPA”) provided the Government the “legal right to make an application” under s 15: see Attorney-General v Lee Kwai Hou Howard and others [2015] SGDC 114 at [35]. He found the Allegations to be false and that it was just and equitable to grant the orders for two reasons: (a) that the Allegations would “severely undermine public confidence in the Government and in the public institutions” if left unchecked, and (b) that they constituted a collateral attack on the judgment rendered in S 619/2011 (at [84]–[85]).

The Judge allowed the appeals against the District Judge’s decision, finding that the question of whether the Government has the right to invoke s 15 is anterior to the application of ss 3 and 36 of the GPA, which merely ensure any such right is not prejudiced (see the Judgment at [25]). He accepted that s 15 stands apart from the rest of the Act in so far as it encompasses statements not constituting harassment, but that it is nonetheless confined to false statements that are “capable of affecting their intended subject[s] emotionally or psychologically” (see the Judgment at [41]). Accordingly, only natural persons may apply for a s 15 order.

Having allowed the appeals on this threshold question, the Judge nevertheless proceeded to express the view that it would not, in any event, have been just and equitable to grant a s 15 order. He held that only the second of the Allegations was false, and that although that particular statement did have the potential to bring MINDEF into disrepute, MINDEF’s interests were not substantially compromised due to the triviality of the complaint and the ability of MINDEF to put forward its side of the story through the media. He also took into account the fact that The Online Citizen had taken significant steps to present MINDEF’s side of the story that suggested that the veracity of the Allegations was in doubt (see the Judgment at [56] and [57]).

The respective parties’ arguments in the appeals

The appellant submits that ss 3 and 36 of the GPA give rise to a presumption that the Government is entitled to apply for a s 15 order, and that there was no clear Parliamentary intent to exclude the Government from the protection of the Act. It emphasises that the objective underlying s 15 is to deal with false statements of fact and not merely harassment, and that this objective is perfectly consistent with an interpretation which extends the right to invoke s 15 to the Government and corporate entities. As to the order that should have been granted had the Government been able to avail itself of s 15, the appellant argues that the seriousness of the allegation that it had waged a “war of attrition”, the complexity of the factual matrix, and the confidentiality of certain documents makes it necessary for a s 15 order to be made to correct the alleged falsehood. However, it does not appeal against the Judge’s decision that the first of the Allegations was not false.

The respondents do not contest the submission that the accusation that MINDEF had waged a “war of attrition” is a false statement of fact. They largely rely on the reasons given by the Judge and the speeches given during the parliamentary debates. Additionally, Dr Ting submits that to read “person” in s 15 in a manner to include the Government would infringe upon his right to free speech under Art 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). In a slightly different vein, the respondents in CA 27/2016 submit that because to construe “person” in s 15 in the aforementioned manner would impose a significant burden on an individual’s right to free speech, the appellant must adduce “cogent and unusually convincing evidence to rebut the presumption that Parliament did not … intend to impose [such] a significant burden”.

Our decision Issue 1 – whether the Government is a “person” under s 15 The issue stated

This particular issue is of the first – as well as threshold – importance in so far as the present appeal is concerned. At risk of belying the many difficulties of statutory interpretation that were evident from both the written submissions as well as oral arguments before this court, the issue that arises from s 15 can be stated simply as follows: does this provision apply only to human beings or does it also apply to other entities (such as corporations and (as was argued by the appellant in the present case) the Government)? Before proceeding to examine the issue at length, we should state that, like the Judge, we do not accept the arguments made by the appellant that centred on ss 3 and 36 of the GPA. The provisions read as follows:

Right of Government to sue

3. Subject to the provisions of this Act and of any written law, where the Government has a claim against any person which would, if such claim had arisen between private persons, afford ground for civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with the provisions of this Act.

Application to Government of certain statutory provisions

36. This Act shall not prejudice the right of the Government to take advantage of the provisions of any written law although not named therein; and in any civil proceedings against the Government the provisions of any written law which could, if the proceedings were between private persons, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Government.

The appellant refers us to the decision of the majority in Government of the State of Sarawak & Anor v Chong Chieng Jen [2016] 3 MLJ 41 (“Chong Chieng Jen”), which involved a defamation suit commenced by the State Government of...