Arul Chandran v Chew Chin Aik Victor JP

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 January 2001
• Neutral Citation: [2001] SGCA 3
• Date: 16 January 2001
• Docket Number: Civil Appeals Nos 92 and 93
• Plaintiff Counsel: Howard Cashin (instructed), Imran Hamid and Burton Chen (Tan Rajah & Cheah),Suresh Damodara, John Thomas and K Sureshan (Colin Ng & Partners)
• Published date: 19 September 2003
• Court: Court of Appeal (Singapore)
• Subject Matter: Qualified privilege,Taxation on High Court scale,Quantum of damages,Whether abuse of process to allow plaintiff to rebut claims,Civil Procedure,Justification,Whether aggravated damages justified,Whether finding in prior judgment overruled on appeal,Function of general damages,Defamation,Tort,Whether issue estoppel applicable,Damages,Whether truth of defamatory remarks proved -Whether judgment in prior case basis for justification,Whether malice proved on defendant's own evidence,Whether taxation should be on Subordinate Courts scale,Whether defamatory remarks made on occasion of qualified privilege,Costs

(delivering the grounds of judgment of the court): This is a cross-appeal against the decision of Chan Seng Onn JC, with respect to a defamation suit instituted by Mr C Arul against Mr Victor Chew. The judicial commissioner held that Mr Chew defamed Mr Arul and awarded the latter $150,000 in damages. In CA 92/2000, Mr Chew appealed against the judicial commissioner`s finding that he defamed Mr Arul and against the quantum of damages, which was, in his view, too high. In CA 93/2000, Mr Arul, who thought that he was entitled to more damages than the sum awarded, appealed against the judicial commissioner`s award of damages. We dismissed all the respective appeals with costs and now set out the reasons for our decision.

Background

Mr Arul, a lawyer, and Mr Chew, an architect, are both members of the Tanglin Club (hereinafter referred to as the `club`). Shortly before the annual general meeting (hereinafter referred to as the `AGM`) of the club on 25 May 1998, at which the office-bearers of the club were to be elected, Mr Chew, who was campaigning on behalf of a number of candidates including his son, circulated a flyer entitled `A Layman`s Guide to the AGM`. In it, the respondent stated as follows:

... Is this the Club you want? Is this the Committee you want? ...

If you want them to stay on to lead the Club to further disrepute the following have offered their services to continue the ruin of the Club - John Rasmussen, C Arul, Kenneth Chew, KT Chan, Patrick Garez, Vince Khoo and Mok Yew Fun.

Otherwise there are Graeme McGuire, KP Swee, Sidney Rolt, Andre Bouvron, Chew Kei Jin, Chim Hou Yan, Donald Grant, Bill Gartshore and Colin Taylor, level headed sensible people who are going to put things right and return us the Club we knew before all this acrimonious mud-slinging and racial bickering descended upon us.

Despite Mr Chew`s campaign, five of the seven incumbent members of the club committee were re-elected. Among them was Mr Arul, who was elected as Vice-President. One day after the AGM, Mr Arul saw a copy of the respondent`s flyer. The flyer was not signed but it bore the respondent`s club membership number, which is `C642`.

Mr Arul, who noted that the flyer contained personal attacks against him and other members of the club committee, wrote to Mr Chew on 27 May 1998 to find out whether or not the latter was the author of the flyer. He sent a reminder to the respondent on 2 June 1998.

In his reply dated 5 June 1998, Mr Chew stated as follows:

There are two Arul Chandrans in the Telephone Book - one with his address at 23 Balmoral Rd, [num ]14-23, and the other at Block 121 Yuan Chuan Rd [num ]10-405.

Are you the Arul referred to in the newspaper cutting reproduced below as the Singapore lawyer who was sentenced to two years jail for fraud and breach of trust against an housewife in Johore?

I ask this because if you are the other Arul, I do not intend to reply to his letter as I do not know him ...

Mr Chew attached a newspaper cutting to his letter of 5 June 1998. The newspaper reported that in the High Court in Johore, Abdul Razak J sentenced three lawyers, including Mr Arul, to jail for two years for contempt of court after passing judgment against them for fraud in relation to the purchase of a property in Johore. As Mr Arul`s defamation suit concerned Mr Chew`s repeated references to the judgment of Abdul Razak J in Tara Rajaratnam v Datuk Jagindar Singh & Ors [1983] 2 MLJ 127 , it would be appropriate at this juncture to discuss the said Malaysian proceedings in greater detail.

The Malaysian proceedings

Legal proceedings were instituted in Malaysia in 1979 by Madam Tara Rajaratnam against two lawyers, Mr Jagindar Singh and Mr P Suppiah, for defrauding her with respect to the purchase of a property in Johore. Mr Arul was subsequently named as the third defendant in the suit on the ground that he colluded with the first and second defendants to defraud the plaintiff. Abdul Razak J entered interlocutory judgment against all the defendants and sentenced them to imprisonment for two years for contempt of court. In his judgment, the judge called Mr Arul a `most vicious and dangerous fraud`.

The three defendants succeeded in their appeal against the sentence of imprisonment for contempt of court. However, their appeal against the interlocutory judgment was dismissed by the Malaysian Federal Court of Civil Appeal.

All three defendants then appealed to the Judicial Committee of the Privy Council. During the course of those proceedings, the Privy Council was informed that Madam Tara Rajaratnam had withdrawn all her allegations of fraud against Mr Arul and had consented to his appeal being allowed on the understanding that each party was to bear his or her own costs. What is significant is that when allowing Mr Arul`s appeal on the basis of the consent order, the Privy Council offered its views on his role in the alleged fraud in the following terms:

As regards the third appellant, their Lordships were informed in the course of the hearing before them that his counsel and that for the respondent were agreed that his appeal should be allowed by consent, upon the terms that all allegations of fraud against the third appellant were withdrawn, and also any claim against him as allegedly a constructive trustee, and that as between him and the respondent there should be no order for costs here or in the courts below. Their Lordships consider it proper in the circumstances that the third appellant`s appeal should be allowed upon these terms. It is abundantly plain that he had no hand whatever in the events of 30 March 1974, which form the basis of the respondent`s case of fraud against the other appellants. [See [1986] 1 MLJ 105, 112; emphasis added.]

Although the Privy Council clearly did not share Abdul Razak J`s view of Mr Arul`s role in the defrauding of Madam Tara Rajaratnam, this fact was not mentioned by Mr Chew when he referred to Abdul Razak J`s judgment in his numerous letters to Mr Arul and to the president of the club.

The first publication

After receiving Mr Chew`s letter of 5 June 1998, Mr Arul replied on 12 June 1998, saying that he was `the very same Arul Chandran referred to in the newspaper cutting enclosed` and asking Mr Chew to reply to his question.

Mr Chew did not reply to the question posed to him. Instead, on 24 June 1998, he wrote to Mr Arul as follows:

I was merely being meticulously careful on establishing the right identity to avoid offending the wrong person and I fail to understand why you took such exception to an address in Yuan Ching Road. I will have you know that there are many respectable, law abiding, honest citizens residing there - unless you now fancy yourself a class above these people.

Moreover, by the vexatious tone of your letter, it would seem that you expect the answer to my enquiry to be common knowledge. Am I supposed to believe then that the Members who voted for you in the last elections knew of the report of your conviction for fraud and breach of trust against the housewife in Johore?

A reply in due course will be much appreciated.

For convenience, the allegedly defamatory words in the above letter are underlined. After receiving the above letter, Mr Arul replied on 26 June 1998, asking Mr Chew not to avoid the issue and to answer the simple question as to whether he was the author of the flyer.

Mr Chew replied with a letter dated 10 July 1998, which contained the following paragraphs.

According to a newspaper report, `three lawyers, including a Singaporean, were sentenced to two year`s jail each for contempt ... The lawyers were found to have committed fraud and breach of trust against ... a defenseless housewife ...`

In your letter dated 12 June 1998 you said `I am the very same Arul Chandran referred to in the newspaper cutting ... as you no doubt already know`.

I then asked whether the Members who voted for you in the last elections were aware of this, to which your solicitors, C Arul & Partners, answered that it was irrelevant to the issue.

Are you saying that someone who has been called `a most vicious and dangerous fraud` by a High Court Judge ... is now the Vice-President of the Club is something of no relevance to the Members? I wonder how you had the nerve to offer yourself for office in the first place.

Come next year you will expect to be the President and, if the Members are still in the dark about your past involvement, you might well be the President, even by default, as happens so often in this club. Are you aware what you are doing to the club? Or is all this quite irrelevant and you do not care?

Have you prepared how to deal with the situation when someone `leaks` it out to the Press ... again a not uncommon thing with this Club?

Even now, how can all the other self respecting members sit in the committee with you; and, when the word gets down, how are you to face the staff - let alone try to tell them what to do?

In the circumstances, what would you have in mind as relevant? I shall be pleased to hear it from you.`

[ast ][ast ] If you wish to know my source, I have copies of the written judgment by Justice Abdul Razak which I shall be pleased to supply you on request.

The alleged defamatory words in the above letter are underlined. On the same day that he sent the letter to Mr Arul, Mr Chew wrote to the president and committee of the club, enclosing all the previous correspondence between Mr Arul and himself, including his own letters to Mr Arul dated 24 June 1998 and 10 July 1998. In the covering letter, Mr Chew stated as follows:

The enclosed are copies of correspondence between Mr C Arul and me to which I refer hereunder.

You will see that the earliest letter was from C Arul himself followed by one signed on his behalf and the latest now comes from the firm of C Arul

...