Bank of China v Asiaweek Ltd

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 30 January 1991
• Neutral Citation: [1991] SGHC 20
• Citation: [1991] SGHC 20
• Defendant Counsel: Imran H Khwaja (Tan Rajah & Cheah)
• Published date: 19 September 2003
• Plaintiff Counsel: VK Rajah (Rajah & Tann)
• Date: 30 January 1991
• Docket Number: Suit No 1206 of 1989
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Whether an apology amounted to admission of defamation,Statutory defence,O 18 r 19 Rules of the Supreme Court 1970,Whether requirements fulfilled,Defamation action,Tort,Defamation,s 7 Defamation Act (Cap 75),Whether words complained off were defamatory in their natural and ordinary meaning,Striking out,Whether filing of defence was frivolous, vexatious and an abuse of the process of court

Cur Adv Vult

The plaintiff is a bank incorporated in the People`s Republic of China and carries on banking business in Hong Kong, Singapore and elsewhere. The defendant is a publisher of, among other things, a magazine in the Chinese language known as Yazhou Zhoukan (which is the Chinese edition of Asiaweek ). The magazine is circulated and read in Hong Kong, Singapore, Malaysia, Indonesia and elsewhere. In the edition dated 18 June 1989 of Yazhou Zhoukan , which was published prior to that date, there appeared on p 22 thereof a paragraph, which as translated into English reads:

As Singapore is highly sensitive to any forms of opposition, the Chinese there did not stir up waves of protests against Beijing. However, as a protest against the atrocity of Beijing, they made a run on the Bank of China Singapore Branch which is directly under Beijing. The deputy general manager of the bank, Min You Chi, told Asiaweek: `In the light of what has happened, the feeling of depositors is understandable.` Up to last Thursday, a total of about US$75m was withdrawn, leaving the bank no alternative but to suspend business temporarily. (Emphasis added.)

The plaintiff complained that the words contained in that paragraph, and in particular the italicized words, were defamatory of the plaintiff and demanded that the defendant should immediately publish a complete retraction of the words complained of and an apology on terms to be approved by the plaintiff. Upon the defendant`s refusal to comply with such demand, the plaintiff on 24 June took out a writ against the defendant claiming damages for libel.

There followed correspondence between the solicitors for the defendant and the plaintiff respectively with a view to an amicable settlement; unfortunately, the proposals made and discussed between them did not lead to fruition. The suit accordingly proceeded. The plaintiff delivered the statement of claim on 14 July 1989 and the defendant delivered the defence on 31 July 1989. On 1 August 1989, the defendant filed an affidavit affirmed by its director and editor-in-chief, Michael O`Neill, on 26 July 1989, which was purported to be filed pursuant to s 7 of the Defamation Act (Cap 75) (the Act). I shall have occasion to refer to the pleadings and this affidavit in greater detail in a moment.

On 16 August 1989, the plaintiff took a bold step by applying by SIC 4767/89 for an order under O 18 r 19 of the Rules of the SuCourt 1970 and under the inherent jurisdiction of the court that the defence be struck out and the plaintiff be at liberty to enter judgment against the defendant for damages to be assessed and costs. The application was heard before the senior assistant registrar who allowed the application; he struck out the defence and gave leave to the plaintiff to enter interlocutory judgment. Interlocutory judgment was subsequently entered. Against that decision, this appeal was brought. At the conclusion of the hearing, I found myself in entire agreement with the learned senior assistant registrar and dismissed the appeal with costs. I now give my reasons.

Striking out the whole of a defence to a claim for libel is an extraordinary step and is only allowed in a plain and obvious case. In Drummond-Jackson v British Medical Association & Ors [1970] 1 WLR 688; [1970] 1 All ER 1094, the plaintiff brought an action against the defendants for libel in respect of an article published in the British Medical Journal.

The defendants applied to strike out the statement of claim. The application was dismissed by the master and, on appeal, by Milmo J. On further appeal, the Court of Appeal, by a majority, dismissed it. Lord Pearson after referring to O 18 r 19 of the English Rules of Supreme Court said, at pp 695-696:

Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases. The authorities are collected in The Supreme Court Practice 1970, under the heading `Exercise of powers under this rule` in the notes under RSC O 18 r 19 p 284. One which might be added is Nagle v Feilden [1966] 2 QB 633, 648, 651. Reference has been made to four recent cases: Rondel v Worsley[1969] 1 AC 191; Wiseman v Borneman [1969] 3 WLR 706; Roy v Prior[1970] 1 QB 283; and Schmidt v Home Office[1969] 2 Ch 149. In each of these cases there was an important question of principle involved, and the hearing of the application under RSC O 18 r 19 was much longer and more elaborate than is usual, but the final decision was that the alleged cause of action was clearly unsustainable, and so the statement of claim disclosed no reasonable cause of action and was ordered to be struck out. There was no departure from the principle that the order for striking out should only be made if it becomes plain and obvious that the claim or defence cannot succeed, but the procedural method was unusual in that there was a relatively long and elaborate instead of a short and summary hearing.

The present case is, in my opinion, a plain and obvious case, though counsel for the plaintiff and the defendant each developed prolonged and serious arguments before me - both counsel took more than a day on their arguments. But, in the words of Sir Gordon Willmer in Drummond-Jackson at p 700, the question whether a point is plain and obvious does not depend upon the length of time it takes to argue. Rather the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result.

On the question of striking out, counsel for the plaintiff also referred me to following pronouncement of Lord Templemen in Williams and Humbert v W & H Trade Marks (Jersey) Ltd [1986] AC 368 at pp 435-436:

My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself.

This is a much stronger case than that stated by Lord Templemen. I harbour more than doubts about the soundness of the defence; indeed I have not the slightest doubt at all, as I shall show in a moment, that the defence is wholly unsound and unsustainable, and I am fully satisfied that striking it out will obviate the necessity for a trial.

I turn first to the pleadings. The statement of claim by paras 3, 4 and 5 averred as follows:

3 In their edition of the magazine dated 18 June 1989, the defendant caused to be published at p 22 thereof an article containing libellous words referring to the plaintiff`s branch in Singapore. The following libellous words (in Chinese characters) appeared in the said article: ... The libellous words (as translated into English by a High Court interpreter) are as follows:

`Up to Thursday, a total of about US$75m was withdrawn, leaving the bank no alternative but to suspend business temporarily`.

The said words referred and can only be understood to refer to the plaintiffs.

4 The said words in asserting that the plaintiff had `no alternative but to suspend business temporarily` were malicious and false in that the plaintiffs had at no material time suspended its business temporarily or at all nor was it unable to meet the withdrawal requests of its customers.

5 The said words in their natural and ordinary meaning meant and were understood to mean:

(i) that the plaintiff and/or its Singapore branch after the withdrawal of US$75m from their Singapore branch were insolvent and/or temporarily insolvent;

(ii) the plaintiff had inadequate funds to meet the withdrawal requests of its customers;

(iii) the plaintiff were not bankers of high standing and creditworthiness as they were unable to meet withdrawal requests in excess of US$75m;

(iv) the plaintiff had failed to adequately protect and safeguard the interests of its customers by failing to maintain adequate liquidity reserves with its Singapore branch;

(v) the plaintiff did not have sufficient standing to obtain credit lines from other banks and hence had `no alternative` but to suspend business temporarily; and

(vi) the plaintiff was untrustworthy.

In response, the defendant in the defence pleaded in paras 2 to 6 as follows:

(2) Save that it is denied that the words complained of were libellous, paras 2 and 3 of the statement of claim are admitted.

(3) Save that it is denied that the words complained of were malicious, no admissions are made in respect of para 4 of the statement of claim.

(4) The defendant denies that the words complained of bore or were understood to bear any meaning defamatory of the plaintiff and accordingly paras 5 and 6 of the statement of claim are denied.

(5) The words complained of were published by the defendant innocently in relation to the plaintiff and an offer of amends under and for the purposes of s 7 of the Defamation Act (Cap 75) was formally made by the defendant by letter dated 28 July 1989 as soon as practicable after the defendant received notice that the words complained of might be defamatory of the plaintiff, and the said offer has not been withdrawn.

(6) Paragraph 7 of the statement of claim is denied. Before the filing and delivery of the statement of claim herein, in the 25 June 1989 issue of Yazhou Zhoukan at p 29 thereof, the plaintiff published the following words as translated from the Chinese language into English by a High Court interpreter.

Particulars

See Annexure A

The publication in Annexure A, as translated into English, in so far as material, said:

... there was a run on the Bank of

...