Benber Dayao Yu v Jacter Singh

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 26 April 2017
• Neutral Citation: [2017] SGHC 92
• Plaintiff Counsel: Earnest Lau and Joseph Tham (Chancery Law Corporation)
• Date: 26 April 2017
• Docket Number: Community Justice and Tribunals Appeal No 1 of 2016
• Hearing Date: 03 March 2017,11 May 2016
• Subject Matter: Protection from Harassment Act,Harassment,Tort
• Year: 2017
• Defendant Counsel: Ranjit Singh (Francis Khoo & Lim)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 92
• Published date: 03 May 2017

See Kee Oon J:

This was an appeal against the decision of the District Judge dismissing an application for a protection order under s 12 of the Protection from Harassment Act (No 14 of 2014) (“POHA”).¹ The District Judge’s grounds of decision are set out in his Notes of Evidence dated 29 February 2016 (“the GD”).²

Before the District Judge, the appellant sought a protection order in relation to a web page posted on the Internet (“the Web post”) by the respondent. The appellant also sought a protection order prohibiting the respondent from approaching him under any circumstances. In this appeal, the appellant focused his case on the District Judge’s findings in relation to the Web post and did not challenge the District Judge’s finding in relation to the alleged physical harassment.

After hearing the parties, I allowed the appeal and granted a protection order under s 12 of the POHA in favour of the appellant in relation to the Web post. I granted an order in terms of prayers 1 to 3 of the originating summons with the exception of prayer 1(c) which related to the protection order against the respondent approaching the appellant:³ 1. Jacter Singh whether in his personal capacity or trading as JS Athletics (Business Registration No. 5310554L) be prohibited from doing the following [acts] in relation to Benber Dayao Yu: a) Remove all publications relating to Benber Dayao Yu that is currently set out in the webpage at http://js-athletics.com/notice-of-termination. b) Desist from publishing further insulting or abusive communications about Benber Dayao Yu, including but not limited to publishing in any form whatsoever, the allegations set out in the webpage at http://js-athletics.com/notice-of-termination.

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2. No person shall publish or continue to publish the following offending communication(s): a) the allegations set out in the Webpage found at http://js-athletics.com/notice-of-termination. 3) That Jacter Singh shall pay [Benber Dayao Yu] the costs of this application.

I directed that the respondent remove the Web post within two weeks of my judgment and fixed costs for the appeal and the proceedings below at S$12,000, with reasonable disbursements in addition. I now set out the full grounds of my decision.

Background facts

The appellant was a former employee of the respondent, who ran a sports coaching company known as JS Athletics. JS Athletics was in the business of conducting sports training at schools and stadiums and selling sports accessories. The appellant worked for the respondent from 2008 to 2009. The parties disputed the circumstances under which the appellant left the employment of the respondent. The appellant claimed that he resigned while the respondent claimed that the appellant was summarily dismissed.

The Web post in question was posted on the respondent’s business website on 8 November 2009 after the appellant left the respondent’s employ. The respondent updated the Web post thereafter at various points. He did so after the hearing before the District Judge and pending the outcome of the present appeal, though not in wholly accurate terms, to record the District Judge’s order made in his favour and subsequent proceedings. Before the District Judge, the appellant took issue with the following allegations contained within the Web post: The appellant’s employment had been terminated by the respondent. The appellant had misrepresented to others that he was a Philippines national team coach and/or a Philippines national athlete. The appellant had a molest case against him in the Philippines and had molested the athletes he coached. The appellant’s training methods had caused injuries to the athletes that he coached.

On appeal, the aspects of the Web post which the appellant took objection to were those that referred to the appellant as an incompetent coach and a molester who molested the athletes he coached.

The basis for the respondent’s assertion that the appellant was a molester was an incident in the Philippines that occurred in April 2006 when a 15 year- old female athlete made a private complaint against the appellant for molesting her. It is undisputed that the complaint was dismissed for lack of probable cause by the Provincial Prosecutor in the Philippines and no further actions were taken against the appellant. The respondent was fully aware that the Philippines Provincial Prosecutor had dismissed the complaint.

Besides the Web post, the appellant claimed that the respondent had behaved in an insulting, abusive and harassing manner towards him during various encounters at the sports stadiums.

The appellant subsequently requested the respondent to remove the Web post but the respondent refused. Consequently, the appellant filed an application under DC/PHA 70060 of 2015 for a protection order pursuant to s 12 of the POHA seeking an order for the respondent to take down the Web post. The appellant also sought a protection order in relation to the alleged physical harassment.

Decision below

The hearing of DC/PHA 70060 of 2015 took place before the District Judge on 16 and 17 November 2015. Before the District Judge, the appellant contended that the Web Post contravened ss 3 and 4 of the POHA and that it was just and equitable to grant a protection order against the respondent.

The respondent’s contentions were as follows: The appellant could not avail himself of the remedy under s 12 of the POHA because the POHA was not intended to have retrospective application to the Web post which was made before the POHA came into effect. With regard to the Web post, the respondent contended that he was telling the truth and that his conduct was reasonable. With regard to the physical harassment, the respondent denied that the incidents of alleged harassment had occurred.

The District Judge found that the Web post had remained on the JS Athletics website after the POHA came into force and that the appellant could apply for a protection order on the Web post.⁴

With respect to the Web post, the District Judge found that the respondent had conducted himself reasonably and thus was able to avail himself of the defences in ss 3 and 4 of the POHA. This turned on the District Judge’s findings that the Web post contained either true statements or reasonable expressions of the respondent’s personal point of view. Specifically, the District Judge found that the respondent had made acceptable statements pertaining to: the reasons for his termination of the appellant’s employment in 2009; the false claims by the appellant to be a Philippines national coach and/or national athlete; the appellant’s 2006 molest case in the Philippines; and the appellant’s improper training methods causing injuries to his trainees.

In the premises, the District Judge did not think that it was just and equitable to issue a protection order. A summary of the District Judge’s findings is found at [114E]–[115A] and [128D]–[128E] of the GD:⁵

In summary, in relation to the allegations in the affidavit, the court’s decision is that it was reasonable for the [respondent] to say his viewpoint on his web post that the [appellant’s] employment at JS Athletics was terminated, the [appellant] was not a Philippines national coach or Philippines national athlete, the [appellant] had a molest case in Philippines and that the [appellant’s] training of young athletes was not proper.

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In conclusion, in our factual context, the choice of words by the [respondent] in the web post may appear harsh against the [appellant]. But the [respondent] had reasons for saying so, and the web post has not stopped the [appellant] from working as an athletics coach and growing his coaching business.

The appellant’s allegations of physical harassment were premised on various alleged incidents involving face-to-face confrontations between the appellant and respondent as set out in the appellant’s second affidavit. The District Judge found that the appellant had not proved that these incidents had occurred. He further found that the appellant had not shown that he was distressed to such a degree as to justify the grant of a protection order against the respondent.⁶

The District Judge awarded the respondent costs of S$8,000 before Goods and Services Tax with reasonable disbursements to be agreed or taxed. The appellant subsequently applied for and was granted leave to appeal to the High Court.⁷

The parties’ cases on appeal

The appellant raised four arguments on appeal, contending that the District Judge erred in: First, finding that the respondent did not contravene s 3(1) and s 4(1) of the POHA. Secondly, finding that the respondent had a defence of reasonable conduct under s 3(3) and s 4(3) of the POHA. Thirdly, finding that it was not just and equitable to grant a protection order under s 12 of the POHA. Fourthly, admitting affidavits that were inadmissible by law, in particular the affidavits filed by the respondent to prove that the appellant was a molester.

I noted that the appellant did not challenge the District Judge’s findings in relation to the alleged physical harassment.

In response, the respondent did not seriously dispute that the Web post contained statements which, objectively understood, were abusive or insulting. He relied on the two main defences which had been canvassed before the District Judge. The first was that the Web post pre-dated the enactment of the POHA and thus the legislation should not have retrospective application (“the retrospective POHA defence”).⁸ The second was that he had conducted himself reasonably in putting up the Web post (“the reasonable conduct defence”).⁹

My decision

Section 12 of the POHA provides that a victim of harassment under ss 3 to 7 of the POHA can apply for a protection order subject to certain conditions:

Protection order

12.—(1) Subject to subsection...