Chan Cheng Wah Bernard v Koh Sin Chong Freddie

• Jurisdiction: Singapore
• Judgment Date: 21 November 2011
• Date: 21 November 2011
• Docket Number: Civil Appeal Nos 210 and 213 of 2010
• Court: Court of Appeal (Singapore)

Chan Cheng Wah Bernard and others

Plaintiff

and

Koh Sin Chong Freddie and another appeal

Defendant

[2011] SGCA 63

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

VK Rajah JA

Civil Appeal Nos 210 and 213 of 2010

Court of Appeal

Tort—Defamation—Defamatory statements—Allegedly defamatory statements contained in meeting minutes posted on club's notice board—Whether defamatory meaning pleaded by plaintiff capable of being conveyed by statements

Tort—Defamation—Justification—Sting of charge being imputation of plaintiff's dishonest conduct—Whether sting of charge was substantially true

Tort—Defamation—Qualified privilege—Statements made by management committee and pertained to club's affairs—Whether statements made on occasion of qualified privilege—Whether qualified privilege defeated by malice

Following from the closure of the Competition Pool of the Singapore Swimming Club (‘the Club’), the management committee at the time (‘the Previous MC’) approved the purchase of a package (‘the TWC Package’), which included the provision of a water system called the Natural Water System (‘NWS’) at the Competition Pool as well as the Recreational Pool, the installation of the mineral water system (‘MWS’) at the Jacuzzis, and the installation of on-demand sanitizer controllers (‘the Auto-Dozers’) at both pools. This was done by applying a provision in the Club's Financial Operating Manual that allowed the sitting management committee to approve an unbudgeted expenditure on the basis of it being an ‘emergency’ and subsequently seek ratification of the expenditure at the next annual general meeting (‘AGM’).

At the 2008 AGM, a new management committee (‘the Current MC’) was elected. When the expenditure on the TWC Package was put up for ratification, a motion for the formation of a Special Ad-Hoc Audit Committee (‘the Audit Committee’) was carried. Later, the Audit Committee submitted its Audit Report to the Current MC, after finding that the expenditure was of an emergency nature and that there was no breach of any Club procedures.

Subsequently, the Treasurer of the Current MC found several documents which were not disclosed to the Audit Committee and contained information inconsistent with the Former MC's representations at the 2008 AGM. After further investigations, the Treasurer gave updates on his findings at the 29 October 2008 MC Meeting and the 26 November 2008 MC Meeting. In the course of the former meeting, the Defendant, who was the President of the Current MC, made allegedly defamatory remarks (‘the First Statement’), later reported in the minutes of the meeting, which suggested a ‘misrepresentation of facts made by the previous MC to influence the ratification of the expenditure at the last AGM’. At the later meeting, the Defendant gave a summary of the findings of the Treasurer that were paraphrased in the minutes of the meeting, part of which constituted another set of allegedly defamatory remarks (‘the Second Statement’). The Second Statement stated, inter alia, that ‘ [i]t could be a case of misrepresentation of facts to the AGM to get ratification for a capital expenditure for a water system that could not be justified under the urgent/emergency reason’. Both sets of minutes were posted on the Club's notice board in accordance with the Club's usual practice. In between the two meetings, the Audit Committee, having considered the new documents, decided that there was no need to amend its Audit Report. Four members of the Previous MC (‘the Plaintiffs’) then filed the present defamation claim against the Defendant.

The High Court judge (‘the Judge’) held that the natural and ordinary meaning of the First and Second Statements was defamatory, as they meant that the Plaintiffs had intentionally misrepresented to the Club's members that it was necessary to replace the water filtration system on the basis that it was a matter of urgency and/or an emergency, justifying the expenditure and ratification by the AGM of the same. However, the Judge found that the Defendant was not liable to the Plaintiffs for defamation, as the Defendant had justified the gist of the defamatory sting. This was based upon the finding that the Plaintiffs made representations to the Club's members despite knowing that they were untrue, in order to obtain ratification of the expenditure. These included representations that the whole of the expenditure was required to address an emergency, that after the installation of the NWS, the swimming pools did not require the addition of chemicals, that the NWS provided mineral water to the pools; and that third party endorsements had been obtained in respect of the NWS.

Dissatisfied with the decision of the Judge, the Plaintiffs appealed and the Defendant cross-appealed. Three issues were raised on appeal, namely: (a)whether the Judge erred in finding that the natural and ordinary meaning of the First and Second Statements was that the Plaintiffs had intentionally misrepresented to the Club members, and was thus defamatory; (b)if the Statements were indeed defamatory, whether the Judge erred in finding that the Defendant had justified the gist of the defamatory sting; and (c)if the defence of justification was not made out, whether the Statements were made on an occasion of qualified privilege and, if so, whether the defence was defeated by malice.

Held, allowing the appeal and dismissing the cross-appeal:

(1) The class of reader was relevant in determining the scope of possible meanings the publication might bear. Here, the ‘ordinary reasonable person’ would be the ordinary reasonable and interested Club member possessing general knowledge of the affairs of the Club: at [19].

(2) Such a member would likely have attended the Club's AGMs, or have at least acquainted himself with the pertinent issues that were to be decided at these meetings, and would also have been generally aware of information disseminated on the Club's notice boards. He would have been aware of the background facts of the dispute as it was widely-publicised and hotly-debated within the Club for at least half a year, thus the appropriate meaning to be attributed to the Statements should rightfully be considered in the context of those circumstances: at [26] and [27].

(3) The First Statement was made at a meeting where suspicions of wrongdoing had clearly been cast on the part of the Previous MC in respect of the TWC Package. Looking at the state of play at that point, the Defendant was obviously seeking to find fault with the Previous MC with regard to the purchase of the NWS: at [30] and [35].

(4) With respect to the Second Statement, the Defendant was not merely summarising the Treasurer's presentation; he was in fact giving his own take as to the Treasurer's findings. Further, the Defendant would have been aware that the minutes of the meeting would be published on the Club's notice board and thus be read by Club members generally, and not just by those who had attended the MC meeting: at [37] and [39].

(5) The mere use of the tentative phrase ‘could be’ would not be sufficient to detract the reasonably interested member from construing the Second Statement according to its ordinary sense, bearing in mind the fact that this was the second time that the Defendant had accused the Previous MC of misrepresenting to Club members for the purposes of obtaining ratification of the expenditure, and other references to the Previous MC's wrongdoing within the same minutes: at [41].

(6) For the defence of justification, the defendant had only to prove the ‘sting’ of the charge. Here, the sting of the charge was essentially that the Previous MC had deliberately misrepresented the circumstances relating to the expenditure on the TWC Package with the aim of deceiving the Club members into ratifying the expenditure: at [44] and [45].

(7) A distinction had to be drawn between innocent/negligent misrepresentation on the one hand and fraudulent misrepresentation on the other. There was insufficient evidence to show that the erroneous statements were made deliberately with a view to deceiving the AGM: at [50].

(8) When a decision of the management committee of a club was in dispute, the court should not embark upon a minute scrutiny of the correctness of the decision, but should only consider whether the decision was intra vires and bona fide. In the absence of a definition of ‘emergency’ in the Financial Operating Manual of the Club, the court should not too readily substitute its opinion as to what constituted an ‘emergency’ for that of the Previous MC, unless the latter was clearly unreasonable: at [51], [56] and [57].

(9) With respect to the issue of good faith, it had to be borne in mind the fact that the Previous MC (and indeed every MC) was largely made up of layperson volunteers who met once or twice a month to oversee the management of the Club and who would rely substantially on the full-time management staff for the day-to-day administration of operational and technical matters: at [61].

(10) Given that the MC of the Club had a duty to safeguard the interests of the Club and thus a corresponding duty to inform the Club's members of any misrepresentations made to them in order to influence their ratification of an expenditure, it was clear that the First and Second Statements were made on an occasion of qualified privilege: at [88].

(11) Malice might be proven in two ways - the defendant's knowledge of falsity, recklessness, or lack of belief in the defamatory statement; and where the defendant had a genuine or honest belief in the truth of the defamatory statement, but his dominant motive was to injure the defendant or some other improper motive. Here, while there was some doubt over whether the Defendant had a genuine or honest belief in the truth of the First and Second Statements, it was clear that the Defendant's dominant motive for publishing the Statements was to...