Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 21 November 2011
• Neutral Citation: [2011] SGCA 63
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal Nos 210 and 213 of 2010
• Year: 2011
• Published date: 02 December 2011
• Hearing Date: 14 April 2011
• Plaintiff Counsel: Tan Chee Meng, SC, Chang Man Phing and Alfred Lim (WongPartnership LLP)
• Defendant Counsel: Hri Kumar Nair, SC and Melissa Liew (Drew & Napier LLC)
• Subject Matter: Tort,Defamation
• Citation: [2011] SGCA 63

Chao Hick Tin JA (delivering the judgment of the court): Introduction

Before us are two related appeals, an appeal and a cross-appeal, against the decision of the High Court judge ("the Judge") given in a defamation suit (Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie [2010] SGHC 324 ("the Judgment")) initiated by four members (the “Plaintiffs”) of the 2007/2008 management committee (“the Previous MC”) of the Singapore Swimming Club (the “Club”) against the President of the 2008/2009 management committee of the Club (“the Current MC”).

The alleged defamatory statements were published in the minutes of meetings of the Current MC held on 29 October 2008 (the “29 October 2008 Meeting”) and on 26 November 2008 (the “26 November 2008 Meeting”) respectively: [The “First Statement” (at 29 October 2008 Meeting)] President suggested that MC should correct the misrepresentation of facts made by the previous MC to influence the ratification of the expenditure at the last AGM. [The “Second Statement” (at 26 November 2008 Meeting)] (c) From the foregoing, President summarized the Treasurer’s findings as follows: • That the Club did not need a new water system to rectify the breakdown of the then existing filtration system which led to the shutdown of the competition pool. • After the installation of the new water system it was found that the filtration pumps needed to be replaced as the backwash water was still dirty. When the filtration pumps were changed, they worked perfectly and the water was clear. • The Club had purchased the new water system without budget approval. • Therefore it appeared that the justifiable emergency spending was to replace the filtration pumps at $42K and that would rectify the pool water in the 2 pools and Jacuzzis. The new water system at $168K was a ‘nice to have’ feature and the capital expenditure spent to install the system without budget approval was unwarranted. • It 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. The new water system was only an add-on system as the current filtration was still the same as before and there was still a need to replace the pumps. Where the First Statement and the Second Statement are referred to collectively in this judgment, they will be referred to as the “First and Second Statements”.

On 29 October 2010, the Judge dismissed the claim with costs, after finding that the natural and ordinary meaning of the words complained of was defamatory but that the Defendant had justified the gist of the defamatory sting. The Plaintiffs have in CA No 210 of 2010 (“CA210/2010”) appealed against the Judge’s finding on justification and her order on costs, while the Defendant has in CA No 213 of 2010 (“CA213/2010”) appealed against the Judge’s finding that the words complained of were defamatory.

Background facts

The Club was formed in February 1894. The general administration of the Club is under the charge of a general manager who reports to the management committee (“the MC”). At the relevant time (ie, in November 2007), the general manager was one Mr Richard Phua (“the Former GM”). The management committee consists of members who have been elected to various posts by the Club’s members at an Annual General Meeting (“AGM”), and they hold office for a period of one year from one AGM to the next.

The Plaintiffs Chan Cheng Wah Bernard @ Alif Abdullah (“Bernard Chan”), Tan Hock Lay Robin (“Robin Tan”), Chong Tjee Teng Nicholas (“Nicholas Chong”) and Ho Bok Kee (“Michael Ho”) – were members of the Previous MC who held office from May 2007 to May 2008. During this period, Bernard Chan was the President of the Club, Robin Tan the Vice-President, Nicholas Chong the Honorary Treasurer, and Michael Ho the Facilities Chairman.

At the elections held during the AGM in May 2008 (“the 2008 AGM”), the Defendant – Mr Freddie Koh Sin Chong – was elected as President of the Current MC. Three members of the Previous MC – Mr Gary Oon, Mr Mike Chia and Ms Theresa Kay – were re-elected, while several other new persons – including Tan Wee Tin, the Honorary Treasurer (“the Treasurer”) – were elected into the Current MC. The Defendant was re-elected as President for a further one year term at the AGM held in May 2009 (“the 2009 AGM”), and continued to hold this position throughout the trial.

The dispute arose out of events which occurred in the Club between November 2007 and the end of November 2008. It revolved around the Club’s facilities, which include two Olympic-sized swimming pools, namely a recreational pool (“the Recreational Pool”) and a pool used mainly for training and competitions (“the Competition Pool”), and two Jacuzzis (“the Jacuzzis”).

Following complaints from members, the Competition Pool was closed on 10 November 2007 due to contamination. In the same evening, a special meeting of the Previous MC (the “10 November 2007 Meeting”) was held to discuss the issue of the contamination. A company called The Water Consultant Pte Ltd (“TWC”) gave a presentation on a water system called the Natural Water System (“NWS”). After receiving representations that the cost of installation of the NWS would be lower, both in the short term and in the long run, as compared to the conventional method of sandblasting the filtration tanks, the Previous MC gave its in-principle approval for a package deal offered by TWC (“the TWC Package”), which included the provision of the NWS at both pools, the installation of another system – the mineral water system (“the MWS”) – at the Jacuzzis, and the installation of on-demand sanitizer controllers (“the Auto-Dozers”) at both pools. The break-down of the TWC Package is as follows:

(a)	MWS for the Jacuzzis	$18,800
(b)	NWS for the Competition Pool	$51,800
(c)	Pipe work modifications and waterproof housing for the Competition Pool	$13,000
(d)	NWS for the Recreational Pool	$51,800
(e)	Pipe work modifications and waterproof housing for the Recreational Pool	$14,000
(f)	Auto-Dozers plus stirrers plus tanks at $9,700 per pool	$19,400
		$168,800

We should, at this juncture point out that cl 2.6.1 of the Club’s Financial Operating Manual (“the FOM”) prohibited any expenditure for goods or services for which no provision had been made in the Club’s annual budget. However, the sitting management committee may spend on unbudgeted items by calling an Extraordinary General Meeting (“EOGM”) to request a supplementary budget (cl 2.7.1), or approving the expenditure on the basis of it being an “emergency” and subsequently seeking ratification of the expenditure at the next AGM (cl 2.7.2). The Previous MC opted for the latter course, and directed the Former GM to ensure that due diligence was carried out and to negotiate for the best possible terms. After deliberating over two further MC meetings on 27 November 2007 and 6 December 2007, the Previous MC gave its approval to execute the contract with TWC.

On 25 May 2008, the expenditure on the TWC Package was put up for ratification at the 2008 AGM, which was attended by 2,159 members and lasted several hours. This matter turned out to be highly contentious and eventually a motion for the formation of a Special Ad-Hoc Audit Committee (“the Audit Committee”), consisting of four Club’s members appointed by the Current MC to review the project, was eventually carried with 210 members supporting it. On 8 August 2008, 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.

The Former GM was dismissed in the final week of August 2008, in relation to some other irregularities unconnected to the Club’s expenditure on the TWC package. Soon after his departure, a file titled “Water Consultants” (“the File”) was discovered in his office. The Treasurer 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. The Current MC asked the Audit Committee to consider these new documents, while the Treasurer was tasked to investigate further.

The Treasurer gave updates on his findings at the 29 October 2008 Meeting and the 26 November 2008 Meeting. In the course of the former meeting, the Defendant made the remarks that were later reported in the minutes of the meeting (ie, the First Statement). 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 the Second Statement. 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, on 21 November 2008, the Audit Committee, having considered the new documents, decided that there was no need to amend its Audit Report as the new information pertained to technical and financial issues which did not fall within its purview. Nevertheless, the Current MC decided to request the Treasurer to prepare an addendum to the Audit Report (“the Addendum”), which was to be included on the agenda of the 2009 AGM. In the event, the expenditure was not ratified; instead, another resolution was passed to censure the Previous MC for incurring the expenditure and bar its members from holding office in the Club for the next five years. However, the latter resolution was declared, in a separate action, Originating Summons No 826 of 2009, to be void due to procedural irregularities.

Decision below

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...