D v Kong Sim Guan

• Judge: S Rajendran J
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] SGHC 165
• Plaintiff Counsel: Tan Teng Muan and Ms Deanna Kwok (Mallal and Namazie)
• Published date: 29 October 2003
• Subject Matter: Whether medical practitioner motivated solely by need to defend his professional reputation in making statements,Whether statements to Complaints Committee of Singapore Medical Council protected by absolute privilege,Negligence,Defamation,Whether duty of care owed by medical practitioner to third persons who might be adversely affected by contents of practitioner's report,Civil Procedure,Rules of court,Tort,Complaint against father alleging sexual abuse of infant daugther,Duty of care,Absolute privilege,Whether appropriate for father to conduct legal proceedings on behalf of infant as next friend,Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 76 r 3(7)(c)(iii),Qualified privilege
• Year: 2003
• Defendant Counsel: Dr Myint Soe and Deepak Raja (MyintSoe Mohamed Yang and Selvaraj)
• Citation: [2003] SGHC 165
• Court: High Court (Singapore)

1 This is a consolidated hearing of two suits: Suit 150/2002 was a claim by D on his own behalf and as next friend of his seven-and-a-half-year-old daughter (“the child”) against the defendant Dr Kong Sim Guan (“Dr Kong”) for alleged negligence in the psychiatric assessment of the child; Suit 204/2002 was a claim by D against Dr Kong for alleged defamation.

Suit 150/2002 (Negligence): a preliminary issue

2 The negligence alleged against Dr Kong in the Statement of Claim was as follows:

…

5. The 1st Plaintiff [child] was referred to the Defendant [Dr Kong] for an assessment following a police report by her mother that the 1st Plaintiff may have been sexually abused by the 2nd Plaintiff [D].

6. After negligently assessing the 1st Plaintiff and her mother, the Defendant negligently rendered a written opinion dated 25 July 2000 … concluding that the 1st Plaintiff had been sexually abused by the 2nd Plaintiff.

The complaint was that the father (D) had sexually abused the child. Whether this complaint was true or not remained an open question. It seemed therefore rather inappropriate for the alleged wrongdoer (D) to be suing Dr Kong on behalf of the alleged victim (the child).

3 The Rules of Court (“the Rules”) recognise the need for caution before a person is allowed to conduct legal proceedings on behalf of an infant as next friend. Order 76 r 3(7)(c)(iii) specifically prohibits any person from so doing unless the solicitor acting in the matter files Form 190, prescribed under the Rules, certifying that the next friend has “no interest in the cause or matter in question adverse to the person under disability”. No such certificate was filed when D, in February 2002, initiated these proceedings. It was filed only when

Dr Kong moved to have the claim on behalf of the child struck out for lack of compliance of O 76. The certificate filed was signed by Mr Tan Teng Muan (“Mr Tan”), counsel for D in these proceedings.

4 Despite that certification, I had concerns about the propriety of allowing D to proceed with this action in the name of the child: it seemed to me, on a perusal of the pleadings, that there was an obvious conflict of interest between D and the child and that it would be inappropriate to allow D to continue the action on behalf of the child.

5 I voiced these concerns to Mr Tan and to Dr Myint Soe (who appeared for Dr Kong). Mr Tan explained that he had issued the certificate because his client (D) had denied any improper conduct with the child. I reminded Mr Tan that in filing such a certificate he was acting as an officer of the court and not in the partisan interests of his client: the highest professional standards would therefore be expected. I told Mr Tan that a mere denial by D of improper conduct would not detract from the fact that there was a conflict. Mr Tan, on hearing these views, requested that the hearing be adjourned to the next day to enable him to take instructions from his client. I granted the request.

6 The next day, Mr Tan applied for leave to withdraw the action instituted by D on behalf of the child. I granted the application but reserved for further consideration the question of costs occasioned by the discontinuance in order to consider whether I should – under O 59 r 8 of the Rules – require Mr Tan to bear the costs of the withdrawal personally. The trial thereafter proceeded with D as the only plaintiff.

7 In the final submissions at the end of the hearing, Mr Tan stated that in giving the certificate he had relied not merely on D’s word but on the fact that the French courts had ultimately granted joint custody to D and his former wife. Mr Tan said that he inferred from this that the French courts had found no merit in the allegations of child sexual abuse. Mr Tan also pointed out that Dr Kong had applied to strike out the action instituted by D on behalf of the child as an abuse of process. The assistant registrar dismissed that application and that decision was upheld on appeal. The issue of conflict, Mr Tan pointed out, was relevant to the application to strike. Mr Tan pointed out that when this court raised the question of the propriety of the O 76 certificate that he had issued – a question not formulated in such clear terms at the hearing of the strike application – he immediately realised the problem and advised his client to withdraw that action.

8 I was satisfied with the explanation given by Mr Tan and ordered that the costs occasioned by the discontinuance of the action on behalf of the child be borne by D.

The factual background

9 D and his wife, E, were French citizens. The couple first met at a nudist beach. In the words of Mr Tan, they practice naturism. They have only one child – a daughter (the child) – born in France in 1994.

10 D is a lawyer. E is a medical doctor. In 1998, D came to Singapore to take up a posting as an executive in the Singapore branch of a French bank. His family accompanied him. In Singapore, E did some voluntary work at a hospital and after some months secured full-time employment in the clinical research section of that hospital. Sometime in 1999, the child started attending a playschool.

11 According to D, his matrimonial relationship with E – which was already under strain in France – took a turn for the worse in Singapore. It would appear that differences between them arose because E suspected that D, who had been a homosexual prior to their marriage, was returning to his homosexual ways. D on his part suspected that E was having an extra-marital affair.

12 On 19 May 2000, E in a complaint to the Family Court alleged that D had physically assaulted her and obtained a personal protection order for herself and the child. On 7 June 2000, D applied for and obtained a personal protection order as against E. On 9 June 2000, E together with the child left the matrimonial home. On 13 June 2000 (as will be elaborated upon below), E learnt that the child had told her teachers about D stroking her vagina and allowing her to handle his penis. She (E) made a police report on the same day.

13 On 14 June 2000, E applied to the Family Court in Singapore for custody, care and control of the child and maintenance for the child. Also on 14 June 2000, D commenced proceedings in the French courts for divorce. On 15 June 2000, D cross-applied to the Family Court in Singapore for interim custody, care and control of the child pending the outcome of the proceedings in France. On 6 August 2000, E and the child left Singapore for good.

The child at playschool

14 The children at the playschool are encouraged to have a nap during their lunch break. Ms F, a teacher at the playschool, observed that the child had the habit of putting her hand on her panties and rubbing herself. She conveyed these observations to Mrs G, the principal of the playschool. Mrs G too noted similar behaviour. Mrs G told the court that she also saw the child hugging a bolster in a rocking motion and rubbing herself against a mattress.

15 In February 2000, after returning from a holiday in Australia with her father, the child told her classmates and Ms F that she and D had stayed at a place where people walked about naked, ate naked, slept naked and did everything naked. She also stated that she slept naked with D and that D allowed her to touch his penis but had asked her “not to squeeze too hard as you will hurt it”. Ms F reported what the child had said to Mrs G.

16 Sometime thereafter when Ms F saw the child rubbing her vagina, Ms F asked the child why she was doing that. The child told Ms F that her father does it for her at night so that she can sleep. Ms F asked the child to describe how her father did it. The child demonstrated by touching Ms F’s arms, thigh and crotch.

17 During lunch break on another occasion, Ms F again asked the child why she liked to rub herself before she slept. The child replied that it made her feel good. The child also said that she would go to her father’s bed at home and she needed her father to rub her to get to sleep. She demonstrated what he did by stroking Ms F’s back, thigh and crotch.

18 Ms F reported this conversation to Mrs G who in turn informed Mrs H, a director of the playschool. On Mrs H’s suggestion, Mrs G tried to find out from the child what her father was doing to her. Mrs G testified that the child was initially hesitant to respond saying that it was a “secret” between her and her father but later told her that he touched her so that she can sleep and said words to the effect that it was so nice that she felt like flying and demonstrated that feeling by making flying movements with her outstretched arms.

19 The account given in court by Ms F and Mrs G as to what the child had told them was not challenged.

The police/MCDS reports

20 At about 11am on 13 June 2000, Mrs G received a telephone call from E. Apparently E had, that morning, heard from Mrs H about what the child had told her teachers and wanted more information from Mrs G. Mrs G briefly told E what she had seen and heard from the child and from Ms F. Mrs G testified that E appeared surprised and upset and within the hour turned up at Mrs G’s office and suggested that they immediately make a police report. Mrs G agreed and the two set off to the Tanglin Police Station.

21 At the police station, Mrs G wrote out her report and was about to sign it when she received a phone call from Mrs H that the school should not make a report but should instead report the matter to the Ministry of Community Development and Sports (“MCDS”). Mrs G therefore did not sign the report and returned to the playschool.

22 E remained at the police station and made the police report. That report was produced in court as an agreed document. It read:

I am the mother of [the child], a girl of 5½ years who is studying in [playschool].

On 13/6/00, in a teleconversation with her teacher [Mrs G], she informed me that the child told her that:

1. [D], my husband, had masturbated the child.

2. [D] also...