Goh Leng Kwang v Joachim Rosenberg and Others

• Jurisdiction: Singapore
• Judge: Khoo Oon Soo
• Judgment Date: 18 November 2010
• Neutral Citation: [2010] SGDC 406
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2458 of 2008
• Year: 2010
• Published date: 31 January 2011
• Hearing Date: 05 May 2010,03 May 2010,05 August 2010,04 May 2010,10 May 2010
• Plaintiff Counsel: Prakash P Mulani (M & A Law Corporation)
• Defendant Counsel: Ang Cheng Hock SC (Allen & Gledhill LLP)
• Citation: [2010] SGDC 406

District Judge Khoo Oon Soo: Background

At the material time, the Plaintiff was the General Manager of Human Resource & Corporate Affairs of Tan Chong & Sons (S) Pte Ltd (TCS), the director of Nissan Diesel Thailand Co. Pte Ltd (NDT) and the representative of Tan Chong International (TCI) and NDT. Both TCS and NDT were wholly owned subsidiaries of TCI.

The 1st Defendant was, at the material time, an employee and agent/representative of AB Volvo (2nd Defendant) and the agent/representative of Nissan Diesel Motor Co. Ltd (3rd Defendant). At the material time, the 1st Defendant was also the Presidents of Asia Truck Corporation (ATO) and President of Volvo (China) Investment Co. Ltd.

The Plaintiff sued the 1st Defendant for defaming him in a letter attached to an email sent on 5 November 2007 by the 1st Defendant through his secretary to the Plaintiff’s boss one Mr. Tan Eng Soon (Mr Tan) and various other parties.

The letter was published by the 1st Defendant against the background of business negotiations between the Plaintiff’s principals and the 1st Defendant’s principals, the 2nd and 3rd Defendants, who the Plaintiff claimed were vicariously liable for the 1st Defendant’s libel.

In December 2002, TCI had purchased NDT. An agreement was then signed between NDT and 3rd Defendant Nissan Diesel Motor Co. Ltd (NDM) to grant NDT distributorship and assembly rights in respect of Nissan trucks in Thailand until 2010 and beyond.

Around March 2007, NDM became 2nd Defendant’s subsidiary and a meeting was arranged on 20 July 2007 to discuss matters relating to TCI, NDT, 2nd and 3rd Defendants. The Plaintiff and Mr. Joseph Y.L Ong (“Mr. Ong’) were appointed by TCI and NDT to be representatives in negotiations with the 2nd and 3rd Defendants.

On 26 September 2007, the Plaintiff averred that the 1st Defendant wanted him to accept his proposal which was not beneficial to NDT. As the Plaintiff was not agreeable to the proposal, he was viewed as an impediment by the 1st Defendant to achieving the business objective.

A meeting was then arranged on 22 October 2007 for the higher management members.

However, TCI requested the 2nd Defendant to reschedule this meeting to a later date. Subsequent to the re-scheduling of the 22 October meeting, the 1st Defendant sent a letter dated 5 November 2007, as an email attachment to Mr. Tan via his secretary to Mr. Tan’s secretary with 6 other recipients being copied into the email.

Although the Plaintiff was not copied in the email, Mr. Tan’s secretary forwarded the email to him as well as Mr. Tan.

Shortly after sending out the email, 1st Defendant secretary sent out another email to the recipients stating that she would like to recall the message.

The letter that the 1st Defendant published or caused to be published to the recipients contained the following words alleged to be defamatory of the Plaintiff:

“It was highly unfortunate that TCI with less than one hours notice cancelled the meeting scheduled for October 22, 2007 with amongst others AB Volvo’s deputy CEO Mr. Jorma Halonen and myself. I was cordially looking forward to discuss with you in person, not at least as my colleague from Japan who have met you tell me you are a man of reason. Moreover, you are also the largest individual owner of the TCI group, implying that any major decision on its future direction needs to pass your approvalwith all the relevant decision material presented in an objective manner I assume. Since you and I share an entrepreneurial background (yours more extensive than mine), we both know that at the end of the day, the largest owner is talking about his/her own money. This is different from being a manager for other shareholder and as such, I feel it is only fair towards you, as well as my shareholders of course, that I try to address you personallyin my final attempt to break out of the vicious circle created between our two companies. The predominant reason for this attempt is simply thatthe path out two companies are “progressing along at the moment is not the best for either of us – and I at least feel there is a better option available for both.

I do not know to what extent you feel that Mr. Ong and/or Mr. Goh have kept you objectively updated after your delegation of this matter to them, but lots of communication – in some cases quite emotional – have taken place over the past months . The below bullet points, though I believe are undisputed facts extracted from these various discussion even in the eyes of some of your managers, which I am assuming your may want to validate it with. I ask you please, however, to keep an open mind when reviewing with them and not to be distracted by too much emotion that may occur in your vicinity.

………

I have since July 2007 together with various AB Volvo colleagues, been engaged in dialogue with parts of your management, While communication during the two in-person meetings we have had on July 20 and September 26 respectively have been rather productive, the nature of the communicate after these meetings has been much less so.

………

Mr Tan, while unfortunate, it is nevertheless clear that this situation will not be improved without your personal involvement. If it is not resolved in a better way than the current path, it will be unfortunate as I will under those circumstances feel forced to finalize the steps required, some of which are already initiated, to safeguard AB Volvo’s bottom-line in a way which is not optimal for either of our companies.

………

Since time is of essence when you are losing 10%-20% on the bottom line, something I must openly admit that I do not feel at all has been appreciated by parts of your management to date, and particularly since the dialogue over the past five months has not at all taken us where we wanted, please understand my desire to receive your reply within a few days on whether you will agree to a more detailed invitation for a one-on-one meeting in the very near future.”

(emphasis added by Plaintiff)

Issues

The issues in dispute were as follows: Whether the offending words bore or were understood to bear or were capable of bearing the alleged defamatory meanings pleaded by the Plaintiff in their natural and ordinary meaning and/or by way of innuendo? If the offending words bore a defamatory meaning, was the letter published on an occasion of qualified privilege? In relation to the defence of qualified privilege, whether the 1st Defendant was actuated by malice in publishing the Letter? Whether the publication to the two secretaries was incidental and made in the reasonable and/or necessary in order to bring the information contained in the letter to the notice of the recipients? If the 1st Defendant is found liable, whether the 2nd and 3rd Defendant are vicariously liable for the 1st Defendant’s defamatory letter?

Plaintiff’s case The defamatory meaning of the Words

The Plaintiff claimed that the words in the letter bore the defamatory meaning in their natural and ordinary meaning, as well as by way of innuendo.

In order to convince Mr. Tan to meet the 1st Defendant and not leave the negotiation with Mr. Tan’s management, the 1st Defendant became critical of the conduct of the Plaintiff and Mr. Ong.

Thus, the 1st Defendant began the letter by stating that he had been looking forward to meeting Mr. Tan as he had been told by his Japanese colleagues that Mr. Tan was ‘a man of reason’ and also because Mr. Tan was the largest shareholder or individual owner of the TCI group. This meant that he was the person who could approve any major decision on the basis of ‘all relevant material presented in an objective manner’.

The 1st Defendant then proceeded to point out that Mr. Tan’s considerations would be different to that of his managers as Mr. Tan was talking about money as opposed to someone else’s money. As such ‘it is only fair to Mr. Tan’ that the predominant reason to address him personally was to break out the ‘vicious circle’ created between TCI and Volvo which path was not good for TCI and Volvo.

The 1st Defendant then sought to question Mr. Tan on how confident he was that the Plaintiff and Mr. Ong had kept him ‘objectively updated’ after he had delegated this matter to them as lots of communication – some very emotional – had taken place over the past months. He also encouraged Mr. Tan not to be swayed by ‘emotions in vicinity’ should he check these facts with some of his ‘managers’ i.e. the Plaintiff and Mr. Ong.

The 1st Defendant commented that his communication with Mr. Tan’s management i.e. Mr. Ong and the Plaintiff have been unproductive after the last meeting on 26 September 2007 and that situation would not improve without Mr. Tan’s involvement.

Mr. Tan’s management team was also complained by the 1st Defendant as being tardy in reverting back to him on how TCI would like to proceed on the commercial side (the proposals on NDT business) as well as the manufacturing side (plant issue).

It was clear from reading the letter as a whole that the 1st Defendant raised doubts on Mr. Tan’s continued confidence in his management to handle the negotiations without his personal involvement.

There was no reason for Mr. Tan to meet Mr Rosenberg if Mr Tan retained full confidence in his management to manage the negotiations and safeguard Mr Tan’s and TCI’s interests.

From the above, it was understood to mean that: the Plaintiff was of questionable integrity as he might have misrepresented or not objectively represented the true facts relating to the negotiations with the 1st Defendant to his management at TCI and/or Mr. Tan; the Plaintiff had not acted in the best interest of TCI and/or Mr. Tan during their course of negotiations; the Plaintiff allowed his emotion to interfere with or compromised his duty to act in the best interests of TCI and/or Mr. Tan; the Plaintiff could not be trusted and/or lacked the...