Goh Yee Fong Peter v Cornelis Arnold Van Fenema (also known as Nol Van Fenema) and Others

• Jurisdiction: Singapore
• Judge: Mavis Chionh Sze Chyi
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] SGDC 182
• Court: District Court (Singapore)
• Published date: 10 August 2004
• Year: 2004
• Plaintiff Counsel: Mr Lee Teck Hai (Lee T.H. and Partners)
• Defendant Counsel: Mr Kirpal Singh (Kirpal and Associates)
• Citation: [2004] SGDC 182

30 July 2004 Judgment reserved.

District Judge Mavis Chionh

1 In the present case, the plaintiff Mr Peter Goh (‘Mr Goh’) sued all three defendants for defamation. The defendants applied to have his claim struck out as “disclosing no reasonable cause of action and/or being scandalous, frivolous or vexatious and/or tending to prejudice, embarrass or delay the fair trial of the action and/or [being] otherwise an abuse of the process of the Court”. On 24 May 2004, the deputy registrar allowed the defendants’ application and struck out Mr Goh’s claim while awarding costs to the defendants. Mr Goh appealed. I dismissed his appeal on 23 June 2004; and he now appeals against my decision.

The background

2 The background to this case is as follows.

The parties

3 The first defendant Mr Cornelis van Fenema, also known as Nol van Fenema (‘Mr van Fenema’) is the director and shareholder of both VFPR & Media Consultants Pte Ltd (‘VFPR’) and Clean Asia Media Pte Ltd (‘CAM’). The second defendant Mr Lionel Koh (‘Mr Koh’) and the third defendant Ms Irene Ng (‘Ms Ng’) are employed by CAM. CAM publishes a magazine called “Clean Asia”. Mr van Fenema is alleged by Mr Peter Goh to be the publisher and managing editor of “Clean Asia” magazine; Mr Koh is alleged to be the editor of the magazine; and Ms Ng is alleged to be the sales manager of the magazine. There is also a website known as www.Cleanasia.com, of which VFPR is said to be the registrant and Mr van Fenema, its “administrative contact”.

4 It is the defendants’ position that CAM is an associate company of VFPR’s; and that Mr Goh, who was first employed by VFPR in 1993, was also appointed CAM’s General Manager of Marketing. Mr Goh denies this and alleges that he only had a contract of employment with VFPR.

5 It is also the defendants’ position that in August 2001, Mr Goh was put in charge of a representative office which VFPR and CAM had established in Shanghai China. The office was known as “Clean China”. Mr Goh denies that he was ever employed by this representative office and asserts, instead, that he was merely asked to be its “Chief Representative” on a gratuitous basis.

The previous High Court suit

6 Prior to Mr Goh’s present suit, there was a civil suit brought against him in the High Court by the two companies VFPR and CAM. This was High Court Suit No. 369 of 2002. In the High Court Suit, the two companies alleged that Mr Goh had tendered his resignation in February 2002 and that certain terms as to his resignation had been agreed between them. VFPR and CAM claimed that Mr Goh breached these terms and his fiduciary duty to them by engaging in various activities aimed at diverting and/or siphoning business, funds, and trading opportunities away from the two companies. Mr Goh was alleged to have conspired with various staff in the Clean China office, especially one Sean Song (also known as ‘Song Zhe’), to set up a rival company known as Wings (Shanghai) Business Consultancy Co. (‘Wings’). It was to this rival company that he was alleged to have diverted VFPR’s and CAM’s business.

7 Mr Goh filed a defence in the High Court suit denying VFPR’s and CAM’s claims. In particular, he denied having conspired with anyone to injure VFPR and CAM. He also made a counterclaim against these two companies for outstanding salary and commission payments.

8 The High Court suit was settled via mediation on 14 October 2002. A Settlement Agreement - Mediation No. 788(884)-112 of 2002 – was drawn up and signed by Mr Goh, Mr van Fenema on behalf of VFPR and CAM, and their respective solicitors. The Settlement Agreement was stated to represent “full and final settlement of all issues in respect of” the High Court suit. A copy of the agreement is exhibited at pages 228 to 231 of Mr van Fenema’s affidavit of 8 March 2004 in the present suit.

The present DC suit

9 On 15 October 2003, Mr Goh filed the present defamation suit in the district courts, citing Mr van Fenema, Mr Lionel Koh and Ms Irene Ng as individual defendants. He claimed that they had defamed him by way of two offending articles.

The first allegedly defamatory article

10 The first related to an article published in the April/May 2002 issue of the “Clean Asia” magazine. Paragraphs 4 to 7 of the article were the main extracts containing the material complained of by Mr Goh. They read:

Para 4 Despite this injunction, Clean Asia Media has reason to believe that in early April he further colluded with the local staff of the Clean China Representative Office to move the entire office to another location in Shanghai without the consent or approval from the management of Clean Asia Media;

Para 5 The company, in which we have no equity, is operating under the name Wings (Shanghai) Business Consulting Co., Ltd and states that it is representing Clean China Expo and Clean China Magazine;

Para 6 According to its lawyers, the move to another office and operating under another company name than Clean China Representative Office, not only constitutes criminal breach of trust, but also criminal theft of property, including office equipment, computer hardware and software, and company documents;

Para 7 The lawyers have meanwhile advised to file police reports in Shanghai against the staff for theft of company properties.

11 Mr Goh charged that when read in conjunction with paragraphs 1 to 3 of the article, the above paragraphs “clearly linked and identified” him to the defamatory allegations contained therein. Paragraphs 1 to 3 read:

Para 1 Following the acrimonious departure of Mr Peter Goh Yee Fong from our company at the end of March, several unlawful actions have adversely affected the operations of the Clean China Representatives Office in Shanghai and the related organisation of the Clean China Expo in Beijing, scheduled for June.

Para 2 The management of Clean Asia Media Pte Ltd, which is the rightful owner of the brand names Clean China Expo and Clean China Magazine, has issued the following statement to clarify the situation.

Para 3 To safeguard the activities of its Clean China Representative Office, Clean Asia Media obtained an Interim Injunction from the Singapore Courts in March, instructing Mr Goh not to get involved in any Clean Asia or Clean China related activities, or to hold himself out as representing the Shanghai-based operations.

12 In addition to the allegation of publication in “Clean Asia” magazine, Mr Goh alleged that the above article was also made available on the website www.Cleanasia.com and further disseminated by the third defendant Ms Ng via e-mail to CAM’s customers.

The second allegedly defamatory article

13 The second allegedly defamatory article was a press release sent by the second defendant Mr Koh to a website known as www.thecleanzine.com “sometime around July 2003. Paragraph 1 of the press release referred to “the problems being caused to the Clean China magazine and the Clean China Expo in Beijing... by the acrimonious departure of Peter Goh Yee Fong from the exhibition’s owner Clean Asia Media Pte, and Mr Goh’s subsequent actions”. Paragraphs 2 to 8 of the press release referred to a ruling made by the “Shanghai No. 2 Intermediate People’s Court” in a case brought by Clean China against Wings and Song Zhe, for “unfair competition practices”: the court was said to have ruled that both Wings and Song “must cease unfair competition practices against Clean China”. Paragraphs 9 to 16 then reproduced the extracts from the first allegedly defamatory article (see above). The article ended with the statement that Clean Asia Media “would not accept any responsibility in case another company organised” the Clean China Expo; that the same applied to “any financial arrangements with such a company”; and that “(i)nview of the illegal and unlawful acts, Clean Asia closed the Representative Office in Shanghai and its directors awaited the decision of the judiciary”.

14 Again, it will be seen that Mr Goh was objecting to essentially the same allegations made in the first article.

The alleged natural and ordinary meaning of the words complained of

15 Mr Goh charged that the natural and ordinary meaning of the offending words in both articles was as follows:

(i) That he (Mr Goh) had “committed a criminal breach of trust and theft”;

(ii) That he had “committed a very serious criminal offence that warranted a police report to be made against [him] and [him] to be charged in court”;

(iii) That he was “a thief” who had “committed a criminal offence of theft of property, office equipment and computer”;

(iv) That he was “very dishonest and cannot be trusted”.

16 In consequence of the alleged defamation, according to Mr Goh, he had suffered “embarrassment, humiliation, anxiety and distress”. As a “renowned international exhibition and conference organiser” as well as an “expert” cleaning consultant “with an MBA to his credentials”, his personal and business reputation had been “seriously and maliciously injured and damaged”.

The application to strike out the claim

17 Although in their summons-in-chambers the defendants mentioned various grounds for striking out the claim, their submissions on appeal were focused on one main issue: namely, the submission that the present suit amounted to an abuse of the process of court because it was an attempt to re-litigate issues which could have and should have been addressed in the settlement of High Court Suit No. 369 of 2002.

18 Mr Goh’s response was that the parties were different: it was the two companies VFPR and CAM, which had been...