Sin Heak Hin Pte Ltd and Another v Yuasa Battery Singapore Co Pte Ltd

JurisdictionSingapore
JudgeJudith Prakash J
Judgment Date30 August 1995
Neutral Citation[1995] SGHC 208
Docket NumberSuit No 67 of 1992
Date30 August 1995
Year1995
Published date19 September 2003
Plaintiff CounselJames Ponniah and Eddie Lee (CP Lee & Co)
Citation[1995] SGHC 208
Defendant CounselTok Boon Leong (RCH Lim & Co)
CourtHigh Court (Singapore)
Subject MatterSale by plaintiffs of 'Yuasa' batteries from source in China,Elements of tort,Slander of goods,Justification,Whether aggravated damages warranted by plea of justification by defendants,Defendant the authorized manufacturer in Singapore under licence with Yuasa Japan,Qualified privilege,Whether exemplary damages warranted,Libel,Parallel import of 'Yuasa' batteries from source in China,Parallel imports,Defamation,Whether constituting passing off where the imported goods were made under a limited licence agreement which forbade the export of such goods,Whether made out,Circular issued to prevent competition,Whether allegation that plaintiffs' batteries were 'imitations' and 'unauthorized' justified,Issue of warning circular to dealers alleging plaintiffs' batteries were imitations,Whether there was common interest between defendant and dealers giving rise to qualified privilege,Passing off,Whether actuated by malice,Whether defence could succeed where there was malicious intent,Damages,Tort
Background

Cur Adv Vult

This action for defamation and the counterclaim on the basis of an alleged passing off both arise out of Singapore`s competitive market in respect of automotive batteries. All the parties in the case are active players in that market.

Each of the plaintiffs is a company incorporated in Singapore.
The plaintiffs share a common chairman and director (one Mr Ong Choon Lin), have the same business address and are in the same business: they deal in automotive batteries, tyres and other motor vehicle accessories. The first plaintiff has been in business since August 1976 and the second plaintiff since May 1985.

The defendant company was incorporated in Singapore in 1971 as a subsidiary of Yuasa Battery Co Ltd of Japan which is now known as Yuasa Corp (Yuasa Japan).
Since its establishment, the defendant has carried on business as a manufacturer and supplier of automotive batteries for vehicles such as cars, buses and cranes. These batteries are sold in Singapore and abroad under a get-up bearing the names `Yuasa Pafecta` by virtue of a licence from Yuasa Japan which provides technical assistance to the defendant in the manufacture of the batteries.

In April 1990, Mr Ong Choon Lin attended a trade fair in Guangzhou, China.
There he saw a stall at which automotive batteries bearing the name `Yuasa` were displayed. Mr Ong made enquiries and discovered that the batteries had been manufactured by an organization called Xinjiang Comprehensive Electric Motor Plant (Xinjiang Electric) which had a factory manufacturing batteries in Xinjiang Province, China. He was also shown a catalogue of Xinjiang Electric`s products which indicated that its factory had been the only one assigned to manufacture batteries with the Yuasa trade mark. He was told that Xinjiang Electric had a contract with Yuasa Japan under which it had been licensed to manufacture Yuasa batteries and that it used Yuasa Japan`s technical know-how.

On 26 April 1990, the second plaintiff entered into a contract with China National Machinery & Equipment Import & Export Corp, Xinjiang Co Ltd (Xinjiang Co) for the purchase of 1,400 pieces of dry charged Yuasa brand batteries made by Xinjiang Electric.
The purchase was effected in this way as Mr Ong was told that he could not buy the batteries directly from Xinjiang Electric but had to place his order with Xinjiang Co. Subsequently, the first plaintiff caused a letter of credit to be established in favour of Xinjiang Co in payment of the purchase price. Thereafter it was the first plaintiff who was indicated in all documentation as the importer of the goods.

The goods were shipped by Xinjiang Company in mid August 1990 and among the shipping documents sent to the plaintiffs was a certificate from the Xinjiang Import & Export Commodity Inspection Bureau of the People`s Republic of China certifying that the 1,400 pieces of Yuasa brand batteries so shipped had been manufactured in the People`s Republic of China.
The ship carrying the goods arrived in Singapore on 17 September 1990 and the goods were cleared by the first plaintiff from the customs on 20 September 1990.

In the meantime, in late August, the defendant had received information that Yuasa batteries manufactured in China were going to be imported into Singapore and sold here.
Later, its managing director, Mr Yoshiharu Jibu, learnt from the defendant`s authorized battery dealers that the first plaintiff was selling such batteries to the public. Mr Jibu made enquiries with Yuasa Japan and was informed that it did not have a subsidiary nor any manufacturing facility in China. From the information he obtained, Mr Jibu concluded that the batteries sold by the plaintiffs were not authentic Yuasa batteries but imitation ones.

On 27 September 1990, the defendant issued the following circular to all its dealers:

27 September 1990

Dear Yuasa authorised dealers:

Subject: Beware of imitation!

Recently, unauthorized `Yuasa` brand automotive batteries purporting to be manufactured in the People`s Republic of China have appeared in the Singapore market.



We categorically state herein that Yuasa Battery Co Ltd Japan do not have a manufacturing facility in the People`s Republic of China.
Such `Yuasa` brand batteries are therefore illegal imitation of our registered brand.

We, Yuasa Battery Singapore, hereby stress that we will not hold any responsibility on the quality or whatsoever of these imitation batteries.
Buyers of these batteries will not enjoy our services and warranty coverage.

We further clarify that Yuasa Battery Singapore Co Pte Ltd have no relation with the following companies for their imitation `Yuasa` brand battery:

Sin Heak Hin Tyre Pte. Ltd.

Gateway Riken Tyres Pte. Ltd.

We would like to remind again that Yuasa Battery Singapore Co Pte Ltd is the only one authorized agent for all the Yuasa branded products marketing in Singapore for Yuasa Battery Co Ltd Japan and Yuasa group companies all over the world.



Your attention appreciated.

Yuasa Battery Singapore Co Pte Ltd

Signed Managing Director

cc RCH Lim & Co

Advocates and Solicitors



The plaintiffs learnt about this circular sometime after it was issued, the exact date is a matter of dispute.
They took exception to it on the basis that it was defamatory and, on 16 May 1991, their solicitors wrote to the defendant stating that, by reason of the circular, the plaintiffs had been greatly injured in their credit and reputation and had been brought into scandal, odium and contempt and had suffered damage. The plaintiffs demanded an apology and damages.

The defendant`s solicitors issued a letter of response on 24 May 1991.
This letter did not contain any apology. It simply stated three things. First, that Yuasa Japan had given Xinjiang Electric a licence `to use the trade mark "Yuasa" with no other distinguishing mark.` Secondly, that that licence was for usage and sale within China. Thirdly, it was said that export from China was subject to the approval of Yuasa Japan and that such approval had not been granted for export to Singapore. Apparently, there had been a breach of the licence agreement. The letter ended by giving the plaintiffs notice that any further attempts to deal in the Chinese Yuasa batteries would be resisted by legal proceedings.

The action

The plaintiffs commenced this action for damages on 10 January 1992. Their cause of action was in defamation. In para 6 of the statement of claim endorsed on the writ of summons, the plaintiffs set out the full text of the circular. By para 7 they pleaded as follows:

The said words [ie the whole of the circular] in their natural and ordinary meaning meant and (sic) understood to mean:

(a) The batteries of `Yuasa` brand imported by the first plaintiff from the said motor plant in the People`s Republic of China for the sale and distribution by both the first and second plaintiffs in Singapore were imitated (sic) products to that of the batteries of the same brand name sold or being sold by the defendants to all their dealers.

(b) That both the first and second plaintiffs were unscrupulous and/or deceptive in misleading the public into believing that the `Yuasa` brand batteries imported by the first plaintiffs from the said motor plant in the People`s Republic of China for sale and distribution of the same were not approved or recognized and/or licensed by Yuasa Battery Co Ltd of Japan.



In May 1994, the plaintiffs amended the statement of claim to add an additional cause of action.
They alleged that the defendant had in the circular maliciously written and published or caused to be written and published of, and in relation to the quality of, the Yuasa batteries sold by the plaintiffs, certain false statements, to wit the following:

We categorically state herein that `Yuasa` Battery Co Ltd of Japan do not have a manufacturing facility in the People`s Republic of China. Such `Yuasa` brand batteries are therefore illegal imitation of our registered brand.



We, Yuasa Battery Singapore hereby stress that we will not hold any responsibility on the quality or whatsoever of these imitation batteries.


The plaintiffs` complaint was that the said words were false in that the plaintiffs` Yuasa batteries were not imitation Yuasa batteries nor were they unfit for the purpose for which they were sold.
They further alleged that by reason of the publication of the said words, a total of 235 units of Yuasa batteries that the plaintiffs had sold to dealers had been returned and the balance of the plaintiffs` stock became unsaleable. The plaintiffs therefore made an alternative claim for damages for slander of goods.

The defendant first filed its defence and counterclaim in August 1992.
This was amended in December 1994. At the beginning of the trial, the defendant`s defence in relation to the allegations of defamation and slander of goods was as follows:

(1) that the Yuasa dry charged batteries purportedly imported by the plaintiffs from China were not the products of Xinjiang Electric;

(2) the defendant denied that the wording of the circular bore or was understood to bear any of the meanings set out in para 7 of the statement of claim or any meaning defamatory of the plaintiffs;

(3) the said words were true in substance and in fact;

(4) alternatively, the said words were fair comment made without malice upon a matter of public interest, namely, the acts and conduct of the plaintiffs as traders and dealers in batteries;

(5) alternatively, each of the occasions on which the allegedly defamatory material was published was an occasion of qualified privilege;

(6) with regard to the assertion of a slander on goods, the defendant denied that the words were published in relation to the quality of the Yuasa batteries sold by the plaintiffs and put the latter to proof that the words were false, that the publication was...

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