Hong Lam Marine Pte Ltd and Another v Koh Chye Heng

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 23 September 1998
• Neutral Citation: [1998] SGCA 60
• Date: 23 September 1998
• Subject Matter: Defamation,Publication of statements in minutes of meeting,Civil Procedure,Tort,Respondent making defamatory statements at creditors' meeting,Annexation of minutes to affidavit filed in separate winding up proceedings,Absolute privilege,Whether defamation action in respect of those statements an abuse of process of court,Voluntary disclosure in legal proceedings of document containing defamatory statements,Abuse of process,Striking out,Whether publication of defamatory statements made on occasion of absolute privilege
• Docket Number: Civil Appeal No 266 of 1997
• Published date: 19 September 2003
• Defendant Counsel: Tan Kok Quan SC and Roy Monoj Kumar (Roy & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Scott Thillagaratnam and S Selvam (Ramdas & Wong)

Judgment:

LP THEAN JA

(delivering the grounds of decision of the court): Background facts

1.The first appellant (Hong Lam) is a company incorporated in Singapore. The second appellant (Lim) is a director of Hong Lam and holds all but one of the shares in Hong Lam. He is also a director of a company, Wyno Marine Pte Ltd (Wyno), and holds 60% of the shares in that company. The respondent was at all material times the managing director of Wyno. On 1 November 1991, the respondent convened a meeting of Wyno`s creditors (the creditors` meeting), at which he informed the creditors that Wyno was insolvent. He promised them that he would do his best to help the creditors to recover their debts from Lim expeditiously, as several of them had helped him in the past and he found it unfair to them if they did not get paid. He further told the creditors that Hong Lam`s directors had received `kick-backs` from Wyno and that the payments were unlikely to be reflected in Wyno`s accounts. What he said was recorded in the minutes of the meeting, which were confirmed and signed by the creditors as well as by the respondent himself

2.The creditors subsequently by a letter dated 12 November 1991 promised the respondent that in consideration of his co-operation with them in recovering their claims against Wyno, they would not commence any civil proceedings against him. They also undertook to draw the attention of the relevant prosecuting authorities to the assistance he had rendered them, should criminal proceedings be brought against him.

3.On 22 November 1991, Wyno`s largest single creditor, Chong Lee Leong Seng Co Ltd (CLLS), petitioned for the winding up of Wyno in Companies Winding Up No 244 of 1991 (CWU No 244). CLLS also applied at the same time for appointment of provisional liquidators. In support of the application, one Lai Chong Meng (Lai), a director of CLLS, filed an affidavit alleging, inter alia, `highly irregular dealings` on the part of Lim and he produced a copy of the minutes of the creditors` meeting. The application was allowed and provisional liquidators were appointed on the same day pending the making of a winding up order. On 24 January 1992, the winding up order against Wyno was made and liquidators were appointed.

4.Subsequently, Wyno (in liquidation) commenced an action against Hong Lam and Lim in Suit No 2274 of 1993 (Suit No 2274) claiming damages for all losses incurred by Wyno. The respondent was brought in as a first third party in that suit, and on discovery the document containing the minutes of the creditors` meeting was disclosed in the list of documents available for inspection.

5.On 28 August 1996, Hong Lam and Lim (jointly referred to as `the appellants`) commenced this defamation action against the respondent. In their statement of claim, they averred that the respondent wrote and published or caused to be written and published the minutes of the creditors` meeting on 1 November 1991, and that the following words therein were defamatory of them:

7 The following were mentioned verbally by Mr Koh in the present [sic] of the creditors.

7.1 WM 102 & WM 103

Akasaka Engine - approximately $70,000 as kick-back per engine was paid to Hong Lam`s directors.

7.2 WM 102

Contract between Hong Lam and Wyno was signed five months later after WM 102 was being built.

(It is within Mr Koh`s acknowledge [sic] that Hong Lam in turn contracted with Asian Eternal Shipping to build the vessel for $13.1m.)

8 Mr Koh said that he did ask for a set of Wyno`s accounts but he did not get it. There was also a payment of approximately $700,000 paid back to Hong Lam. Mr Koh further expressed that he did not think the kick-back and other payments to Hong Lam from Wyno would be reflected in the accounts anyway.

They sought damages, as well as an injunction restraining the respondent from further publishing or causing to be published the words complained of. The claim was resisted, and in the defence filed the respondent raised the defences of justification, absolute privilege and qualified privilege.

6.On 9 September 1997, the respondent by way of summons for further directions applied for an order that the statement of claim be struck out under O 18 r 19(1) of the Rules of Court and/or under the inherent jurisdiction of the court on the ground, inter alia, that the action was an abuse of the process of the court. The assistant registrar dismissed the respondent`s application. The respondent appealed to a judge in chambers. The appeal was allowed and the statement of claim was struck out and the action dismissed.

7. The appeal

Against the decision of the learned judge in chambers this appeal was brought. We allowed the appeal and restored the order of the assistant registrar. We now give our reasons.

8.There were two issues in this appeal. The first was whether the publication of the words complained of was made on an occasion of absolute privilege. This was one of the defences to the claim for defamation raised by the respondent, which if made good, was a complete defence to the claim. The second issue was entirely different and had nothing to do with any of the defences to the claim. It arose in this way. The appellants obtained the minutes of the creditors` meeting from a copy thereof exhibited in the affidavit of Lai that was filed in support of the application for the appointment of provisional liquidators in CWU No 244. The question was whether it was an abuse of the court process for the appellants to make use of this document which came to their knowledge as a result of that disclosure in those proceedings.

9.On the first issue, counsel for the appellants submitted that no question of absolute privilege arose in respect of the respondent`s statements contained in the minutes of the creditors` meeting. He pointed out that the defamatory statements complained of were not made by the respondent in the course of judicial or quasi-judicial proceedings. The creditors` meeting of 1 November 1991 was a meeting held by the creditors to decide what action should be taken against Wyno and the appellants. It was not even a meeting held in connection with any judicial or quasi-judicial proceedings.

10.Counsel for the respondent, on the other hand, contended that the scope of absolute privilege should be extended to cover the statements contained in the minutes of the creditors` meeting. Counsel conceded that if the appellants had based their action on the words spoken by the respondent at the creditors` meeting and had pleaded slander, no defence of absolute privilege could arise. It was emphasised, however, that the appellants had based their action on the statements of the respondent as reduced into a written form, ie the minutes of the meeting, which was referred to in the affidavit of Lai filed in support of the application for the appointment of provisional liquidators. Thus, in the light of the rationale underlying the defence of absolute privilege in respect of statements made in judicial proceedings, namely, that witnesses should give evidence, whether orally or by way of affidavit, without fear of consequences to themselves or to others, it was submitted that this defence should be extended to the makers of statements relied upon by witnesses in their affidavits, as in this case by Lai in his affidavit.

11.We were unable to accept the arguments of the respondents. The appellants based their claim on the alleged defamatory statements made by the respondent as recorded in the minutes at the meeting of creditors of Wyno. In their statement of claim, the appellants averred that on or about 1 November 1991 the respondent attended the creditors` meeting and there he `wrote and published or caused to be written and published` the words complained of. Those words were attributed to the respondent and they were reduced into the form of minutes of the meeting and he was one of the signatories of the minutes. Thus the appellants are relying on the publication of the defamatory words in those circumstances. The learned judge in his grounds of judgment said at [para ] 22:

Applying these principles, the first point to be made is that the defendant was obviously not speaking in the course of proceedings before a court or tribunal when he made those statements at the creditors` meeting convened by himself. Since the liquidators, provisional or otherwise, were not yet on the scene, it could not be said also that the creditors` meeting was a matter incidental to judicial proceedings. The defendant therefore could not claim absolute privilege in making the statements at the creditors` meeting.

In our opinion, the learned judge was right in his conclusion that there could not be any claim of absolute privilege in respect of the statements made by the respondent at the creditors` meeting.

12.However, the learned judge went on further and referred to Lai`s affidavit filed in CWU No 244, which referred to the minutes of the creditors` meeting, and he held that the absolute privilege extended to the respondent as the maker of the statements in the minutes relied upon by Lai in his affidavit. With respect, the appellants were not basing their claim on the publication of the words complained of on that occasion. Their claim was founded on an earlier publication, ie on 1 November 1991 or thereabouts. In our judgment, no question of absolute privilege arose in respect of the publication relied upon by the appellants.

13.We now turn to the second issue. It was not in dispute that the appellants came to know of the minutes from the copy thereof exhibited by Lai in his affidavit that was filed in the winding up proceedings. Arising from this disclosure the appellants initiated this action, and the question was whether it was an abuse of court process for the appellants to found an action of defamation on the alleged defamatory statements which they discovered in those proceedings. The learned judge held that it was. He...