Kanagavijayan Nadarajan t/a Kana & Co v Tham Sit Mooi

• Jurisdiction: Singapore
• Court: Magistrates' Court (Singapore)
• Judge: Ng Tee Tze Allen
• Judgment Date: 26 April 2022
• Neutral Citation: [2022] SGMC 17
• Citation: [2022] SGMC 17
• Docket Number: Magistrate Court Suit No 6027 of 2020
• Hearing Date: 04 April 2022,08 November 2021
• Plaintiff Counsel: Kanagavijayan Nadarajan (Kana & Co)
• Defendant Counsel: Irving Choh and Renee Oei (Optimus LLC)
• Subject Matter: Tort,Defamation,Section 5 Defamation Act (Cap 75, 2014 Rev Ed),Justification,Fair comment,Damages
• Published date: 30 April 2022

District Judge Ng Tee Tze Allen:

The plaintiff is the defendant’s ex-solicitor. On 29 January 2019, the defendant and her friend, Lim Jun Yih (“Mr Lim”), attended unannounced at the plaintiff’s office building to demand a refund of the sum of S$40,000 which the defendant had paid to him. They saw the plaintiff at the ground level and approached him to demand the refund. The plaintiff claims that the defendant defamed him during the incident and has accordingly sued.

Facts The defendant paid the plaintiff S$40,000 for a possible appeal in DC/PHA 34/2016

As stated, the plaintiff is the defendant’s ex-solicitor. He was first engaged to act for the defendant on or around 8 September 2017 to represent her in DC/PHA 34/2016. It was agreed that she would pay him a lump sum of S$50,000 for his work in this matter.¹

A couple of days before the decision of DC/PHA 34/2016 was released, the parties discussed the possibility of an appeal against the decision in DC/PHA 34/2016. In those discussions, the plaintiff quoted S$40,000 for the appeal. The defendant agreed. On 17 January 2018 she paid S$40,000 to the plaintiff.²

No appeal was filed

Two days later, on 19 January 2018, the Court in DC/PHA 34/2016 granted a protection order to the defendant.³ No costs order was made.

There was some dispute as to whether the defendant initially wanted to appeal against the Court’s decision not to award costs, and whether the plaintiff advised her not to. But little turned on this point. It was common ground that at the end of the day, the plaintiff decided that no appeal was necessary.

S$40,000 retained for other CDRT matters

It was also common ground that the plaintiff did not refund the S$40,000 despite the defendant not proceeding with the appeal. In this respect, it was not disputed that the plaintiff had told the defendant that he would retain the S$40,000 for three other matters before the Community Dispute Resolution Tribunals (the “CDRT matters”). It was also not disputed that legal services were rendered for the same.⁴

However, the parties disagreed as to whether the plaintiff was entitled to retain the S$40,000 for this reason: The defendant’s case is that the S$40,000 should be returned because it was intended for the appeal in DC/PHA 34/2016 and no appeal was filed. Further and in the alternative, even if the S$40,000 was to be applied towards the work done for the CDRT matters, that proper invoices should have been issued. According to the defendant, she had asked for this on a number of occasions to no avail. She also asserted that the plaintiff shifted office without telling her which led to her conducting Google searches to locate the plaintiff’s new office.⁵ The plaintiff disagreed. He took the position that the S$40,000 should not be refunded because the defendant had agreed for it to be applied towards the preparatory work for the appeal in DC/PHA 34/2016 and for the work done in the CDRT matters.⁶ He claimed that the defendant had not requested for the return of the S$40,000 or for interim bills until the incident of 29 January 2019.

The defendant demands the return of the S$40,000

This brings us to the events of 29 January 2019. The defendant and Mr Lim had intended to meet the plaintiff at his office that day. However, they did not make a prior appointment and when they saw him at the ground floor of the office building, approached him.

What happened next was caught on video and transcribed. The defendant and Mr Lim asked for a refund of the S$40,000, and the plaintiff disagreed. The video showed that the defendant to be quite aggrieved. During the exchange, the plaintiff requested a number of times that they meet the next day in his office. The defendant eventually agreed, but not before she made a number of statements which the plaintiff took issue with.⁷

The plaintiff sued the defendant for defamation

On 2 June 2020, the plaintiff commenced this action. On 17 February 2021, he amended his Statement of Claim. In his Statement of Claim (Amendment No. 1), he set out the statements which he claimed the plaintiff made on 29 January 2019 (collectively, the “Statements”) which he took issue with: Statement 1: “You never do your job”⁸ Statement 2: “You want to earn money ok you must earn you, [followed by 5 Mandarin words].” According to the plaintiff, Mr Lim had translated the defendant’s statement to the plaintiff in the following terms “What she said was even though you want to earn money right you must earn ethically in a way.”⁹ Statement 3: “I don’t want to find trouble lah, ok hoh. You already charge me very high legal fee already. Please return me the $40,000.00 enough… Now I go and see ASP Leong see what to do like that.”¹⁰ Statement 4: “As a lawyer you must know how to fight”¹¹

One final point should be noted of the plaintiff’s case. Even though this was a case involving slander, he did not seek to allege or prove special damages. Instead, he relied on exception set out in s 5 of the Defamation Act (Cap 75)(2014 Rev Ed) (the “Act”) arguing that the Statements were “calculated to … disparage [him] in his … profession as an Advocate & Solicitor.”¹²

In her Defence (Amendment No 1), the defendant pleaded that the Statements were not defamatory, ¹³ and in any event, were not heard by third parties.¹⁴ She also denied that the Statements were calculated to disparage the plaintiff in his profession and pleaded that the defences of justification and fair comment applied.¹⁵

Issues

In the circumstances, I will proceed as follows. I will start by determining whether the plaintiff had proved a prima facie case of actionable slander. To that end, I will determine: whether the Statements were defamatory and if they referred to the plaintiff; whether the Statements were published; and whether the Statements were calculated to disparage the plaintiff in his profession to attract the application of s 5 of the Act.

I will then determine whether the defendant had established her defences for the Statement(s) in which a prima facie case of actionable slander is established. As noted, the defendant has raised the defences of justification and fair comment.

Finally, I will determine the quantum of damages (if any) to be awarded.

Whether the plaintiff established a prima facie case of actionable slander The law

The law was not in dispute. To establish a prima facie case of defamation, a claimant must prove three elements: First, that the statement is defamatory in nature. This element would be established if the statement lowers the claimant in the estimation of right-thinking members of the society generally or ordinary reasonable people: Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing)(2nd Ed, 2016) at [12.015]. In this respect, it is trite that a person may be defamed in respect of his office, profession, calling, trade or business: Clerk & Lindsell on Torts (22 Ed, 2018) at [22-47]. Second, that the statement refers to the claimant. This element would be established if a third party would reasonably understand the statement to refer to the claimant: Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing)(2nd Ed, 2016) at [12.054] Third, that the statement was published. This element would be established if the statement has been communicated to at least one person other than the plaintiff who would reasonably understand the statement to be defamatory to the plaintiff: Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing)(2nd Ed, 2016) at [12.069].

Where a matter concerns slander, the claimant would ordinarily need to allege and prove special damages for it to be actionable. Alternatively, he may seek to rely on an exception: Goh Chok Tong v Jeyaretnam Joshua Benjamin [1997] 3 SLR(R) 46 at [35]; Gary Chan Kok Yew, The Law of Torts in Singapore (Academy Publishing)(2nd Ed, 2016) at [12.006]. In the present case, the plaintiff sought to rely on the exception set out in s 5 of the Act:

Slander affecting official, professional or business reputation

5. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

(emphasis in bold)

In this regard, the phrase “calculated to” has been interpreted to mean “likely to produce the result”: DHKW Marketing and another v Nature’s Farm Pte Ltd [1998] 3 SLR(R) 774 at [39]; Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639 at [112]. Applied to the facts of our case, the plaintiff had to prove that the Statements were likely to disparage him in his profession as a solicitor and advocate to rely on s 5 of the Act.

Statement 1 Whether Statement 1 was defamatory and referred to the plaintiff

Statement 1 was “you never do your job”.

The plaintiff submitted that Statement 1 meant that the plaintiff was lazy, has a lackadaisical attitude and was not a good worker, and that the above statements were published because they were shouted in front of a Malay man.¹⁶

I accept that the Statement 1 was defamatory and that it did refer to the plaintiff. This is clear from the plain reading of Statement 1. Furthermore, a third party listening to this exchange would have also heard the defendant’s reasons for alleging that the plaintiff did not fight for her. The relevant part of the transcript is reproduced below:¹⁷

Defendant: I don’t want to talk too much, count too much with you okay. Fifty thousand plus plus plus again the lawyer fee for the POHA okay, you never. I know, we know, you never try your best to fight for me you know Like Shawn Loo show the video okay, I and my husband come up, haven’t touch the dustbin, why you

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