Kay Swee Pin v Singapore Island Country Club and others

• Judge: Belinda Ang Saw Ean J
• Judgment Date: 10 June 2010
• Neutral Citation: [2010] SGHC 175
• Citation: [2010] SGHC 175
• Docket Number: Suit No 973 of 2008
• Published date: 18 June 2010
• Hearing Date: 11 November 2009,10 November 2009,12 November 2009,31 December 2009
• Plaintiff Counsel: S H Almenoar and Raji Ramason (R Ramason & Almenoar)
• Date: 10 June 2010
• Defendant Counsel: Ang Cheng Hock SC, Ramesh s/o Selvaraj and Eunice Chew (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Subject Matter: Issue Estoppel,Defamation,Tort,Res Judicata

Belinda Ang Saw Ean J: Introduction

The plaintiff, Kay Swee Pin (“KSP”), is a principal member of the first defendant, Singapore Island Country Club (“SICC” or “the Club”). The second to thirteen defendants (collectively, “D2” to “D13”) are being sued as members of the General Committee of the SICC (“the GC”). The subject matter of this libel action is a notice suspending KSP’s club membership for the period from 19 May 2006 to 18 May 2007 (“the Notice”) which was, by order of the GC, posted for a year on the notice boards of SICC’s Bukit and Island clubhouses.

The background

This libel action is a sequel to KSP’s successful judicial review proceedings against SICC, whereby her year-long suspension as a member of the SICC was held to be invalid by the Court of Appeal (see Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR (R) 802 (“Kay Swee Pin v SICC (CA)”)). To vindicate her reputation, KSP is seeking substantial damages for defamation from the defendants. The details of the proceedings before the Disciplinary Committee of the SICC (“the DC”), and the judicial review proceedings in the High Court (see Kay Swee Pin v Singapore Island Country Club [2007] SGHC 166 (“Kay Swee Pin v SICC (HC)”) for the High Court’s grounds of decision) are set out in Kay Swee Pin v SICC (CA).

The brief factual background for present purposes is this. In 1992, KSP made an application to SICC to be approved as a principal member after purchasing her membership from an existing member. In her application form, KSP declared one Ng Kong Yeam (“NKY”) as her spouse. As a spousal member, NKY would be entitled to use the Club’s facilities. For clarity, I should reproduce here the text of the declaration in the application form completed by KSP. It stated:

I, the undersigned, declare that all the information given herein is true.

The signature of KSP as the proposed transferee followed immediately after the declaration.

In August 2005, acting upon concerns raised by some SICC members over KSP’s marital status, the second defendant (“D2”), who was the then President of SICC, asked the membership department to check whether KSP’s membership file contained a copy of KSP’s marriage certificate. None was found. This was not surprising because prior to 1994, the Club did not require a member to submit a copy of his or her marriage certificate when registering his or her spouse as a spousal member to use the Club’s facilities. The membership department then asked KSP for a copy of her marriage certificate in order to update her membership record. On 10 September 2005, KSP provided SICC with a copy of her marriage certificate, which showed that her marriage to NKY was registered on 24 August 2005 in Las Vegas, State of Nevada.

The charge against KSP

On 26 September 2005, the Club received a formal complaint lodged by a SICC member, one John Lee (“JL”) against KSP. JL called upon SICC to investigate concerns among SICC members over KSP’s marital status as she was running for the post of Lady Captain of the Lady Golfers’ Sub-Committee of SICC (“Lady Captain for Golf”). The complaint was referred to the GC. In October 2005, the GC decided to institute disciplinary proceedings against KSP. The DC of SICC duly convened a hearing in accordance with Rule 34 (a) of the Club’s rules (“the Rules”). On 18 November 2005, a charge against KSP (“the Charge”) was framed in the following manner: ¹

...[Y]ou have acted in a manner prejudicial to the interests of the Club and its members in that, you have falsely declared Mr Ng Kong Yeam (NRIC S2504572/F) as your spouse, to make use of the Club’s facilities since September 1992, when the marriage certificate submitted by you on [Saturday] 10 September 2005 showed that your marriage to Mr Ng Kong Yeam was only registered on 24 August 2005 in Las Vegas, State of Nevada.

Proceedings before the DC

KSP’s answer to the Charge was that even though she had formally registered her marriage to NKY only on 24 August 2005, it did not mean that they were not married much earlier. She maintained that they had clearly been husband and wife for over 20 years, and this was acknowledged by everyone to be so. Their daughter from the marriage was already 18 years old. In her written responses of 7 January 2006 and 8 February 2006, KSP informed the Club of her Chinese customary marriage to NKY on 12 January 1982 having observed traditional and customary rites in the marriage ceremony. To substantiate her claim, KSP submitted to the DC, four statutory declarations confirming her customary marriage to NKY and the legal opinion of Messers Haris Azmi & Associates (“HAA”), a Malaysian law firm, that confirmed that marriages solemnised under any custom prior to 1 March 1982 would be deemed to be registered under s 4 of the Law Reform (Marriage and Divorce) Act 1976 (No 164 of 1976) (Malaysia).² HAA further opined that KSP and NKY’s marriage on 12 January 1982 in accordance with Chinese custom would be deemed to be registered under the aforementioned statutory provision.

At the hearing on the Charge on 11 February 2006, the DC’s concern was whether KSP was divorced from her first husband, Koh Ho Ping (“KHP”), when she joined the Club in 1992. SICC wrote to KSP seeking information and documents relating to the dissolution of her marriage to KHP. In response to the Club’s request, KSP said that she was unable to recall the exact date of the dissolution of her first marriage, which had taken place more than 20 years ago before she joined SICC as a member. She remarked that her first marriage was an unhappy period in her life that was best forgotten. She also confirmed that she did not have any documents relating to the dissolution of that marriage. In any case, she felt that details of the dissolution of her first marriage were irrelevant to the Charge. Her explanation of why she and NKY had registered their marriage in Las Vegas on 24 August 2005 was that they had done so in order to provide a marriage certificate as requested by SICC. Significantly, KSP pointed out that if the SICC had insisted on the submission of a marriage certificate at the time she applied to be a member in 1992, she and NKY could easily have complied by registering their marriage at that time.

Based on the divorce documents filed in court (which were obtained by the Club and made available to the DC), KSP filed her divorce petition on 23 December 1982. The Decree Nisi was granted on 28 November 1983, and the Decree Absolute was granted on 2 March 1984. To the DC, the court documents showed that KSP was already divorced from KHP at the time she joined SICC. On that basis and in the light of her marriage to NKY on 12 January 1982 at the New Hong Kong Restaurant, Johor Bahru, Malaysia, according to Chinese customary rites, the DC recommended that the Charge be withdrawn. The DC specifically stated in its findings that it was unable to confirm whether Singapore law would recognise the Malaysian customary marriage between KSP and NKY in 1982 in view of the fact that KSP’s divorce was only finalised in 1984.

The DC's findings and recommendations were not accepted by the GC. In its deliberations, it noted that KSP’s first marriage had been dissolved only on 2 March 1984 whereas her customary marriage to NKY had been entered into on 12 January 1982. The GC concluded that, on the evidence, KSP had still been married to KHP on 12 January 1982. As such, she could not have had the requisite legal capacity to marry NKY on that date. The GC remitted the case back to the DC with directions that it decide the complaint on the basis that NKY was not “the spouse at the material time of nomination to the Club",³ and that it take into account any relevant mitigating factors.⁴

The DC met again on 21 April 2006 to deliberate and make its recommendations on the complaint to the GC based on the fact that NKY was not a spouse. In that connection, the DC noted that the ordinary grammatical meaning of the word “spouse” is one’s husband or wife under a valid marriage.⁵ In the report which it issued after this meeting ("the Second DC Report"), the DC identified the following as mitigating factors:⁶ (a) Prior to January 1994, the Club did not require a member to provide a copy of his or her marriage certificate in order to register his or her spouse as spousal member. (b) If the Club had required such a certificate when KSP applied to join as a member, she and NKY could have complied with such a requirement. (c) KSP did not hide her marital status. Everyone who knew her acknowledged NKY and her as husband and wife. In fact, KSP and NKY had a daughter who was already 18 years old. (d) There was no attempt to cheat or deceive the Club. (e) NKY had used the Club’s facilities as a spousal member, not with the intention of cheating, but as a result of a technical breach of the Rules.

The DC recommended that SICC be compensated for green fees amounting to $12,500 that it could have collected from KSP for NKY's golf games from 2001 to date (the records for the period prior to 2001 were not available). The DC was of the view that this was a sufficient penalty.

Suspension of KSP’s membership and the Notice

The GC met on 8 May 2006 to consider the Second DC Report. The GC adopted the recommendations, but, in addition, decided to suspend KSP’s club membership for a year from 19 May 2006 to 18 May 2007. Following the decision of the GC, SICC posted on the notice boards at its clubhouses copies of the Notice, which read as follows:

SUSPENSION OF MEMBERSHIP

Member’s Name: Kay Swee Pin

Membership Number : K 1074

Incident : Acted in a manner prejudicial to the interests of the Club and its members in that, she had falsely declared Mr Ng Kong Yeam as her spouse to make use of the Club Facilities since September 1992, when the marriage certificate submitted by her on Saturday, 10 September 2005 showed that her marriage to Mr Ng...