Koh Sin Chong Freddie v Chan Cheng Wah Bernard

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 26 August 2013
• Docket Number: Civil Appeals Nos 63 and 68 of 2012
• Date: 26 August 2013

[2013] SGCA 46

Court of Appeal

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeals Nos 63 and 68 of 2012

Koh Sin Chong Freddie

Plaintiff

and

Chan Cheng Wah Bernard and others and another appeal

Defendant

Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the appellant in CA 63/2012 and respondent in CA 68/2012

Tan Chee Meng SC, Chang Man Phing, Yong Shu Hsien and Ng Shu Ping (Wong Partnership LLP) for the appellants in CA 68/2012 and respondents in CA 63/2012.

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Tort—Defamation—Damages—Unincorporated association—Factors relevant to determining quantum of damages—Proportionality where collective group defamed—Aggravated damages—Proportionality in quantifying aggravated damages

Civil Procedure—Costs—Principles—Whether taxed bill could be reviewed where already paid

In Chan Cheng Wah Bernard v Koh Sin Chong Freddie[2012] 1 SLR 506 (‘the Merits Judgment’), the plaintiffs succeeded in their defamation action against the defendant as the defence of justification was not made out by the defendant and the defence of qualified privilege was defeated on account of the defendant's malice. The court ordered that damages be assessed. Costs for that appeal and for the trial were awarded to the plaintiffs on a standard basis. The High Court judge proceeded to assess the damages payable by the defendant to the plaintiffs. The plaintiffs and defendant appealed against the awards made.

The defamation action concerned two statements made by the defendant, who was the president of the management committee of the Singapore Swimming Club at that time, in the course of an investigation into certain ‘emergency’ expenditure incurred by the previous management committee of the club. The plaintiffs were members of the previous managing committee. These statements were reflected in the minutes of meetings which were posted on the notice board of the club.

Held, allowing the appeal in part and dismissing the cross-appeal:

(1) Although the defamatory statements might have attacked the members of an unincorporated group jointly, the harm was inflicted on each of the individuals concerned. A collective assessment of damages and granting of a single award to the group might lead to difficulties in quantification and absurd results. Hence, where the plaintiff was part of a collective group defamed, the correct approach would be to assess damages severally in relation to each person: at [15] , [17] , [21] and [22] .

(2) The defamatory statements implied that the Plaintiffs had deliberately set out to deceive club members and insinuated that this dishonesty verged on some criminal misconduct on the part of the plaintiffs. Nonetheless this did not rise to the level of seriousness of ‘extremely dangerous and vicious fraud’ or ‘a conspiracy to misappropriate funds amounting to fraud and gross misconduct’. Moreover there was no allegation of the plaintiffs obtaining a direct financial benefit: at [29] and [30] .

(3) Statements did not exist in vacuo, thus the nature and gravity of the statements had to also be considered against the context in which they were made. The defamatory statements were not emotional, off-the-cuff statements made in the heat of battle and were likely to be accorded weight, thus arguably compounding the gravity of the sting. Moreover, the statements were disseminated to a group of recipients to whom an intimate knowledge of the relationship between the parties could not be imputed: at [31] and [33] .

(4) The plaintiffs did not ask to be differentiated on the basis of their individual professions and appeared to limit their claims to damage to their reputation and standing in the club as members of the previous management committee. Further, the Merits Judgment appeared to limit the sting of the libel to the plaintiffs' positions as former office bearers in the club. Hence, only the plaintiffs' standing and reputation in the club should be taken into account for the purposes of assessment of damages. Weight should be given to the plaintiffs' status as former office bearers and long-standing members of the club and the status of the defendant as president and highest authority in the club at the material time: at [36] and [40] .

(5) The extent of publication must be proved either by direct proof or by establishing a platform of facts from which the court could properly infer that substantial publication had taken place. In this case, the publication of the defamatory statements remained in a single, fixed location which had to be physically accessed by the viewer. This, coupled with the additional inconvenience of the club member having to leaf through the document to read the offending statements, would show that substantial publication could not be properly inferred: at [46] to [48] .

(6) A prior narrative judgment rejecting a defence of justification and so holding the libel to be established was capable of providing some vindication of a claimant's reputation. However it did not follow that damages should thus be substantially reduced: at [49] and [50] .

(7) A clear case for aggravated damages was made out on the facts. Although aggravated damages might be significantly reduced to take into account the claimant's conduct, no provocation had been found on the part of the plaintiffs. In any case, the other conduct raised by the defendant did not relate to the subject of the defamatory statements and were therefore not relevant to mitigation: at [52] and [55] .

(8) A reckless plea of justification that was bound to fail was a classic aggravating factor. It could reasonably be said that a justification plea was bound to fail where there was strong prima facieevidence that the statement was untrue. In light of the long trial on the merits and the fact that the defendant had succeeded in making out the defence of justification at the first instance, it could not be said that the defence was one that was wholly unfounded: at [58] and [60] .

(9) In order to establish the existence of malice, evidence might be led of subsequent publications in respect of which no separate action had been brought where they substantially repeat the same imputation. However, the republication here was essentially a historical account...