Koh Sin Chong Freddie v Chan Cheng Wah Bernard and others and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 August 2013
• Neutral Citation: [2013] SGCA 46
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals No 63 and 68 of 2012
• Published date: 03 September 2013
• Year: 2013
• Hearing Date: 18 March 2013
• Plaintiff Counsel: Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co),Tan Chee Meng SC, Chang Man Phing, Yong Shu Hsien and Ng Shu Ping (WongPartnershipLLP)
• Subject Matter: Tort,Defamation,Damages
• Citation: [2013] SGCA 46

Chao Hick Tin JA (delivering the judgment of the court): Introduction

The present cross-appeals arise from an award made at an assessment of damages by the High Court judge (“the Judge”) on 15 May 2012 in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie [2012] SGHC 193 (“the Damages Judgment”) pursuant to a decision of this court in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 (the “Merits Judgment”). The Judge awarded a total sum of S$420,000 to the four plaintiffs as damages for defamation with each plaintiff being awarded $70,000 in general damages and $35,000 in aggravated damages.

At the close of the hearing on 18 March 2013, we reserved judgment and directed parties to file further written submissions on three questions: What is the appropriate approach to take in an assessment of damages for defamation where the plaintiffs are members of a collective group? Is there any specific principle of proportionality which the court should have regard to? Are there any particular principles which the court should apply in assessing aggravated damages? Would this Court be entitled to vary the taxed costs awarded to the Plaintiffs on the issue of liability pursuant to the Merits Judgment of this court?

Background

Chan Cheng Wah Bernard@Alif Abdullah (“Bernard Chan”), Tan Hock Lay Robin (“Robin Tan”), Chong Tjee Teng Nicholas (“Nicholas Chong”) and Ho Bok Kee (“Michael Ho”) were members of the 2007/2008 management committee (“the previous MC”) of the Singapore Swimming Club (the “Club”) holding the positions of President, Vice-President, Honorary Treasurer and Facilities Chairman of the Club respectively. They were the plaintiffs in the action below, Suit No 33 of 2009 (“the action”). They are the respondents in CA 63 of 2012 and the appellants in CA 68 of 2012. They will hereinafter be referred to as “the Plaintiffs”.

Freddie Koh Sin Chong was defendant in the action and is the appellant in CA 63 of 2012/respondent in CA 68 of 2012. He was elected President of the 2008/2009 management committee of the Club (“the current MC”) at the Club’s Annual General Meeting (“AGM”) held in May 2008 (“the May 2008 Elections”). He was re-elected as President for a further one-year term at the AGM held in 2009. He will hereinafter be referred to as “the Defendant”.

In the action the Plaintiffs sued the Defendant for defamation. The facts of the case were set out at length in our Merits Judgment and will not be repeated here. Briefly, the present dispute arose from two statements (“the First Statement”, “the Second Statement” and collectively, “the Statements”) made by the Defendant in the course of an investigation carried out by the current MC into certain “emergency” expenditure incurred by the previous MC relating to the purchase of a new water system for the two swimming pools of the Club (“the TWC Expenditure”). These statements were reflected in the minutes of meetings of the current MC held on 29 October 2008 and 26 November 2008 (“the Minutes”), which were posted on the notice board of the Club.

At the conclusion of the trial to establish liability, the Judge held that while the statements were defamatory of the Plaintiffs, the Defendant was successful in his plea of justification. She also held that the statements were made on an occasion of qualified privilege. On appeal by the Plaintiffs, we reversed the decision of the Judge and held that the defence of justification was not made out by the Defendant and that the defence of qualified privilege was defeated on account of his malice. We further ordered that damages be assessed by the Judge. Costs for that appeal and for the trial were awarded to the Plaintiffs on a standard basis.

Following the Merits Judgment, the Statements were republished as part of a narration of events surrounding the TWC Expenditure in a Press Publication concerning the Club’s matters dated 8 February 2012 (“the Facts Sheet”).

The Decision Below

On the nature and gravity of the defamation, the Judge held that the Statements were grave as they imputed dishonesty on the part of the Plaintiffs, notwithstanding this court’s finding of minor inaccuracies in the representations made by the previous MC when it sought ratification of the TWC Expenditure. However, she also observed that the sting of the charge was diluted as dishonesty was not imputed to the Plaintiffs individually but to the previous MC as a whole. Further, the suggested dishonesty related to persuading members to ratify expenditure which had been incurred on the Club’s behalf, rather than a more serious level of dishonesty such as the taking of funds for their own direct financial benefit or the commission of a criminal offence.¹

The Judge also held that the fact the Plaintiffs, as Club members, were defamed in the eyes of other Club members by a person holding a position of authority, was a factor which should enhance the quantum of damages to be awarded to the Plaintiffs, even though they were not public figures.²

Emphasis was placed by the Judge on the less than widespread publication of the defamatory statements. Crucially, she noted that the form of publication was passive in the sense that the Minutes were simply put on the Club’s notice board as a matter of course and would not have been read except by members interested in the Club’s affairs. She further found it likely that the Minutes did not remain on the board for more than a month. Although she recognised that the dispute was a live one and the Statements were thus possibly published to quite a number of people, she was not satisfied that the Plaintiffs had discharged the burden of proving that there was more than a moderate dissemination of the defamatory statements.³

Aggravating factors considered by the Judge included the Defendant’s failure to apologise; the presence of malice as noted by this court in the Merits Judgment; and the conduct of the Defendant at the trial, in particular the prolonged and aggressive cross-examination of the Plaintiffs.⁴ In light of these factors and our finding in the Merits Judgment that the dominant motive of the Defendant in publishing the defamatory statements was to injure the Plaintiffs, the Judge awarded aggravated damages. However, she held that the Defendant’s plea of justification was not “bound to fail” as it succeeded in the first instance and thus could not be considered as a factor aggravating damages.⁵

The Judge also placed no weight on the republication of the Statements in the Facts Sheet in February 2012, as this took place after the the Plaintiffs had been vindicated by the Merits Judgment. Hence, the republication would not have further damaged the Plaintiffs’ reputations.⁶

Having considered all these factors as well as the awards given in Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 (“Peter Lim”) and Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86 (“Arul Chandran”), the two precedents which the Judge thought were most germane to the present case, the Judge awarded each of the Plaintiffs S$70,000 as general damages and S$35,000 as aggravated damages.⁷ Both the Plaintiffs and Defendant have appealed against the Judge’s award, with the Defendant seeking to reduce it and the Plaintiffs to have it increased.

Issues

The issues which arise in the present appeals on the Judge’s assessment may be categorised as follows: Whether the Judge erred in her assessment of general damages and/or aggravated damages; Whether the same quantum of damages needed to be awarded to each of the Plaintiffs; and Whether this Court would be justified in varying the award of damages.

Our decision Assessing damages where the plaintiffs are part of a collective group defamed

As the Plaintiffs in the present case were defamed as members of an unincorporated group (ie, members of the previous MC), a preliminary point which we need to address is how damages should be awarded in favour of such a group.⁸Gatley on Libel and Slander (Patrick Milmo & W V H Rogers eds) (Sweet & Maxwell, 2008, 11th Ed) (“Gatley on Libel and Slander”) at para 8.28 states the following in relation to defamation involving unincorporated associations:

…Where the members of such a group are defamed, each has his own action if sufficiently identified by the libel. An action for libel will not lie against an unincorporated association or body of persons in its collective name, for as an entity it can neither publish not authorize the publication of a libel. Nor can it sue for it lacks sufficient personality…

Hence where an unincorporated group is defamed, members of the group must bring an action in defamation in their individual names. There is no concept of representative action; members of the group may not bring an action in defamation on behalf of the group or the other members.

However, the Defendant submits that the correct approach for the court to adopt in assessing damages where an unincorporated body is involved is to assess damages collectively and make a single award to the group.⁹ Apportionment between the individual claimants comprising the group can then be carried out, taking into account factors such as who was principally targeted and who within the group was most closely associated with the defamatory remarks.¹⁰ The Defendant also seeks to distinguish between the defamation of a strictly organized and homogeneous group which acts collectively, which he argues was the case here, and the situation where individuals bring an action in defamation by virtue of their identity with a group which is the subject of defamation.¹¹

It seems to us that the Defendant’s submission is not borne out by the authorities. In the earlier case of Booth v Briscoe (1877) 2 QBD 496 (“Booth”), Bramwell J held at 497-498 :

Here there is no joint damage. Each man's character, if there is a libel,...