Lee Hsien Loong v Review Publishing Co Ltd and Another and Another Suit

JurisdictionSingapore
JudgeWoo Bih Li J
Judgment Date23 September 2008
Neutral Citation[2008] SGHC 162
Docket NumberSuits Nos 539 and 540 of 2006 (Summonses Nos 3833 and 3834 of 2007)
Date23 September 2008
Year2008
Published date24 September 2008
Plaintiff CounselDavinder Singh, SC, Jaikanth Shankar and Wilson Wong (Drew & Napier LLC)
Citation[2008] SGHC 162
Defendant CounselPeter Cuthbert Low, Carrie Gill and Han Lilin (Colin Ng & Partners LLP)
CourtHigh Court (Singapore)
Subject MatterDefamatory statements,Defamation,Whether the defendants entitled to rely on defences of justification, qualified privilege and fair comment,Rules of court,Summary judgment,Whether court might reach meaning of allegedly defamatory words different from that pleaded,Whether plaintiffs' applications for summary judgment should be allowed,Whether application for summary judgment under O 14 r 1 could be combined with striking out application under O 18 r 19,Tort,Civil Procedure,Whether allegedly defamatory words defaming plaintiffs,Whether plaintiff might amend statement of claim after application for summary judgment first determined,Plaintiffs suing defendants for publishing allegedly defamatory articles about them,Amendments,Whether allegedly defamatory words referring to plaintiffs,Order 14 r 1 and O 18 r 19 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether articles defamatory in nature

23 September 2008

Judgment reserved.

Woo Bih Li J:

Introduction

1 The present actions stem from the publication of an allegedly defamatory article (“the Article”) in the July/August 2006 issue of the Far Eastern Economic Review (“FEER”). The plaintiff in Suit No 539 of 2006 is Mr Lee Hsien Loong (“LHL”), the Prime Minister of Singapore. The plaintiff in Suit No 540 of 2006 is Mr Lee Kuan Yew (“LKY”), the Minister Mentor in the Prime Minister’s office and a cabinet minister. The first defendant in both suits, Review Publishing Co Ltd (“RP”), is the publisher of the FEER. The second defendant in both suits, Mr Hugo Restall (“HR”), is the editor of the FEER and the author of the article complained of in both actions. For ease of reference, I shall refer to both plaintiffs collectively as “the Plaintiffs” and both defendants collectively as “the Defendants”. I shall also refer to Suit 539 of 2006 and Suit 540 of 2006 collectively as the present actions”, and individually as “the LHL action” and “the LKY action” respectively. I will refer to Defence (Amendment No 1) in the LHL action and Defence (Amendment No 2) in the LKY action collectively as “the Amended Defences”.

2 In the present summonses before me, viz, Summons No 3833 of 2007 and Summons No 3834 of 2007, each of the Plaintiffs seek the following reliefs:

(a) the determination of the natural and ordinary meaning of certain words (“the Disputed Words”) contained in the Article pursuant to Order 14 Rule 12 of the Rules of Court (Cap 322, R5, 2006 Rev Ed);

(b) interlocutory judgment:

(i) with damages to be assessed; and

(ii) an order that the Defendants be restrained from the publication, sale, offer for sale, distribution or other dissemination by any means whatsoever of the defamatory allegations, or other allegations to the same effect, in Singapore,

pursuant to Order 14 Rule 1 of the Rules of Court on the basis that the Defendants have no defence.

(c) Alternatively,

(i) that substantial portions of the Amended Defences ought to be struck out pursuant to Order 18 Rule 19(a), (b), (c) and/or (d) of the Rules of Court and/or the inherent jurisdiction of the court and for interlocutory judgment with damages to be assessed and;

(ii) an order that the Defendants be restrained from the publication, sale, offer for sale, distribution or other dissemination by any means whatsoever of the defamatory allegations, or other allegations to the same effect, in Singapore.

3 The Article was entitled “Singapore’s ‘Martyr’, Chee Soon Juan” and was written after an interview with Dr Chee Soon Juan (“CSJ”), the secretary-general of the Singapore Democratic Party (“SDP”).

4 On 30 August 2007, the Plaintiffs filed the present summonses (with supporting affidavits).

Combination of an O 14 Rule 1 application with an O 18 Rule 19 application

5 Before I proceed to deal with the substantive merits of the present summonses, I should address one preliminary point. This is the Defendants’ preliminary objection pertaining to the combination of an Order 14 Rule 1 application with an Order 18 Rule 19 application. The former is an application for summary judgment while the latter, in the present summonses, is an application to strike out substantial portions of the Amended Defences. After hearing submissions from both parties, I dismissed the Defendants’ objection.

6 In essence, it was submitted by Mr Peter Low (“Mr Low”), counsel for the Defendants, that there is a rule against combining Order 14 Rule 1 and Order 18 Rule 19 applications, premised apparently on the ground that each Order has a different procedure. Mr Low relied on the decision of Siti Norma Yaacob J in Wagon Engineering Sdn Bhd v Sulaiman Buloh Semenanjung Enterprise Sdn Bhd [1988] 2 CLJ 861 (“Wagon Engineering”), where she said (at 861):

At the outset, I need to point out that it is very important that the plaintiff should state categorically under which Order or Rule of the Rules of the High Court that it is proceeding with, so as to give the defendant due notice of the nature of the application to enable it to direct its mind as to the issues that are really in dispute. The plaintiff should elect whether it wished to proceed under 0.18 r.19 or under 0.14, but it cannot proceed on both.

However, with respect, the judgment of Yaacob J does not point to any rationale for the need to make this election.

7 Indeed, the learned judge went on to say at 861:

In this suit the application was filed 9 months after the Statement of Defence was filed and 3 months after the Summons for Directors [sic] were given and under such circumstances, I considered that the most appropriate application should have been under O.18 r.19 but since resort to O.14 is also pleaded in the alternative and considering that the hearing before me was in the nature of a rehearing, I had likewise proceeded to deal with the application in the alternative and heard submissions on both O.18 r.19 and O.14.

In my respectful view, this passage appears to contradict the earlier one requiring a plaintiff to elect between the two applications under O 14 r 1 and O 18 r 19 respectively.

8 Mr Low also relied on Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851 (“Mohd Azam Shuja”), a decision of the Malaysian Court of Appeal. In that case, the applications under O 14 and O 18 respectively were each pleaded as alternative prayers. Nonetheless, the court concluded that a plaintiff has to elect between the two applications. In his separate judgment, Zakaria Yatim JCA pointed to the “obvious” reasons why this is so. He said at 858:

I entirely agree with Siti Norma Yaakob J and Haidar J that a plaintiff cannot proceed with both prayers for striking out and for summary judgment in one application. The reasons are obvious. Firstly, under O 26A of the SCR the primary emphasis is on the affidavit. No defence need be filed. In an application under O 14 r 21 of the SCR, there must be a statement of defence. Secondly, in an application under O 26A, the court has to decide whether there are triable issues which ought to be tried.

In the present case, since there were two such prayers in one application, the sessions court ought to have proceeded with the application for summary judgment and not with the striking out application…

In the context of the quoted passage, “SCR” refers to the (Malaysian) Subordinate Court Rules 1980, “O 14 r 12 of the SCR” refers to the order that allows the court to strike out a statement of defence and “O 26A of the SCR” refers to the order that allows the court to grant summary judgment.

9 Similarly, N H Chan JCA in the same case said at 861:

In my judgment, I think that where there are two such applications in one summons-in-chambers, even though the applications are in the alternative (which, incidentally, means one or the other), the party applying has to elect as to which application he wishes to proceed on.This is because that since both the applications are the applicants’ and since it has been determined by this court in the present appeal that the two applications could not be proceeded on in the same summons in chambers, the summons would be dismissed unless the applicant elects as to which of the two applications he would wish to proceed on.

Siti Norma Yaakob JCA concurred with the view and reasons of N H Chan JCA.

10 On the other hand, Mr Davinder Singh SC (“Mr Singh”), counsel for the Plaintiffs, relied on the English position where apparently such combined applications are entertained. In this respect, Gatley on Libel & Slander (Sweet & Maxwell, 10th Ed, 2004) (“Gatley”) states at [30.31] that:

Striking out pleadings: CPR r.3.4(2). This rule, which is the successor to the old RSC Ord.18 r.19, enables the court to strike out a statement of case (or of course a part of it) if the statement of case (1) discloses no reasonable grounds for bringing or defending the claim, (2) is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings, or if (3) there has been a failure to comply with such a rule, practice direction or court order. The jurisdiction to strike out is frequently invoked in defamation, although applications under r.3.4(2)(a) are increasingly combined with applications for summary judgment under Pt 24, which has become the weapon of choice for the litigant seeking to shut out an issue. It is unclear what, if anything, such “double-barrelled” applications achieve: recent authorities tend to show that the court will politely note the r.3.4(2) application but actually decide the application under Pt 24… [emphasis added]

11 In addition, Mr Singh also submitted that he could not see any rationale for the rule requiring the Plaintiffs to elect.

12 I dismissed the Defendants’ objections for the following reasons. First, it must be noted that the process for summary judgment under the Malaysian SCR would not require the defendant to have filed his defence first before an application for summary judgment is filed. In contrast, our O 14 r 1 allows a plaintiff to apply for summary judgment to be made only after a defence is filed.

13 In any event, with respect, I did not agree with the rationale in Mohd Azam Shuja. The question is not so much whether a defence needs to be filed first or whether an application for summary judgment is based primarily on affidavits. Depending on the nature of the application to strike out, such an application may also largely depend on affidavits. True, it may be that the test is not always the same but often they overlap to the extent that a decision on one application will determine the outcome of the other. Thus, Gatley wonders about the purpose of such combined applications where the alternative application to strike out is really a mirror of the application for summary judgment.

14 However, there may be instances where the application to strike out is not such a mirror. The application to strike out may pertain...

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