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

• Judge: Sundaresh Menon JC
• Judgment Date: 21 February 2007
• Neutral Citation: [2007] SGHC 24
• Published date: 23 February 2007
• Subject Matter: Order 11 r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Order 11 r 4(1), O 11 r 4(2) Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether invoking jurisdiction of court,Burden of proving service of process effected in appropriate manner lying on respondents as plaintiffs,Section 16(1) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Service,Whether treaty concluded between People's Republic of China and Singapore applying to Hong Kong,Whether claims for damages and injunctive relief contained in writs confined to damages sustained or actions taken within Singapore,Civil Procedure,Whether order granting leave should be set aside as abuse of process of court,Whether civil procedure convention subsisting between Singapore and Hong Kong,Leave to serve writs out of jurisdiction granted,Whether burden remaining on respondents when challenge to jurisdiction brought
• Year: 2007
• Plaintiff Counsel: Peter Cuthbert Low (Peter Low Partnership)
• Court: High Court (Singapore)
• Defendant Counsel: Davinder Singh SC, Wilson Wong, Jaikanth Shankar (Drew & Napier LLC)
• Citation: [2007] SGHC 24

21 February 2007 Judgment reserved

Sundaresh Menon JC:

1 In what Thomas Friedman terms a “flattening world”, accessibility to instruments of mass media and communication – in particular, the internet – is dramatically shortening the globe’s communicative synapses and greatly increasing the potential reach and impact of any individual idea or expression. Such accessibility gives rise to power which holds promise but it also portends abuse. The transformation in how we transmit and receive information and ideas inevitably has important implications for the law. One illustration of this may be found in the increasingly common occurrence of defamation suits that straddle more than one jurisdiction. The archetypal case is one where the publisher of the allegedly defamatory words is resident in one jurisdiction while the impact of those words sounds in another (or many other) jurisdiction(s). The present appeals before me involve precisely this situation.

2 The road to pressing a claim for defamation against a foreign defendant can be a long one. For a plaintiff who alleges that certain publications are defamatory of him in his home jurisdiction, among the first steps to be taken in commencing proceedings against the foreign publisher is the need to obtain the leave of court to serve the writ out of the jurisdiction. This seemingly simple step can become somewhat involved. The plaintiffs (who are the respondents in the present appeals) did obtain leave and did effect service on the defendants (who are the appellants) but the validity of these efforts is now challenged. It is said first, that their claims do not fall within the ambit of O 11 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) so that leave to serve out of the jurisdiction could not validly have been given. Second, it is said that service of the writs was not effected in an appropriate manner. These issues in turn give rise to some ancillary but significant issues concerning the burden of proof and the separation of powers.

The factual background

3 The facts leading to the present appeals are relatively straightforward and are not contested. The respondents in these appeals are, respectively, the Prime Minister and the Minister Mentor of Singapore. The first appellant is the publisher of the Far Eastern Economic Review (“the Review”), a current affairs magazine that has an international circulation. The second appellant, Mr Hugo Restall, is the editor of the Review and, notably, the author of an article entitled “Singapore’s ‘Martyr’, Chee Soon Juan”, published in the July/August 2006 issue of the Review at pp 24–27 (“the disputed article”). This article was also published in the web version of the Review accessible on the internet, without charge, to any who bothered to visit the website. The respondents took offence at the contents of the disputed article, and having failed to reach an acceptable settlement with the appellants, they each commenced separate actions in Suits Nos 539 and 540 of 2006 against the Review and Mr Restall.

4 Because the Review is a company incorporated in Hong Kong and Mr Restall is ordinarily resident in Hong Kong and because both appellants declined to accept service in Singapore voluntarily, it was necessary for the respondents to serve the writs out of the jurisdiction. The respondents applied for leave to do so and their applications were granted on 28 August 2006. Service was effected by a process server on 4 September 2006 by personally serving Mr Restall and by leaving copies of the writs of summons, statements of claim and relevant court orders at the registered address of the Review. On 23 September 2006, the Review and Mr Restall entered appearance for the purpose of disputing the jurisdiction of the court pursuant to O 12 r 7 of the Rules.

5 It was accepted by the appellants before me that the challenge against the jurisdiction of this court in the final analysis rested on two main points. The first was whether the order granting leave to serve the writs out of the jurisdiction ought to be set aside as an abuse of the process of the court because the claims for damages and for injunctive relief contained in the writs were allegedly not confined to damages sustained or actions taken within Singapore. The second point of contention was that even if leave to serve the writs out of the jurisdiction had been properly granted, the writs had not been served in an appropriate manner because service had not been effected in accordance with the Treaty on Judicial Assistance in Civil and Commercial Matters between the Republic of Singapore and the People’s Republic of China (Government Gazette T2/2001, 28 December 2001) (“the Treaty”).

6 Before the assistant registrar, the appellants’ challenge was dismissed but with a slight reservation. While the assistant registrar was satisfied that it was sufficiently clear that the claims for damages were confined to losses arising from the publication of the disputed article in Singapore, she sought and obtained an undertaking from counsel for the respondents to limit the reach of any injunctive relief sought to Singapore. As to whether service of process had been effected properly, the assistant registrar found in favour of the respondents. Dissatisfied, the appellants filed these appeals against the whole of the assistant registrar’s decision.

Preliminary points

Application to permit foreign counsel to attend the hearing in chambers

7 Before the hearing of the appeals commenced, the appellants applied for permission for one Mr Tim Robertson SC from New South Wales, Australia to sit in at the hearing of the appeals, which (as is the norm for Registrar’s Appeals) was conducted in chambers. According to Mr Peter Cuthbert Low, who appeared for the appellants, Mr Robertson had been retained by the appellants from the onset of the proceedings against them and acted as their lead legal advisor. Mr Low submitted that he had been instructed as Singapore counsel by Mr Robertson. Mr Davinder Singh SC, who appeared for the respondents, objected to Mr Robertson’s attendance. He submitted that the application raised a question, first of principle and only then of discretion. Mr Singh submitted in effect that hearings in chambers were private. While permission to attend a hearing in chambers might be extended to one who was an employee or an agent of a litigant, Mr Robertson was neither. He accordingly submitted that there was no basis in principle to permit Mr Robertson’s attendance.

8 I accept that the starting point of the analysis is that hearings in chambers, unlike proceedings in open court, are private in nature. Thus, members of the public have no entitlement to attend proceedings in chambers. Mr Robertson however sought permission to attend the present appeals not in his capacity as a member of the public but as a legal adviser to the appellants. In my judgment, Mr Robertson’s interest in these proceedings was sufficient to bring him within the class of persons in whose favour I could conceivably have exercised my discretion. In fact, as I informed Mr Singh, I myself, as foreign counsel, have had the benefit of the courtesy of being allowed to attend proceedings in chambers with Singapore counsel extended to me.

9 Mr Singh then submitted that I should not exercise my discretion in Mr Robertson’s favour. He submitted that in considering the exercise of my discretion, it was appropriate to have regard, among other things, to the identity of the particular individual seeking permission to attend and the risk that the dignity or authority of the court might be compromised by that person, if he was allowed to attend. In this regard, Mr Singh drew my attention to an article published in the Sydney Morning Herald on 22 November 2005 headlined “We should impose sanctions: lawyer”, in which Singapore’s decision to execute a convicted drug trafficker, Nguyen Tuong Van, was criticised. Mr Robertson was quoted in the report as characterising Singapore as an “authoritarian regime” and pointedly remarking that “the present Singapore is controlled by the Government, as is the judiciary, and so in cases which have a political element in them the odds are stacked well and truly against the opponents of the regime”.

10 Mr Singh made two submissions on this. First, he submitted that Mr Robertson had manifested a proclivity to make such statements which were ill-founded and disrespectful of the judiciary, and in view of this, the court should not be placed in the position of having to respond to or defend itself in the face of any further remarks of a similar vein that Mr Robertson might make if he was permitted to attend the hearing in chambers. Secondly, Mr Singh submitted that inasmuch as the court was being asked to exercise its discretion, there was no reason at all for it to do so in favour of one who maintained a position that was openly disrespectful, even contemptuous, of the court. As Mr Singh put it: why open our doors to one whose mind was already shut?

11 Mr Low, in response, informed me that he had no knowledge of the remarks that had been reported in the article in question in the Sydney Morning Herald and attributed to Mr Robertson. I therefore stood the matter down for Mr Low to take instructions as to whether Mr Robertson had indeed made those remarks and whether he continued to stand by them. When we resumed, Mr Low informed me that Mr Robertson had made no adverse statements concerning the judiciary in relation to the present proceedings. As I pointed out to Mr Low, that, of course, was not my inquiry. Mr Low then confirmed that Mr Robertson did not deny making those statements. Nor, it appeared, was Mr Robertson inclined to withdraw or resile from those statements. Mr Low urged me to have regard to the fact that Mr Robertson came from a jurisdiction where the right to attend a hearing in chambers was not controversial. He further submitted that for someone with...