Lee Hsien Loong v Leong Sze Hian

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Aedit Abdullah J
• Judgment Date: 24 March 2021
• Docket Number: Suit No 1185 of 2018

Lee Hsien Loong

and

Leong Sze Hian

[2021] SGHC 66

Aedit Abdullah J

Suit No 1185 of 2018

General Division of the High Court

Tort — Defamation — Damages — Principles applicable to determination of appropriate damages — Factors warranting uplift to quantum of damages identified — Burden of proof in showing extent and reach of publication through online posting of Facebook post — Principles applicable to determining damages for defamatory content posted online

Tort — Defamation — Publication — Publication of Facebook post (“Facebook Post”) consisting of hyperlink linking to separate article — Whether separate article could be said to have been published or republished by person who posted Facebook Post — Application of doctrine in Jameel v Dow Jones & Co Inc[2005] QB 946 — Application of rule in Derbyshire v Times Newspapers Ltd[1993] AC 534 — Determining whether there had been abuse of process in claim for defamation — Relevance of collateral purpose(s), if any

Held, allowing the claim:

(1) A defendant who elected to make a submission of no case to answer had to make an accompanying election not to call evidence in the event that submission failed. The defendant here had so elected. Following from that, the plaintiff would succeed so long as he was able to establish a prima facie case on each of the essential elements of his claim. It was only if: (a) the plaintiff's evidence, at face value, did not establish a case in law, or (b) the evidence led by the plaintiff was so unsatisfactory or unreliable that his burden of proof had not been discharged that a submission of no case to answer by a defendant would succeed: at [19] and [20].

(2) An adverse inference could generally be properly drawn if there was something in the evidence that effectively demanded an answer or response from the defendant, such as where the evidence all pointed to him and it was apparent that things could be made clear simply through his evidence coming in. It would otherwise be rare for an adverse inference to be drawn. An adverse inference did not automatically arise simply because of a submission that there was no case to answer, and could not be drawn on the present facts: at [23].

(3) The ordinary reasonable person would possess general knowledge that there was wrongdoing in the affairs of 1MDB, and the phrase “Lee Hsien Loong becomes 1 MDB's key investigation target” clearly suggested that the plaintiff was involved at the heart of the 1MDB-related wrongdoing. The defendant's Post extracting part of the title of the Article, and the Article itself, attracted the meaning that the plaintiff was corrupt and, at the very least, implicated in the wrongdoing associated with 1MDB: at [25] and [29].

(4) There had been publication by the defendant of the Post. The defendant conceded as much. There had also been “substantial” publication, which referred to publication to a “sufficient number [of readers] to justify judgment for damages”. This simply meant that there had to have been a real and substantial tort: at [36].

(5) On one view, there was no publication, because all that was in fact published was the bare hyperlink, which on clicking, would bring the reader elsewhere. This was the position taken in Canada, that the use of a hyperlink could not, by itself, amount to publication. The court declined to adopt it in Singapore as it did not provide for close examination on the facts of what a bare hyperlink, with no added commentary, might convey in all the circumstances. A more holistic assessment ought to be preferred, which made it clear that the Article should be construed as part of the Post: at [40] to [42].

(6) There was also a “platform of facts” that gave rise to at least a prima facie case that the Article had been accessed through the link in the Post in an intelligible form. Some of the considerations forming the basis for this platform of facts included: (a) the number of “likes”, “shares”, “reactions” and comments which a post drew, (b) the number of “friends” and “followers” the poster had on the relevant social media platform, and (c) the privacy settings of the relevant post. On the facts, it was exceedingly unlikely that it could seriously be the case that not a single person accessed the Article through the link in the Post: at [45] and [46].

(7) Loss was caused by the defamatory words. The plaintiff's reputation was harmed irrespective of the actions or statements of the government agencies and ministers: at [60].

(8) The Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) (“POFMA”) did not alter the law of defamation in Singapore. Given the stated purpose of the POFMA, and in particular the clear indication in the Ministerial speeches during the Second Reading of the Protection from Online Falsehoods and Manipulation Bill (Bill No 10/2019) that the Act was not intended to alter the law of defamation, that conclusion was clear: at [49] and [52].

(9) Article 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (the “Constitution”) also did not assist the defendant. While Art 14(1)(a) of the Constitution protected freedom of speech, it was expressly subject to such restrictions as might be imposed by law by Parliament, including those which protected against defamation: Art 14(2)(a): at [56].

(10) The defendant sought to argue that the plaintiff had brought this suit in abuse of process, relying on the doctrine in Jameel (Yousef) v Dow Jones & Co Inc[2005] QB 946, the rule in Derbyshire v Times Newspapers Ltd[1993] AC 534, and an accusation that the plaintiff was acting for the collateral purpose of “trying to silence a critic”. None of these assisted the defendant: at [67] to [71], [79], [80] and [82].

(11) Substantial damages were warranted. The relevant considerations in determining the quantum of damages included: (a) the plaintiff's reputation, (b) the standing of the defendant, (c) the reach of the Article, (d) whether the defendant had aggravated the libels, and (e) whether the defendant acted with malice. On the facts, even though the Article had a lower reach than the defamatory material in Lee Hsien Loong v Ngerng Yi Ling Roy[2016] 1 SLR 1321 (“Roy Ngerng”), the defamatory statement in the present case was worse. Accordingly, an award of S$100,000 in general damages, as was ordered in Roy Ngerng, was warranted. As for the quantum of aggravated damages, there was a more limited basis to award such damages on the instant facts, and it would thus suffice to award roughly a third of the general damages, or about S$33,000, for a total quantum of S$133,000: at [88], [91], [105], [116], and [121].

(12) What had been shown by the plaintiff in this case did not warrant the grant of an injunction. While the defendant had not apologised, he also had not demonstrated any risk of resuming the publication of the defamatory material. The greater threat of continued publication would arguably be from the originators of the article rather than this defendant, who had swiftly complied with the IMDA notice once it had been issued: at [127].

Case(s) referred to

ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (folld)

Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86; [2001] 1 SLR 505 (folld)

Bailey v Bottrill (No 2) [2019] ACTSC 167 (refd)

Bank of China v Asiaweek Ltd [1991] 1 SLR(R) 230; [1991] SLR 486 (refd)

Bansal Hemant Govindprasad v Central Bank of India [2003] 2 SLR(R) 33; [2003] 2 SLR 33 (refd)

Bolton v Stoltenberg [2018] NSWSC 1518 (refd)

Broome v Cassell and Co Ltd [1972] AC 1027 (refd)

Caine v Advertiser and Times Ltd [2019] EWHC 2278 (QB) (refd)

Chan Boon Siang v Jasmin Nisban [2018] 3 SLR 498 (refd)

Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (refd)

Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 (refd)

Cheah Cheng Hoc v Liew Yew Tiam [2000] 6 MLJ 204 (refd)

Collins Stewart Ltd v The Financial Times Ltd [2006] EMLR 5 (refd)

Crookes v Newton [2011] 3 SCR 269 (not folld)

Daniel Poulter v Times Newspapers Ltd [2018] EWHC 3900 (QB) (refd)

Derbyshire v Times Newspapers Ltd [1993] AC 534 (distd)

Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 (folld)

Goh Chok Tong v Jeyaretnam Joshua Benjamin [1997] 3 SLR(R) 46; [1998] 1 SLR 547, HC (refd)

Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 2 SLR(R) 971; [1998] 3 SLR 337, CA (refd)

Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362 (refd)

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (distd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1979–1980] SLR(R) 255; [1978–1979] SLR 197, CA (refd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1990] 1 SLR(R) 337; [1990] SLR 38, CA (refd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791; [1992] 2 SLR 310, CA (refd)

Koh Sin Chong Freddie v Chan Cheng Wah Bernard [2013] 4 SLR 629 (folld)

L K Ang Construction Pte Ltd v Chubb Singapore Pte Ltd [2003] 1 SLR(R) 635; [2003] 1 SLR 635 (refd)

Lait v Evening Standard Ltd [2011] 1 WLR 2973 (refd)

Lee Hsien Loong v Leong Sze Hian [2019] SGHC 66 (refd)

Lee Hsien Loong v Ngerng Yi Ling Roy [2016] 1 SLR 1321, HC (refd)

Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230 (refd)

Lee Hsien Loong v Singapore Democratic Party [2007] 1 SLR(R) 675; [2007] 1 SLR 675, HC (refd)

Lee Hsien Loong v Singapore Democratic Party [2009] 1 SLR(R) 642; [2009] 1 SLR 642, HC (folld)

Lee Kuan Yew v Davies Derek Gwyn [1989] 2 SLR(R) 544; [1989] SLR 1063 (refd)

Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1979–1980] SLR(R) 24; [1978–1979] SLR 429 (refd)

Lee Kuan Yew v Seow Khee Leng [1988] 2 SLR(R) 252; [1988] SLR 832 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 81; [1997] 3 SLR 91 (refd)

Lee Kuan Yew v Vinocur John [1995] 3 SLR(R) 38; [1995] 3 SLR 477 (folld)

Lena Leowardi v Yeap Cheen Soo [2015] 1 SLR 581 (refd)

Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004; [2009] 2 SLR 1004, HC (refd)

Lim Eng Hock Peter v Lin Jian Wei [2010] 4...