Lee Hsien Loong v Leong Sze Hian

• Court: High Court (Singapore)
• Judge: Aedit Abdullah J
• Judgment Date: 12 March 2019
• Neutral Citation: [2019] SGHC 66
• Citation: [2019] SGHC 66
• Docket Number: Suit No 1185 of 2018 (Summonses Nos 148 and 428 of 2019)
• Hearing Date: 25 February 2019
• Plaintiff Counsel: Davinder Singh S/O Amar Singh SC, Lim Xianyang Timothy and Fong Cheng Yee, David (Drew & Napier LLC)
• Defendant Counsel: Lim Tean (Carson Law Chambers)
• Subject Matter: Civil Procedure,Striking out
• Published date: 03 October 2019

Aedit Abdullah J: Introduction

These applications arise out of Suit No 1185 of 2018 (“the Suit”), a claim in defamation which concerns the sharing of an article entitled “Breaking News : Singapore Lee Hsien Loong Becomes 1MDB’s Key Investigation Target – Najib Signed Several Unfair Agreements with Hsien Loong In Exchange For Money Laundering” (“the Article”). The defendant in the Suit shared a link to the Article on his Facebook Timeline for three days, during which period his Facebook post garnered multiple “likes”, “reactions” and “shares”.

The present applications are: Summons No 148 of 2019 (“SUM 148/2019”) – an application to strike out the defendant’s counterclaim in the Suit; and Summons No 428 of 2019 (“SUM 428/2019”) – an application to strike out the plaintiff’s claim in the Suit.

Having considered the affidavits and arguments, I allow the striking out of the defendant’s counterclaim, which is precluded by binding Court of Appeal authority, and dismiss the application to strike out the plaintiff’s claim, as there is sufficient basis to allow the matter to proceed to trial.

Facts The parties

The plaintiff in the Suit and the defendant in the counterclaim (“the plaintiff”) is the current Prime Minister of Singapore.¹

The defendant in the Suit and the plaintiff in the counterclaim (“the defendant”) describes himself as a human rights activist and Government critic.² His Facebook profile page bears his name. The defendant had 5,000 Facebook “friends” and 149 Facebook “followers” at the material time.³

Background to the dispute The allegedly defamatory Post

On or around 7 November 2018, the Article was published on “The Coverage”, which describes itself as a Malaysian-based social news network. The Article stated that ongoing Malaysian investigations concerning Malaysia’s state fund, 1Malaysia Development Berhad (“1MDB”), were “trying to find the secret deals between the two corrupted Prime Ministers of Singapore and Malaysia”. This referred to the plaintiff and former Malaysian Prime Minister Mr Najib Razak respectively. The Article referenced “several unfair agreements” that Mr Najib Razak had entered into with the plaintiff, including the agreement to build the Singapore-Malaysia High Speed Rail, and included other details about the alleged investigations.⁴

On 7 November 2018 at about 6.16pm, the defendant shared a link to the Article on his Facebook Timeline (“the Post”). The Timelines on users’ profile pages serve as records of their Facebook activity. Among other functions, the Timeline showcases a user’s posts in rough reverse chronological order. The defendant did not include any accompanying text in the Post. The Post displayed part of the Article’s title, as shown below:⁵

As at 10.16pm on 7 November 2018, the defendant’s Post attracted 22 “reactions”, five “comments” and 18 “shares”.⁶ The defendant removed the Post from his Facebook page at about 7.30am on 10 November 2018, after he read a notice from the Info-communications Media Development Authority (“IMDA”) that had been sent to him at around 11.00pm on 9 November 2018.⁷

Government and media response

Media outlets covered the Article over 8 and 9 November 2018, quoting the Article’s title and discussing its contents. On 8 November 2018, the Straits Times reported responses by the Law and Home Affairs Minister Mr K Shanmugam and the High Commission of the Republic of Singapore in Malaysia that refuted the Article and its contents.⁸

On 9 November 2018, the Straits Times reported that:⁹ the Monetary Authority of Singapore had filed a police report in respect of a similar article published on 5 November 2018 on the Straits Times Review (“the STR”), a website that claims to be an Australia-based blog covering Singapore news; and IMDA had issued a statement that the article on the STR’s website was “baseless and defamatory”.

Procedural history

The plaintiff filed the writ of summons in the Suit on 20 November 2018, suing the defendant for defamation. The plaintiff claimed that the offending words in the Article and Post, in their natural and ordinary meaning, respectively meant and were understood to mean that: the plaintiff corruptly used his position as Prime Minister to help Mr Najib Razak launder 1MDB’s Billions (“the offending words in the Article”); and the plaintiff was complicit in criminal activity relating to 1MDB (“the offending words in the Post”).

The plaintiff claimed that these offending words were false and baseless and were calculated to disparage and impugn the plaintiff in his office as the Prime Minister.¹⁰

The defendant filed his defence and counterclaim in the Suit on 26 December 2018. The defendant’s counterclaim was premised on the tort of abuse of process as the relevant cause of action.

On 9 January 2019, the plaintiff pleaded in his defence to the counterclaim that the counterclaim did not disclose a reasonable cause of action. The plaintiff filed SUM 148/2019 on the same day. On 25 January 2019, the defendant filed SUM 428/2019.

My decision

Having considered parties’ submissions, I allow the application in SUM 148/2019: the counterclaim should be struck out as it discloses no reasonable cause of action. I dismiss the application in SUM 428/2019: the claim discloses triable issues and should be permitted to proceed to trial.

I will address the two applications in turn, laying out parties’ respective cases and the detailed reasons for my decision.

SUM 148/2019: Striking out the counterclaim The parties’ cases The plaintiff’s case

The plaintiff relied on O 18 r 19(1)(a) of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) to argue that the counterclaim should be struck out on the basis that it does not contain a “reasonable cause of action”. A “reasonable cause of action” is one that has “some chance of success when only the allegations in the pleading are considered”: Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [21]. A claim based on a cause of action that is not recognised at law will be struck out for disclosing no reasonable cause of action: TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch) and another [2015] 2 SLR 540 at [55] and [57].¹¹

The defendant relied on the tort of abuse of process to mount his counterclaim. However, the five-member Court of Appeal unequivocally rejected the tort of abuse of process as a recognised cause of action in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] 2 SLR 866 (“Lee Tat”) at [161]. The Court of Appeal stated that recognition would:¹² undermine the principle of finality in the law, by encouraging unnecessary satellite litigation and prolonging disputes: at [151]–[153]; open the floodgates of litigation: at [154]; and create a chilling effect on regular litigation: at [156].

In any case, civil procedure mechanisms afford innocent parties adequate legal remedies in the event of abuses of process. For instance, a plaintiff can apply for summary judgment against a defendant pursuant to O 14 of the ROC: at [157]–[159].

Sunbreeze Group Investments Ltd and others v Sim Chye Hock Ron [2018] 2 SLR 1242 (“Sunbreeze”) applied Lee Tat two months after it was decided. At [37], the Court of Appeal reiterated its finding in Lee Tat that the tort of abuse of process is not recognised in Singapore.¹³

Accordingly, as the defendant’s counterclaim discloses no recognised cause of action, let alone a reasonable one, it should be struck out.

The plaintiff sought costs on an indemnity basis. The defendant had known about the decision in Lee Tat when he filed the counterclaim. Knowingly pursuing a hopeless claim is a factor that might lead to an award of indemnity costs: Tan Chin Yew Joseph v Saxo Capital Markets Pte Ltd [2013] SGHC 274 at [99], citing Three Rivers District Council v The Governor and Co of the Bank of England (No 6) [2006] EWHC 816 (Comm) at [25]. Wholly unmeritorious conduct could also lead to an award of indemnity costs: Anne Joseph Aaron (m w) and Others v Cheong Yip Seng and Others [1995] SGHC 131.¹⁴

The defendant’s case

The defendant submitted that the Court of Appeal should reconsider the position it took in Lee Tat as to whether the tort of abuse of process exists in Singapore law. The present case can be distinguished as it involves the constitutional right of freedom of expression under Art 14(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Lee Tat had not been concerned with this issue.¹⁵

Furthermore, Lee Tat had failed to address whether the tort of abuse of process should apply in exceptions where there is an abuse of a public function. The defendant drew an analogy to the tort of malicious prosecution, which the Court of Appeal noted at [91] is a “tool for constraining the arbitrary exercise of the powers of public prosecuting authorities”, citing Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 at [145]. Lee Tat had declined to extend the tort of malicious prosecution to civil claims generally (at [91]), but accepted that the tort could apply in special and limited circumstances where there has been an abuse of a public function (at [96]).

On this basis, the defendant argued that the Court of Appeal should have held that the tort of abuse of process would be available in the same limited circumstances where there is a need to restrain the abuse of a public function in situations where freedom of expression is exercised in the private sphere.¹⁶

Whether a reasonable cause of action exists The ruling in Lee Tat

I am satisfied that the Court of Appeal’s decision in Lee Tat is binding on me and that the doctrine of stare decisis applies. Lee Tat precludes the defendant’s counterclaim from succeeding. The Court of Appeal was emphatic at [161] that the...