Lee Kuan Yew v Tang Liang Hong and Another

• Jurisdiction: Singapore
• Judgment Date: 12 November 1997
• Date: 12 November 1997
• Docket Number: Civil Appeals Nos 63-64, 111-121
• Court: Court of Appeal (Singapore)

Tang Liang Hong

Plaintiff

and

Lee Kuan Yew and another and other appeals

Defendant

[1997] SGCA 52

M Karthigesu JA

,

LP Thean JA

and

G P Selvam J

Civil Appeals Nos 63-64, 111-121 and 135 of 1997

Court of Appeal

Civil Procedure–Pleadings–Striking out–Defences–Defendant not complying with peremptory order–Contumelious conduct justifying striking out–Constitutional Law–Natural justice–Bias–Apparent bias–Judge hearing defamation action had close professional connections with plaintiff–Applicant complied with orders made but subsequently applied for recusal–Judge dismissed application to recuse with strong words–Whether judge biased and should recuse himself–Time of allegation of bias material–Damages–Aggravation–Tort–Defamation–Principles applicable when more than one award made to plaintiff given common aggravating factors–Whether non-compliance with interlocutory orders justified enhancement of damages when alternative remedies available–Whether defendant's contempt of court orders justified enhancement of damages–Damages–Assessment–Tort–Defamation–Correct approach to assessment of damages–Principle of vindication–Whether chilling effect on political speech factor to be considered–Damages–Quantum–Tort–Defamation–Precedent cases–Precedent figure applied result of negotiations between parties and consent agreement–Whether correct for such to be applied as precedent–Totality principle–Principles applicable when two or more defamatory statements made of same person–Whether reference to be had to personal injury awards–Legal Profession–Duties–Client–Wasted costs–Client instructed advocate to pursue unmeritorious application–Whether advocate liable to client for wasted costs–Court–Wasted costs–Client instructed advocate to pursue unmeritorious application–Advocate under duty to court to be conscientiously satisfied that there was material to proceed with application–Advocate concluded erroneously in circumstances such material existed–Whether advocate liable to show cause in wasted costs order–Tort–Defamation–Publication–Republication–Politician made police report against political opponents–Media obtained copy of report and published it–Whether republication natural and foreseeable consequence of making police report–Whether politician liable for republication–Politician gave interview to newspaper subsequently republished by other media–Politician denying liability for republication–Whether liability for republication to be ascertained only at trial

This was a set of appeals arising from a series of defamation actions instituted by the 11 respondents, members of the ruling political party, against the appellant, who was a member of an opposition party and also a senior advocate and solicitor, for defamatory remarks made in a Chinese language magazine, in an interview with The Straits Times, and at an election rally.

In The Straits Times interview, the appellant had, in response to the reported assurance of the Prime Minister (one of the respondents) that he would not be arrested for defamatory remarks made at the election rally, said, “Do you think I should believe them?” This was reproduced in various other media. Prior to that, he had lodged two police reports against the respondents alleging that they had defamed him in his political standing. The media then obtained and published the reports.

Shortly after the commencement of the suits, the respondents successfully joined the appellant's wife as the second defendant in the actions on the basis that the appellant's assets were held by her. They also applied for a worldwide Mareva injunction restraining the appellant and his wife from disposing of their assets in and outside Singapore, and for the appointment of a receiver over the couple's assets. Both were granted, with the receivership order being in the nature of a peremptory order to effect that failure to comply entitled the plaintiffs to be at liberty to apply for the defence to be struck out.

The appellant initially applied for extension of time to comply with these orders, but subsequently filed an application to disqualify the first instance judge and to set aside the Mareva injunction and the receivership order (“the disputed orders”) on the ground of apparent (but not actual) bias. The first instance judge was alleged to have a close professional relationship with the first respondent, a very senior member of the ruling political party; the first instance judge's “vituperative” comments against the appellant in dismissing his application were further relied on to establish apparent bias. The application was heard by the first instance judge in chambers, who in response to the turn of events transferred hearing to open court. It was dismissed with costs on an indemnity basis. The first instance judge further ordered the appellant's counsel to show cause why he should not be made personally liable to pay the costs of the unsuccessful application.

The appellant's defences in the defamation suits were struck out by the first instance judge and another High Court judge in two separate proceedings, the first for disclosing no reasonable defence to the claim in question and the second for want of compliance with the receivership order. In the second, neither the appellant nor his counsel had provided the court with an explanation for non-compliance with the order.

Subsequently, all 13 actions went before yet another High Court judge for assessment of damages, who awarded damages in favour of each of the plaintiffs (reported in Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR (R) 81) to a total of $8.075m. The highest individual awards made by the trial judge were higher than the hitherto-highest award of $400,000 in precedent cases in Singapore, as the trial judge held that the aggravating factors in the instant case were unprecedented.

The appeals were: (a) against the decision of the first instance judge refusing to recuse himself, for which the main issues were whether there was any apparent bias on the part of the trial judge, and whether the appellant's counsel should be made to show cause why he should not pay the costs of the application for recusal; (b) against the decisions for the defence of the appellant to be struck out; and (c) the excessive quantum of damages.

Held:

(1) The crux of the issue in the application for recusal was whether at the times the judge granted the disputed orders there was any apparent bias. As at the time or immediately after the disputed orders were granted, there was no allegation by the applicant of any bias, actual or apparent, and he on the contrary applied for an extension of time to comply with the same. It was in the course of dismissing the application for recusal that the judge made those severe criticisms of the applicant. In these circumstances, these comments could not be relied on as evidence of apparent bias in relation to the disputed orders. A reasonable and fair-minded person sitting in court, equipped with all the relevant knowledge of the case and the surrounding circumstances, would not have any suspicion that the judge was biased when he made the disputed orders. The disputed orders therefore remained valid: at [66] and [67].

(2) Pertaining to the order to show cause, the question was whether counsel's conduct in the application, was, prima facie, unjustifiable, taking into account all the relevant circumstances. Although the counsel's client's application was unsustainable on the merits, the application was one which counsel acting on the client's instructions was obliged to pursue. Even if counsel had thought that his client's case was hopeless, it could not be said that he had acted improperly, unreasonably or negligently, such as to allow the court to exercise its jurisdiction to make a show cause order: at [71], [72] and [79].

(3) As the question of republication was no longer in issue on the facts, the appeal for the striking out of the defence on the grounds of it being unsustainable was to be dismissed: at [94] and [95].

(4) In the absence of good reasons, disobedience of a peremptory order was generally to be treated as contumelious conduct which justified striking out the defences of the party subject to it: at [101].

(5) Non-compliance with the terms of a Mareva injunction and receivership order, and the frivolous and vexatious attempt to set the same aside on the ground of apparent bias, were irrelevant to the issue of damages in the separate defamation action, as the plaintiffs to the defamation action had alternative remedies to invoke. The defendant's conduct in treating the orders of court with contempt and in uttering scandalous remarks about the courts also had no relevance to the issue of damages: at [133] to [135].

(6) Where two or more defamatory statements were made of the same person, though each conveying a different defamatory imputation, and there existed a close relationship between them, there would inevitably be some degree of overlap and the court must look at the totality of all the awards and moderate the quantum of the individual awards so that, in the end, it would yield a sum appropriate to compensate the plaintiff for the aggregate harm and injury occasioned by the combined or cumulative effect of the defamatory statements: at [137].

(7) Where more than one award were to be made to a plaintiff in a defamation action, and the same set of aggravating factors were to be applied in assessing each award in favour of the same plaintiff, it inevitably gave rise to “double” or “multiple countings” of the aggregate aggravating circumstances, the totality of the awards to such a plaintiff would be hugely disproportionate to the aggregate harm and injury occasioned. Further, as the same set of defamatory statements by themselves formed the separate subject matters of the multiple actions in respect of which separate awards of damages were made, each of these statements...