Lee Kuan Yew v Tang Liang Hong and Another and Other Actions
|Lai Kew Chai J
|21 March 1997
| SGHC 67
| SGHC 67
|JB Jeyaretnam (JB Jeyaretnam & Co),Daniel John (John and Tan)
|19 September 2003
|Tan Kok Quan SC and Marina Chin (Lee & Lee),Davinder Singh SC and Hri Kumar (Drew & Napier),Giam Chin Toon SC and Chiah Kok Khun (Wee Swee Teow & Co),K Shanmugam and Ashok Kumar (Allen & Gledhill),Wong Meng Meng SC and Nishith Shetty (Wong Partnership),Harry Elias SC and Michael Palmer (Harry Elias & Partners)
|29 May 1997
|Suits Nos 2523, 2524, 2525 and
|High Court (Singapore)
|Whether there was real bias,Whether application should be heard by judge concerned or another judge,Disqualification,Whether there was apparent bias,Whether application should be heard in open court,Civil Procedure,Judge,Trial
On 10 March 1997 I heard two applications before me, one by each of the defendants, to disqualify me from hearing these 12 actions and all connected applications.
As it transpired, the underlying purpose of the applications was to attack and invalidate the Mareva and receivership orders I made on 27 January and 17 February 1997 respectively. The first defendant, Tang Liang Hong, failed to comply with the Mareva injunctions. Whilst keeping himself out of Singapore he deliberately misrepresented several of my orders and severely criticised the orders as unfair and unjust. The normal and only course he should have taken, as he well knew, was to have applied to set aside or vary the orders, failing which he could have appealed to the Court of Appeal to reverse the world-wide Mareva orders.
In the face of such recalcitrance, the plaintiffs, not unexpectedly, applied for the appointment of a receiver, an officer of the court, on the grounds that such appointment was unavoidably necessary to enforce the Mareva orders. I could not countenance Tang Liang Hong`s contumelious and flagrant disobedience of the court`s orders and appointed a receiver. The receiver was given the task of identifying, securing and preserving Tang Liang Hong`s assets to await the outcome of the actions. He was given the necessary powers to carry out his mandate.
In relation to the Mareva and receivership orders I had published my grounds of judgment on 30 January and 20 February 1997 respectively. As will be seen in the second judgment, I specifically drew his attention to the fact that if he continued to defy my orders he ran the serious risk of having his defences struck out and judgments entered against him. In fact, he needed no reminder. As a lawyer of 29 years` standing, he knew that no legal system in any civilised community could accord its adjudicative facilities to a litigant, let alone a lawyer and an officer of the court, who openly disobeyed, defied and cast aspersions on the integrity of the courts.
On 21 February 1997 Tang Liang Hong applied to me for an extension of time to 3 March 1997 within which to comply with the Mareva and receivership orders. His counsel Mr JB Jeyaretnam told me that Tang Liang Hong would comply with the orders and, in particular, file a list of all his assets world-wide. Through his counsel he pleaded for more time to comply. Counsel said that Tang Liang Hong was hard pressed. The request for more time was resisted by each and every plaintiff in these 12 actions. Their counsel pointed out the continuing disobedience and lack of any explanation from him. They submitted that this was characteristically another ploy to delay matters. However, I granted Tang Liang Hong extension of time to 3 March 1997
But on 3 March 1997 Tang Liang Hong did not take a single step to obey any of the orders made in the Mareva and receivership proceedings. Instead, on the same day he filed this most unusual application to disqualify me from hearing the 12 actions and to quash the Mareva and receivership orders on the ground that I was biased. I will later in my judgment deal with each and every one of his grounds.
The application was by summons-in-chambers entered as No 1502/97. Procedurally, nearly all such summonses are heard in chambers. The public is usually not allowed to sit in at chamber hearings. It was fixed for hearing on 5 March 1997. At the very beginning of the hearing in chambers, Mr JB Jeyaretnam applied for the matter to be heard in open court. He submitted that it was a matter of `public interest`. Ordinarily, I would have acceded to his request. I recognised that defamation suits between politicians do attract public attention and media coverage. Representatives of the media, both local and foreign, were in fact milling outside the courtroom.
However, I decided not to accede to Mr Jeyaretnam`s request. The reasons were these. After I had read the affidavit of Tang Liang Hong in support of his application to disqualify me, I found his sworn affidavit to be completely inaccurate in so far as they were assertions of fact and utterly untenable in so far as they were submissions. For introductory purposes I shall be brief.
First, all his assertions of fact alleging my close relationship with SM Lee were seriously inaccurate in every material particular. My associations with Messrs Lee & Lee, which was founded by SM Lee and which I left 16 years ago to be a judge of the Supreme Court, were again revisited, although Mr Jeyaretnam`s attack of a similar kind on 2 July 1990 was rejected by the Court of Appeal in Jeyaretnam Joshua Benjamin v Lee Kuan Yew  2 SLR 310.
Secondly, Tang Liang Hong had mis-characterised the issues in Suit No 1116/96 by suppressing his own critical averments in his re-amended defence by which he repeatedly claimed that he was not suggesting that SM Lee Kuan Yew and DPM Lee Hsien Loong were corrupt or improper in accepting discounts when they purchased the apartments in a development known as `Nassim Jade`.
Thirdly, Tang Liang Hong suppressed reference to the most critical pleading in sub-para 6(2) of his own re-amended defence in which he stated and declared thus: ` (Tang Liang Hong) did not by the spoken words suggest that any further investigation or report should be made, or was necessary. ` In other words, Tang Liang Hong went significantly further by declaring that the purchases of SM Lee and DPM Lee Hsien Loong would not require any further investigation or report. To Tang Liang Hong the matter was closed. The public ventilation and explanations exonerated both SM Lee and DPM Lee Hsien Loong.
Fourthly, Tang Liang Hong failed to mention in his affidavit that by his defences of qualified privilege and fair comment he was merely questioning the methodology of the investigation [see sub-para 15(23) of his re-amended defence] ordered by PM Goh Chok Tong, the results of which were fully debated in Parliament. He was talking about a past event. The findings reported to Parliament were that there was no impropriety whatsoever, in legal and moral terms. Tang Liang Hong in the clearest terms accepted these findings; he reiterated in his re-amended defence that there was no impropriety whatsoever on the part of SM Lee and DPM Lee Hsien Loong.
Taking the preceding third and fourth matters together, a fair and accurate reading of the pleadings in Suit No 1116/96 must inexorably lead any reasonable reader to one and only one conclusion: namely, that the propriety of the purchases with discounts of units in Nassim Jade by SM Lee and DPM Lee Hsien Loong, or by me and my wife of a unit in the same development, was and is a non-issue in Suit No 1116/96. Tang Liang Hong, if he was to be taken seriously on his own re-amended defence, took the clear and unequivocal stand that the purchases of SM Lee and DPM Lee Hsien Loong were completely above board, both legally and morally. I repeat: that was unquestionably his stand as specifically expressed in his re-amended defence.
In those circumstances, when the plaintiffs` 12 applications for Mareva injunctions were assigned to me for hearing on 27 January 1997, the only view I could take was that my coincidental purchase of Nassim Jade was not an impediment at all to my hearing the 12 applications, most of which involved alleged slanders and libels allegedly uttered or published at the hustings before and in the days after the last Parliamentary General Elections. It also bears reminder that a judge is duty bound to hear cases assigned to him unless there is a good cause or reason excusing himself.
Picking up the procedural narrative, it became increasingly clear to me that in asking for an open court hearing on 5 March 1997, Mr Jeyaretnam on behalf of his client intended to assert the erroneous allegations of facts and to make the unsustainable submissions. They would have launched a personal attack against me without all the facts being placed before the public. I saw the ulterior purpose behind the move. I ruled that the hearing must remain in chambers initially. For over an hour, I pointed out and corrected the serious errors of fact and the nature of the tenuous submissions. In the end, I ordered Tang Liang Hong to turn up in person to substantiate and make good his allegations against me. I had more than a few questions for him; and he could have the opportunity to answer and furnish further and better particulars if he had any. Counsel for SM Lee, Mr Davinder Singh SC, also applied to cross examine him. In view of the serious errors of facts, SM Lee might want to respond by an affidavit to correct the errors. I then adjourned the hearing of Tang Liang Hong`s application to 2.30 pm on Monday, 10 March 1997. If I had heard the application in open court as applied for, I would have fallen into the trap set up for me by Tang Liang Hong. The serious errors of facts would have been ventilated and reported and public opinion would have been swayed against me without the opportunity to rebut all the falsehoods.
I should further mention that having failed to contrive a hearing in open court regardless whether all relevant facts were before me, Mr Jeyaretnam then applied that the application should be heard by another judge. It had an apparent reasonableness about it. But it was a disingenuous application and I rejected it. When allegations of bias are made against a judge, they should wherever possible be made before him. Where the concerns are reasonable, any judge would happily disqualify himself. Judges must always be mindful that the avoidance of actual or apparent bias is an indispensable pre-requisite to all exercise of judicial power. A judge must not have a pecuniary interest in the outcome of a case before him, however small or indirect. Secondly, in relation to apparent bias, a judge must ask the question: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts go away thinking that a...
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