Lee Kuan Yew v Tang Liang Hong and Another

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 22 August 1997
• Neutral Citation: [1997] SGCA 39
• Date: 22 August 1997
• Subject Matter: Appeals,Award of costs discretionary,Disclosure of affidavit,s 34(2)(b) Supreme Court of Judicature Act (Cap 322),Whether wrongful exercise of discretion,Whether judge considered nature of affidavit,Party in contempt,Whether abuse of court process,Costs,Affidavits,Whether court had discretion not to hear contemnor,Prima facie case of error,Ambit of abuse,Applicable principles,Civil Procedure,Whether party with right of appeal had right to be heard,Amendments
• Docket Number: Motion in Suit No 2523 of
• Published date: 19 September 2003
• Defendant Counsel: Davinder Singh SC and Hri Kumar (Drew & Napier)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: JB Jeyaretnam (JB Jeyaretnam & Co)

Background

This was an application for leave to appeal to the Court of Appeal against an order of costs. On 28 April 1997, Lai Kew Chai J ordered Tang Liang Hong (Tang) to pay the costs of the application by Lee Kuan Yew (Lee) to delete certain paragraphs from his first and third affidavits filed on 27 January and 4 March 1997 respectively. These affidavits had been filed in support of a worldwide Mareva injunction against Tang and his wife, and to strike out Tang`s defence for non-compliance with certain court orders as part of defamation proceedings instituted against Tang.

The paragraphs in question read as follows: (a). Paragraphs 22.13 and 11.13 respectively of Lee`s first and third affidavits:

That place is notorious for shootings, muggings and car-jackings. It did not make any sense for a person who claims to be fearful for his life to go to a place like Johor.

(b). Paragraphs 22.15 and 11.15 respectively of Lee`s first and third affidavits:

Why would he instead go to Johor? If there is anywhere where people can do him harm, that is the place.

For convenience, these paragraphs shall be collectively called `the statements`.

The relevant events leading up to the present application are set out below:

27 January 1997	-	Lee filed an affidavit in support of his application for
		a worldwide Mareva injunction against both Tang
		and his wife.
4 March 1997	-	Lee filed an affidavit in support of his application to
		strike out the defence of Tang and other ancillary
		orders for his failure to comply with certain orders of
		the court.
11 March 1997	-	Tang gave a press conference in Johor Bahru. At the
		same press conference, his Malaysian friend, one
		Razak Ahmad, deliberately drew the attention of the
		Malaysian reporters present to the statements, and this
		provoked widespread anger in Malaysia over the
		statements.
13 March 1997	-	Lee apologised unreservedly to the Malaysian
		Government for the statements.
17 March 1997	-	Lee issued a personal statement repeating his
		unreserved apology and said that he had instructed his
		counsel to apply to court for leave to delete the
		statements so that they would no longer remain on the
		record.
23 April 1997	-	Lee filed an application for leave to delete certain
		paragraphs of his affidavit dated 27 January 1997 and
		4 March 1997. An affidavit was filed in support of the
		application. Solicitors for Lee appeared before the
		duty registrar to seek an early date for the hearing of
		the application, and requested that the application be
		heard before Lai Kew Chai J who was familiar with
		the facts of the case. The application was fixed for
		hearing on 28 April 1997.
28 April 1997	-	Lai Kew Chai J heard and granted the application but
		awarded costs to Lee.
7 May 1997	-	Tang filed an application for leave to appeal to the
		Court of Appeal against the costs order made by Lai
		Kew Chai J. The application was fixed for hearing
		before Lai Kew Chai J on 12 May 1997.
12 May 1997	-	Lai Kew Chai J heard and dismissed the application
		for leave to appeal with costs.

On 19 May 97, Tang filed a notice of motion for leave to appeal to the Court of Appeal against Lai Kew Chai J`s costs order. The application was fixed for hearing before Goh Joon Seng J on 23 May 1997. Goh Joon Seng J, however, adjourned the application and directed that it be heard before the full Court of Appeal since a High Court judge had already heard and dismissed the first application for leave to appeal. The motion was thus fixed for hearing before this court on 7 July 1997.

Just three days before the hearing, counsel for Tang, Mr JB Jeyaretnam, indicated that he wanted an adjournment of the motion. In a brief letter written by Mr G Raman on his behalf, we were informed that Mr Jeyaretnam would be abroad on the day of the hearing on some urgent professional matter. Subsequently, on 7 July 1997 itself, Mr G Raman appeared before this court on behalf of Mr Jeyaretnam and sought an adjournment. Counsel for Lee objected and argued that there was ample time for Mr Jeyaretnam to arrange his schedule to be present in Singapore for the hearing. We, however, decided to accede to the adjournment despite this eleventh hour request, and the motion was re-fixed for hearing two weeks later.

The application for leave to appeal before this court was finally heard on 22 July 1997. After the hearing, we granted the motion. We now give our reasons.

The decision to allow the deletion

In granting the application to delete the statements, Lai Kew Chai J accepted the two grounds which were submitted by Lee`s counsel, Mr Davinder Singh SC. The learned judge said the following, which we have reproduced from the verbatim notes:

The application to delete the statements is made on two grounds. One, that Tang Liang Hong has abused the process of the court by using the affidavit of the Senior Minister, filed on 27 January1997, for a collateral purpose and two, that it is just and convenient, and in the interest [of] maintaining friendly relations between Malaysia and Singapore that those statements be deleted. I`m constrained to agree and to find that, rather regrettably, Tang Liang Hong had abused the process of the court by drawing attention to the statements without at the same time indicating the context in which those statements were made. The abuse of the process of court led to a train of events which have been described in court today and also which has been noted by almost every Singaporean. Now that`s as far as the personal conduct of Tang Liang Hong is concerned. Quite apart from that, I agree that it is also in the public interest that the inherent jurisdiction of a court should be exercised to prevent the kind of abuse of its process which I`ve seen, and also to promote and help in the promotion of friendly relations between Singapore and every other friendly country in the world. The judicial system cannot exist as though unto itself, but the administration of justice exists within the legal system of a country and it is unquestionable that the powers of the court must be used to promote and help maintain friendly relations between Singapore and every other friendly country. Hence, in matters of law, we have evolved in terms of international law the doctrine of comity of nations where as far as possible we respect and pay due respect and regard to the laws and usages of the country which has friendly relations with Singapore. Therefore, for those very brief reasons ... I will make an order in terms of prayer 2 of the application. The statements are to be deleted from the two affidavits. I`m glad to note that those representing both Mr Tang Liang Hong and Mrs Tang have indicated that they do not wish to be seen in any way to stand in the way of an order in terms of the application.

Turning more specifically to the issue of costs, Lai Kew Chai J reasoned in the following manner:

But I have to say that so far as Mr Tang Liang Hong is concerned he started something and he must bear the full consequences for it. He has unfairly drawn attention to statements without giving the context at the same time. He exploited those statements completely out of context and he must bear the consequences. Unless there are further submissions on the matter, I am going to ask him to pay the costs of the application of the court by misusing the document in the way he has done ... my main ground is that I do not approve of the way Mr Tang Liang Hong had used the affidavit in the press conference and drawing attention to those statements completely out of context ... I am taking the position that there has been an abuse of the process by Mr Tang in the way he had misused the affidavit for a collateral purpose and whipped up the kind of emotions which absolutely have nothing to do with the defamation suits.

Application for leave to appeal

Preliminary objection - contemnor to be heard?

Counsel for Lee, Mr Davinder Singh SC, raised a preliminary objection to this court hearing the application for leave to appeal on costs since Tang was in contempt of court. This objection was based on the general rule that a court has a discretion to refuse to hear a party in contempt unless and until he has purged his contempt.

In Hadkinson v Hadkinson [1952] P 285 , Lord Denning explained that this rule was not one of common law, but originated in canon law and was adopted by the ecclesiastical courts and the chancery courts. His Lordship went on to observe the following at p 298:

It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. In this regard I would like to refer to what Sir George Jessel MR said in a similar connexion in Re Clements v Erlanger [1877] 46 LJ Ch 375 , at p 383:

`I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men`s rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction.`

Applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of

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