Lee Kuan Yew v Davies and Others

• Jurisdiction: Singapore
• Judgment Date: 30 November 1989
• Date: 30 November 1989
• Docket Number: Suit No 3336 of 1987
• Court: High Court (Singapore)

Lee Kuan Yew

Plaintiff

and

Davies Derek Gwyn and others

Defendant

[1989] SGHC 111

L P Thean J

Suit No 3336 of 1987

High Court

Damages–Aggravation–Tort–Defamation–Relevant factors in deciding award of aggravated damages–Tort–Defamation–Damages–Factors to be considered–Tort–Defamation–Fair comment–Requirements for defence of fair comment to be made out–Whether fair comment defence made out–Tort–Defamation–Justification–Whether defence of justification applied–Tort–Defamation–Libel–Remarks making no express or specific reference to plaintiff–Whether remarks referring to plaintiff–Defamatory statements–Whether natural and ordinary meaning of words defamatory–Tort–Defamation–Qualified privilege–Whether contents of article fell outside scope of right to reply to attack–Whether publisher had duty to communicate and report information–Whether constitutional right to information imposed duty on publisher to communicate and report contents in article–Whether publisher had duty to communicate and report information–Article 14 (1) (a)Constitution of the Republic of Singapore 1985 (1985 Rev Ed)

The plaintiff was the Prime Minister of Singapore, and brought claims against the four defendants for libel in respect of statements contained in an article (“the article”) of the Far Eastern Economic Review (“the Review”). The first defendant was the editor of the Review; the second defendant was the author of the article complained of, and the third and fourth defendants were the publishers and printers respectively of the Review.

The plaintiff alleged that two offending paragraphs (“para 9” and “para 11”) in the article were false, malicious and libellous in relation to his conduct, both as a person and as the Prime Minister.

The defendants denied that the words in the offending paragraphs referred to the plaintiff, or that the words bore the meanings respectively as alleged or any meanings defamatory of the plaintiff. Additionally, the defendants sought to invoke the defences of justification, fair comment and qualified privilege in relation to the two offending paragraphs.

Held, giving judgment for the plaintiff:

(1) The words complained of in para 9 made no express or specific reference to the plaintiff. The applicable test as to identity was an objective one. In applying the test, these words could not be read in isolation and had to be read in the proper context in which they were set out. Having regard to the context of the paragraphs preceding and after para 9, an ordinary reader would reasonably understand the words complained of in para 9 to refer to the plaintiff, and that that paragraph was published of and concerning the plaintiff as a person and of and concerning him as the Prime Minister and in relation to his conduct: at [27], [28], [29] and [31].

(2) In construing the natural and ordinary meaning of the words complained of, the issue was purely one of construction of the words. However, the rules of construction applicable in construing a contract or a will were not appropriate for the purpose. The proper approach was to consider what meaning the words, read in the context of the whole article, would convey to ordinary reasonable persons using their general knowledge and common sense. Such a meaning was not confined to a literal or strict meaning of the words but included any inferences or implications which could reasonably be drawn by such persons: at [33] and [36].

(3) The natural and ordinary meaning of the words in para 9 imputed dishonourable and discreditable conduct and motive on the part of the plaintiff; they imputed an attack on the Catholic Church and a dishonourable and improper use by him of the powers under the Internal Security Act (Cap 143, 1985 Rev Ed). Such imputations tended to bring the plaintiff into public odium and contempt and lowered him in the estimation of right-thinking people in Singapore. This was especially so in Singapore which was a multi-racial and multi-religious society, where there was toleration of all forms of religious belief and worship. The words were therefore plainly defamatory of the plaintiff, both as a person and as the Prime Minister: at [38].

(4) To an ordinary reasonable reader, the words complained of in para 9 conveyed a much stronger meaning than that contended by the defendants and would not be understood to bear the meaning ascribed to them in the defendants' defence. The defendants' plea of justification in relation to para 9 thus failed: at [42].

(5) The test of fair comment was objective, ie whether a fair-minded man could have honestly expressed the opinion on the proved facts. In this connection, every allowance or latitude was to be given for any prejudice and exaggeration entertained by such a fair-minded man. In applying the objective test, it was necessary, firstly, to examine the material facts proved and, secondly, to consider whether on those proved facts a fair-minded man could honestly make the comment that was made. It was also essential to the success of the defence that the facts on which the comment was made were truly stated so that readers might judge for themselves whether the comment was well-founded: at [62], [67], [70], [71] and [74].

(6) However, as a fair-minded man could not honestly hold the opinion and express the comment as set out in para 9, the comment therefore failed to satisfy the objective test as a fair comment. Further, an examination of the facts proved in this case demonstrated clearly that the facts on which the comment was made were not truly stated in the article: at [73] and [75].

(7) Where the words in para 11 were concerned, their natural and ordinary meaning were defamatory of the plaintiff; they imputed dishonourable and discreditable conduct on his part both as a man and as the Prime Minister, and tended to lower him in the estimation of right-thinking people in Singapore: at [80] and [82].

(8) The defendants had not succeeded in proving justification of the allegations contained in their plea, and the defence of justification thus failed: at [84].

(9) The defence of fair comment had no merit at all. Firstly, an ordinary and reasonable reader would conclude that the relevant words in para 11 were an imputation of fact and not a comment. This was because there was no sufficient substratum of fact on which to base the comment. Secondly, even if the words were a comment, the facts on which the comment was founded had not been truly and accurately stated: at [85].

(10) A person who was publicly defamed was entitled to reply to the defamation publicly, and such reply might be made through the press and was privileged. This privilege extended also to protect a newspaper which published the reply of the person defamed. However, the protection of a privileged occasion did not extend to statements which had no relevance to a reply to the attack or which were not in any way appropriate to the occasion. Paragraphs 9 and 11 contained extraneous and “foreign” matters and were thus not covered by qualified privilege. The defence of qualified privilege premised on a right of reply to an attack thus failed: at [90], [92] and [99].

(11) Privilege for publication in the press of information of general public interest was confined to cases where the publisher had a legal, social or moral duty to communicate it to the general public. There was however no duty to communicate information of the kind contained in the article. The information contained in the article could not conceivably be said to be one that the public had a legitimate interest to receive and the Review had a duty - whether legal, moral or social - to report. Also, while Art 14 (1) (a) of the Constitution of the Republic of Singapore 1985 (1985 Rev Ed) conferred a right to information on citizens, it did not follow that a publisher had a duty to communicate and report the information contained in the article because of this right: at [101], [107] and [110].

(12) As there were four defendants in this case, the plaintiff had to prove express malice against each of them. This requirement, however, was subject to a qualification. If express malice was proved against the first or second defendant, the third defendants would be liable vicariously on the basis of respondent superior because the first and second defendants were in the employment of the third defendants: at [113] and [115].

(13) On the materials before the court, the first and second defendants were actuated by express malice in the publication of the article. Accordingly, the third defendants were affected by the express malice of the first and second defendants, and would be held vicariously liable: at [126].

(14) The fourth defendants had entered into an agreement with the third defendants, and had by agreement abandoned any attempt to exercise control on what they printed. In that situation, they had put themselves in the shoes of the publishers and they stood or fell with the publishers. In that sense, the fourth defendants had printed the article, without considering or caring whether it was true or false; they were indifferent to the truth. They would thus be equated with a publisher who published materials or articles without considering or caring whether they were true or false. In that sense, the fourth defendants had acted recklessly and were also actuated or affected by express malice: at [128].

(15) The plaintiff was entitled to aggravated damages. Besides a positive finding of express malice, the other aggravating factor was the persistence of the defendants' counsel in a line of cross-examination which was irrelevant, calculated to be offensive and which increased the hurt to the plaintiff's feelings. However, the third defendants' publication of a press release repeating the libel before the trial would be disregarded as an aggravating factor. This was because the fourth defendants had played no part in the publication and the court...