Lim Eng Hock Peter v Lin Jian Wei and another and another appeal

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 28 July 2010
• Neutral Citation: [2010] SGCA 26
• Date: 28 July 2010
• Docket Number: Civil Appeals Nos 25 and 38 of 2009
• Published date: 04 August 2010
• Plaintiff Counsel: Alvin Yeo SC, Chan Hock Keng, Koh Swee Yen, Suegene Ang and Reina Chua (Wong Partnership LLP)
• Hearing Date: 30 July 2009
• Defendant Counsel: Ang Cheng Hock SC, William Ong, Kristy Tan and Ramesh Selvaraj (Allen & Gledhill LLP)
• Court: Court of Appeal (Singapore)
• Subject Matter: Tort,Defamation

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

In Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2009] SGCA 48 (“the Judgment”), the appellant (“the Appellant”) succeeded in his defamation action against the respondents (“the Respondents”) and was awarded damages on an aggravated basis by this court. This present judgment concerns the issue of the quantum of damages to be awarded, and should, accordingly, be read together with the Judgment.

The subject of quantum of damages for defamation appears to be continually misrepresented or misunderstood by some sections of the public in Singapore. In order to clear up these misconceptions, we shall, in this judgment, touch on the various bases for awarding differentiated damages for defamation committed against different classes of plaintiffs.

The award of damages in a defamation case

It is apposite to begin this judgment by considering, in brief, the nature of and rationale behind damages awarded in defamation cases.

In Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86 (“Arul Chandran”), this court summarised the functions of general damages awarded in defamation actions in the following manner (at [53]):

General damages serve three functions. Firstly, they act as a consolation to the plaintiff for the distress he suffered from the publication of the statement. Secondly, they repair the harm to his reputation. Thirdly, they serve to vindicate his reputation ....

In Uren v John Fairfax & Sons Pty Ltd [1966] 117 CLR 118 (“Uren”), Windeyer J, in a passage approved by the House of Lords in Cassell & Co Ltd v Broome and Another [1972] AC 1027 at 1071, stressed the vindicatory and consolatory functions of general damages (Uren at 150):

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.

In McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, Pearson LJ commented on general damages as follows (at 104–105):

Compensatory damages ... may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They may also include the natural injury to his feelings – the natural grief and distress which he may have felt at having been spoken of in defamatory terms, and if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff’s pride and self-confidence, those are proper elements to be taken into account in a case where the damages are at large.

Other than general damages, other types of damages – such as aggravated damages (for aggravation of the injury suffered by a plaintiff through the defamation) and exemplary damages (to, inter alia, punish a defendant for the wilful commission of a tort) – may be awarded. With that said, Singapore law, like English law, does not regard the claimant’s reputation as “vindicated by a symbolic award of a token or conventional sum of damages” (Gatley on Libel and Slander (Patrick Milmo QC & W V H Rogers eds) (Sweet & Maxwell, 11th Ed, 2008) (“Gatley”) at p 267). In this regard, the following observation of the Supreme Court of Canada in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 is pertinent (at [166]):

A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in a manner that will truly remedy the situation.

In determining the appropriate quantum of general damages to be awarded in any given case, circumstances that are relevant and should be taken into account include: the nature and gravity of the defamation; the conduct, position and standing of the plaintiff and the defendant; the mode and extent of publication; the natural indignation of the court at the injury caused to the plaintiff; the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict; the failure to apologise and retract the defamatory statement; and (g) the presence of malice.

Another consideration relevant to the determination of the quantum of general damages to be awarded is its intended deterrent effect. In The Gleaner Co Ltd and another v Abrahams [2004] 1 AC 628, the Privy Council (per Lord Hoffman) said (at 646):

[D]efamation cases have important features not shared by personal injury claims. The damages often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims. [emphasis added]

The effectiveness of the deterrent would depend on the amount of the damages awarded. In Kiam v MGN Ltd [2003] 1 QB 281, Sedley LJ discussed the importance of awarding an adequate amount of damages in order for the award to be an effective deterrent, and said (at 304):

… the ineffectiveness of a moderate award in deterring future libels is painfully apparent. It is this, I believe, that is leading both judges and juries once more to lift the level of general damages for libel into a different league from personal injury damages, at least in cases like the present where the newspaper has not simply got its facts wrong but has behaved outrageously from start to finish. [emphasis added]

In recent times, the quantum of damages awarded to public personages, especially political figures, has come under much scrutiny. The primary criticism is that the amounts awarded in damages have an alleged “chilling” effect on political and public debate on matters considered to be of public interest. However, despite the expansion of the common law defence of qualified privilege to political speech in jurisdictions such as Australia, Canada, New Zealand and the United Kingdom (which, under the previous law, might or would have been defamatory), the general levels of damages awarded to political figures for defamation in these countries have not been consciously reduced. For the courts in these jurisdictions, the assessment of defamation damages still turns on a considered weighing of the facts and circumstances of each case. The rationale for continuing this established approach may be found in the following passage from Gatley (at p 268):

While the level of damages should not be so high as unduly to curtail freedom of expression, “the court should be careful not to drive down damages in libel cases to a level which publishers might with equanimity be tempted to risk having to pay”. Nevertheless, “the figure of Justice carries a pair of scales, not a cornucopia” and “it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches”. [emphasis added]

Gradation of damages for different plaintiffs

Applying the principles set out above, the Singapore courts have, over the years, established a gradation or spectrum of damages to be awarded to plaintiffs. This gradation is based primarily on a few dominant considerations, viz, the position and standing of the plaintiff in society, the nature and gravity of the defamation, the mode and extent of the publication, and the position and responsibility of the defendant as a publisher or purveyor of the defamation. In this respect, counsel for the Appellant argued – correctly in our view – that broadly speaking, our courts have differentiated between categories of plaintiffs for the purpose of determining the amount of damages to be awarded for defamation.

Singapore courts have consistently awarded higher damages to public leaders than other personalities for similar types of defamation because of the greater damage done not only to them personally, but also to the reputation of the institution of which they are members. The expression “public leaders” in this context would be a reference to political and non-political leaders in the Government and public sector and private sector leaders who devote their careers and lives to serving the State and the public. The expression is not used in reference to people who are merely famous in the public eye, such as footballers or singers and people in the entertainment industry. Instead, it covers prominent figures in business, industry and professions wherein the relevant outputs serve to augment public welfare. Public leaders are generally entitled to higher damages also because of their standing in Singapore society and devotion to public service. Any libel or slander of their character with respect to their public service damages not only their personal reputation, but also the reputation of Singapore as a State whose leaders have acquired a worldwide reputation for honesty and integrity in office and dedication to service of the people. In this connection, it is pertinent that it has been said that the most serious acts of defamation are those that touch on the “core attributes of the plaintiff’s personality”, ie, matters such as “integrity, honour, courage, loyalty and achievement” (see Gatley at p 267).

Defaming a political leader is a serious matter in Singapore because it damages the...