Nasrat Muzayyin alias Nasrat Lucas Muzayyin v Ong Tiong Seng

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 02 August 2010
• Neutral Citation: [2010] SGDC 321
• Court: District Court (Singapore)
• Docket Number: Suit No 2295 of 2008 Z
• Year: 2010
• Published date: 07 February 2011
• Hearing Date: 02 August 2010,05 January 2010,06 January 2010,04 January 2010,16 October 2009,19 February 2010,08 January 2010
• Plaintiff Counsel: Jimmy Yim SC / Vergis S Abraham / Lim Wei Shin (Drew & Napier)
• Defendant Counsel: Jason Lim /Kevin De Souza (De Souza Lim & Goh LLP)
• Citation: [2010] SGDC 321

District Judge Loo Ngan Chor: Introduction:

In this action, the plaintiff claims damages against the defendant for a slander of the plaintiff’s reputation in the way of his office, profession, calling, trade and/or business. This is a claim which, under s5 of the Defamation Act (Cap 75), does not require the proof of any special damage.

The alleged slander took place at the fourth Annual General Meeting (“the AGM”) on 21st April 2008 of a company called Provenance Capital Pte Ltd (“the company”). The company holds a Capital Markets Services Licence and is regulated by the Monetary Authority of Singapore (“MAS”) under the Securities and Futures Act, which includes oversight of director appointments.

The defendant allegedly said the following or like words, which constituted the slander, in the presence of two members of the company, Dr Tan Boon Wan (“Dr Tan”) and Ms Jacqueline Low E-Cheng (“Ms Low”):

Nasrat is under investigation by the authorities and this is the main reason for not applying to the MAS for approval for him to be re-appointed; and It was CPIB, actually it was not just CPIB, but CID also.

In a letter dated 28th June 2008 to the plaintiff care of the plaintiff’s lawyers, the defendant set out his version as follows:

Nasrat, I had said to you at the AGM that your re-appointment to the board would be subject to MAS approval being obtained because the Company is regulated as you know under the Securities and Futures Act. When you asked me what investigations might be made by MAS before granting approval, I said to you that, I believed the usual checks would be carried out with the relevant government agencies, such as, the police and CID. I did not say you were being investigated by the MAS, police or the CID, and certainly, any suggestion to that effect (of which there was none) would have been completely unintended.

The plaintiff, Dr Tan and a Mr Victor Ogg (“Mr Ogg”) filed affidavits of evidence in chief as witnesses in the plaintiff’s case. Mr Ogg, who holds a British passport and was resident in Oman, did not, in the event, testify owing to the defendant not disputing what he had to say in his affidavit. The plaintiff also called a Ms Wong Bee Eng (“Ms Wong”) to testify orally although she had initially affirmed an affidavit for the defendant to say that she had given the defendant proxy rights in respect of her shares at the AGM.

The defendant, Ms Low, a Mr Chan Kok Poh (“Mr Chan”) and Ms Wong provided affidavits of evidence in chief for the defence. Ms Wong, as mentioned above, did not eventually testify for the defence.

The Undisputed Facts:

The plaintiff resigned his directorship in the company by a letter dated 23rd March 2007. He wanted to focus his energies on a group of companies in the oil supply and trading business which was referred to as the Concord Energy group.

On 5th April 2007, the defendant, who was a director of the company, had written to the MAS to inform them of the plaintiff’s resignation. MAS emailed Ms Wong to query why the plaintiff had resigned to which Ms Wong replied that the plaintiff had commitments with a refinery project on Jurong Island.

The plaintiff wrote to Dr Tan a letter dated 1st March 2008 asking to be re-appointed as a director of the company and for his request to be tabled at the AGM. The plaintiff re-sent the letter to Dr Tan on 2nd April 2008. He had felt himself ready to return to the company as he had put proper management in place at the Concord Energy Group of companies.

As at the time of the AGM on 21st April 2008, the company had the following shareholders, namely: Ms Wong (35%), Dr Tan (5%), Ms Low (5%), the plaintiff (15%), the defendant (30%) and a Mr Zhang (10%). The AGM was attended by the plaintiff, the defendant, Ms Low (who was also the defendant’s wife). Mr Chan, who was the company’s auditor, attended as the recording secretary of the minutes. Ms Wong and Mr Zhang were absent and the defendant held proxy for them. Dr Tan was chairman of the AGM.

The AGM was being audio-recorded by Mr Chan who stepped out at the material time on the defendant’s request as the issue of the plaintiff’s request for re-appointment as a director of the company under “any other business” was being broached. Mr Chan turned off the audio recording.

Mr Ogg was employed as a Director of Projects by Concord Energy Pte Ltd from 2005 to October 2007. Mr Ogg’s testimony was dispensed with as it was confirmed by the defence that they accepted Mr Ogg’s affidavit evidence and did not dispute that Mr Ogg had no involvement whatsoever with an email complaint of 18th April 2008 that the user of the email address victorogg@yahoo.com sent to the CAD (“email from the fake Ogg”).¹

Although the email from the fake Ogg was not in evidence, the existence of this email, and substantially, its terms, was common ground owing to the existence of an email dated 22nd May 2008 from CAD’s Ms Jasmine Cher (set out at [51] below) which were taken to have referred to the terms of the email from the fake Ogg.²

The plaintiff and Dr Tan, who were both associated with the Concord Energy Group, were not called up by the CAD. The defendant and Dr Tan were directors of Concord Energy Pte Ltd until 1st August 2007 when the defendant resigned his position.

The Dispute:

The plaintiff says that it was during the interval when Mr Chan was out of the room and the audio recording was off that the defendant said the following words or words to the following effect: Nasrat is under investigation by the authorities and this is the main reason for not applying to the MAS for approval for him to be re-appointed”

The plaintiff says that he responded by asking whether he was being investigated by MAS, the defendant replied that it was another agency. The plaintiff said that he then asked who had told the defendant this. At first, the defendant kept silent and repeated that it was another agency. When the plaintiff asked which agency that was, the defendant allegedly replied:

It was CPIB, actually it was not just CPIB, but CID also.

The defendant’s version was that he had simply stated that the plaintiff’s application would be subject to MAS’ approval and that it was the plaintiff who asked what investigations MAS would conduct. It was in response to this question that the defendant said he had replied that MAS would conduct the usual checks with the relevant government agencies such as the police and the CID.

The Pleadings In Brief

The Statement of Claim avers that, in their natural and ordinary meaning, the alleged words meant that “the plaintiff was suspected of committing some wrongdoing, crime and/or impropriety.”³ It was also averred that “by way of innuendo” the alleged words “meant and/or were understood to mean that”: The plaintiff was being investigated because he was suspected of dishonest, corrupt and/or improper conduct as a businessman, director and/or shareholder; The plaintiff’s professional integrity and character was questionable; The plaintiff was unfit to be appointed a director of the company and/or to be a director of other companies as he was being investigated for a wrongdoing, crime and/or impropriety.⁴

The Defence Amendment No. 1 denies that the words were spoken⁵ or that any words the defendant spoke were defamatory or defamatory in the meanings the plaintiff alleged⁶. It put the plaintiff to strict proof of the words actually spoken and how such words could bear the meanings the plaintiff alleged.⁷ The Defence Amendment No. 1 also placed reliance on the defence of qualified privilege, citing particulars that formed the bases of the defence. The Defence Amendment No. 1 recited⁸ the defendant’s letter dated 28th June 2008 to the plaintiff’s lawyers, which contained the defendant’s version of the words he alleged he said, in admitting that the plaintiff’s lawyers issued a letter of demand dated 17th June 2008.⁹

The amendments to the original Defence were allowed by an Order of Court dated 25th November 2008. The amendments principally comprised the plea of justification. It was averred that the alleged words did not bear the meanings the plaintiff alleged.¹⁰ In respect of justification, the Defence states that the alleged words, even if spoken (which is denied) were “true in substance and in fact as a complaint against the plaintiff had in fact been received by the Commercial Affairs Department on 18 April 2008 and was being assessed by the Commercial Affairs Department.”¹¹ The particulars of this averment are that the defendant received an email on 20th October 2008 which consisted of an email dated 22nd May 2008 from the Commercial Affairs Department (“the CAD”) to a Mr Victor Ogg regarding a complaint by Mr Victor Ogg against the plaintiff that: The plaintiff had used nominee BVI companies to receive funds improperly from Concord Energy Pte Ltd; The plaintiff had signed a false contractual agreement with an Indonesian party; Improper remittances had been made by the plaintiff and/or Concord Energy to Global Energy & Refining, Asia Oil Ltd, Grand Harmony Ltd and Fortknox Finance.

The plaintiff’s Reply Amendment No. 1 contained inter alia a denial of the defendant’s plea of justification by stating that: The email dated 22nd May 2008 from the CAD merely requested for information from the purported Mr Victor Ogg to which, since there was no response, no investigation or assessment on the part of CAD had commenced. The plaintiff averred that someone had impersonated as Mr Victor Ogg and under cover of a fictitious email address victorogg@yahoo.com had made a false and malicious complaint to the CAD. The defendant had relied on the said email in his Defence Amendment No. 1 knowing that the allegations contained in the said email were false or recklessly not caring whether they were true or false.

The Plaintiff’s Case In Brief:

Although this was not pleaded, the plaintiff...