Ng Koo Kay Benedict v Zim Integrated Shipping Services Ltd

• Jurisdiction: Singapore
• Judgment Date: 10 March 2010
• Date: 10 March 2010
• Docket Number: Suit No 144 of 2008
• Court: High Court (Singapore)

Ng Koo Kay Benedict and another

Plaintiff

and

Zim Integrated Shipping Services Ltd

Defendant

[2010] SGHC 47

Lai Siu Chiu J

Suit No 144 of 2008

High Court

Evidence–Admissibility of evidence–Computer output–Test to admit computer output evidence–Whether there was presumption of regularity of computer output–Section 35 Evidence Act (Cap 97, 1997 Rev Ed)

Tort–Defamation–Damages–Statement not widely disseminated and published without malice–Lack of apology and failed justification defence–Amount of compensatory damages and aggravated damages payable

Tort–Defamation–Defamatory statements–Test to determine whether statement was defamatory–Test to determine meaning of report or rumour–Whether statement would affect plaintiff's reputation

Tort–Defamation–Justification–Whether there were reasonable grounds to suspect that plaintiffs had bribed third party

Tort–Defamation–Publication–Test to determine whether material made available on Internet was published–Whether statement made available on Internet was published–Whether statement sent by electronic mail was published

The defendant, Zim Integrated Shipping Services Ltd ( Zim ), commenced Suit 755 of 2007 ( S 755/2007 ) against the plaintiffs, Ng Koo Kay Benedict ( Benedict ) and Rajathurai Suppiah ( Suppiah ). The facts of S 755/2007 were fully reported in Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426. After S 755/2007 was commenced, Zim sent an e-mail to HKSG Group Media Ltd ( HKSG ) enclosing a press release ( the Press Release ). The Press Release was made available on a number of websites, including the Shipping Gazette Website and the Asian Shipper Website (together, the Websites ), for a few days. The Websites were available to any user of the Internet without charge. The Press Release was also sent as a statement ( the Statement ) by e-mail to a list of undisclosed recipients ( the E-mail ). Laurence Richard Scofield ( Scofield ) was a director of one of HKSG's companies and provided a list of recipients who received the E-mail, with e-mail addresses ending with .sg ( the List of Recipients ).

The Statement and the Press Release were largely similar. In the first paragraph, the Statement described how Zim had commenced an action against Dafni Igal ( Captain Dafni ), who was charged together with [Benedict] and [Suppiah] . In the second paragraph, the Statement stated that according to the court documents, Benedict and Suppiah had allegedly made secret and undisclosed payments to Captain Dafni to induce the latter to breach his duties as Zim's Area President. In the third paragraph, the Statement stated that Captain Dafni was then the president and CEO of CNC Line ( CNC ) and that Benedict and Suppiah were the directors of Starship Agencies Sdn Bhd, which was CNC's agent in Malaysia.

Benedict and Suppiah sued Zim for defamation when Zim failed to retract and apologise for the Statement.

Held, allowing the plaintiffs' claim:

(1) To determine whether a statement was defamatory, the court would have to decide on the meaning of the statement and determine whether the meaning ascribed to the statement was defamatory. The court would ascertain what the words would convey to the ordinary reasonable person, using his general knowledge and common sense. The ordinary reasonable reader was an average rational layperson who could read between the lines, read in an implication more readily than a lawyer or indulge in a certain amount of loose thinking, but was not unduly suspicious or avid for scandal. The natural and ordinary meaning of the offending words could include inferences and implications that the ordinary reasonable person might draw in the light of his general knowledge, common sense and experience, but would not include those based on extrinsic evidence. The meaning intended by the defendant or actually understood by the plaintiff was irrelevant: at [12] and [13].

(2) A defendant's obligation to prove the truth of a report or a rumour would depend on the meaning conveyed by the report or rumour. There were three possible levels of involvement that could arise in each case, viz, the Chase Level One meaning (ie,the imputation of guilt), Chase Level Two meaning (ie, that there were reasonable grounds for suspecting that the act was committed) and Chase Level Three meaning (ie, that there were grounds for inquiring into whether the acts were committed). All three levels were generally regarded as being defamatory, though in varying degrees. TheChase categories were simply convenient labels and the court did not necessarily have to pigeonhole the offending material within one of the threeChase levels: at [16] and [17].

(3) The second paragraph of the Statement conveyed the meaning that there were grounds to suspect that the plaintiffs had bribed Captain Dafni to corruptly procure favours from the latter. The use of the word charged conveyed the meaning that criminal proceedings had been initiated against the plaintiffs. The ordinary reasonable reader would know that criminal proceedings were initiated against a person only where there were reasonable grounds to suspect that the person had committed the offence in question. No weight was placed on the meaning of the word charge as used in the Defamation Act (Cap 75, 1985 Rev Ed) as its legal meaning would unlikely be known to the ordinary reasonable reader: at [23].

(4) The Statement was arranged such that the links between Starship Agencies (being the plaintiffs' company) and CNC (being Captain Dafni's employer) were highlighted immediately after allegations were made that the plaintiffs had bribed Captain Dafni whilst he was with his previous companies. The sting of the third paragraph of the Statement was that there were reasonable grounds to suspect that this agency relationship had been procured through bribes given by the plaintiffs to Captain Dafni: at [24].

(5) The Statement was defamatory as Zim had made very serious allegations that there were reasonable grounds to suspect that the plaintiffs were involved in acts of corruption and bribery that would have adversely affected the plaintiffs' reputation: at [25].

(6) Publication of materials made available on the Internet took place when the material was downloaded and accessed by the end-user. There was no rebuttable presumption that publication had taken place within a jurisdiction because the material was placed on a generally accessible Internet website. However, the court could infer that substantial publication had taken place where at least one other person other than the claimant saw, read or heard the communication, or where the material was made available on generally accessible web pages and bulletin boards with many subscribers: at [26] and [27].

(7) There was no evidence of substantial publication of the Press Release through the Websites in Singapore. No inference that substantial publication had taken in Singapore was drawn. There was no evidence on the number of Singapore-based subscribers for the Asian Shipper Website and its general viewership. It would also be highly unusual to conduct a search combining Captain Dafni's, Benedict's and Suppiah's name in the search field: at [31].

(8) Given the large number of addresses on the List of Recipients together with the various inconsistencies throughout the list, it seemed more likely that the list was a computer output within the meaning of s 35 of the Evidence Act (Cap 97, 1997 Rev Ed) ( the EA ). However, the List of Recipients was admitted as evidence. It was not mandatory for the plaintiffs to produce a certificate from the person responsible for the operation or management of the computer to admit computer output under s 35 (1) (c) of the EA. Neither was there a presumption of regularity of the List of Recipients. The witness called to verify the reliability and accuracy of the computer would have to be someone familiar with its operations and the evidence required to discharge such a burden would depend on the facts of the case. Here, Scofield was qualified to give evidence on the computer's reliability and accuracy. There was no reasonable ground to believe that the output was inaccurate due to improper use of the computer. There was no reason to doubt the truth or reliability of the computer output and there was reasonable ground to believe that the computer was operating properly at all relevant times: at [36], [37] and [41] to [44].

(9) There was substantial publication of the Statement in Singapore through dissemination of the E-mail. Given the large number of persons and e-mail addresses on the List of Recipients, it seemed more likely that a not insubstantial number of persons would have downloaded and read the E-mail in Singapore. Further, two witnesses had testified that they had downloaded and accessed the E-mail in Singapore, with one of them not even on the List of Recipients: at [45].

(10) To succeed in its defence of justification, Zim had to show that it had reasonable grounds to suspect that the plaintiffs had bribed Captain Dafni to breach his duties. However, Zim did not succeed in its defence. There was no evidence that the payments Captain Dafni received or allegedly received from the plaintiffs had induced, or was for the purpose of inducing him to breach his duties owed to Zim or to corruptly procure favours from him. The fact that Captain Dafni might have received payments from the plaintiffs or their companies could not, each on its own, give rise to any reasonable suspicion that the plaintiffs had bribed Captain Dafni to procure favours: at [47] and [57].

(11) While the gravity of the defamation here was fairly serious, the Statement had not been widely disseminated within Singapore. While the E-mail was sent to those operating in the same industry as the plaintiffs, Zim had not acted with malice in publishing the Statement. There was also no evidence that Zim had repeated the defamatory...