Ong Kian Peng Julian v Serene Tiong Sze Yin

• Jurisdiction: Singapore
• Judge: Lynette Yap
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] SGDC 94
• Court: District Court (Singapore)
• Hearing Date: 27 December 2019,26 December 2019
• Docket Number: DC 1894 /2018, DCA 12/2020
• Plaintiff Counsel: Mr Christopher Chong (M/s Dentons Rodyk & Davidson LLP)
• Defendant Counsel: Mr Ong Ying Ping (M/s Ong Ying Ping)
• Subject Matter: Tort ― Defamation,Justification
• Published date: 05 May 2020

District Judge Lynette Yap: Introduction

The plaintiff is a general surgeon in private practice, practising at Julian Ong Endoscopy & Surgery. The defendant was a business development manager at Thomson Medical Centre. While she was married, she began an extra-marital relationship with the plaintiff’s friend, Dr Chan Herng Nieng (“Dr Chan”), a senior consultant psychiatrist at Singapore General Hospital (“SGH”) sometime in January 2017.

The relationship between the defendant and Dr Chan was generally smooth sailing until 22 April 2018, during the defendant and Dr Chan’s vacation to Eastern Europe, when the defendant accessed Dr Chan’s handphone and took photographs of various WhatsApp Messages between the plaintiff and Dr Chan (the “WhatsApp Messages”). The relationship between the defendant and Dr Chan started to deteriorate and their relationship ended sometime around 29 May 2018¹.

On 19 June 2018, the defendant submitted a complaint against Dr Chan and the plaintiff to the Singapore Medical Council (the “SMC Complaint”)². On 19, 23 and 25 June 2018, the defendant sent separate individually addressed e-mails to a number of doctors, largely Dr Chan’s colleagues, department heads and the management at SGH as well as 2 doctors in private practice. The e-mails were entitled “Complaint against Dr Chan Herng Nieng for Professional Misconduct” and were prefaced by the following words: “Please take this as a formal notification that I have made an official complaint to the Singapore Medical Council against Dr Chan Herng Nieng for his professional misconduct. I believe SMC will be conducting an investigation very shortly”. The e-mails attached the SMC Complaint.

The plaintiff’s pleaded case in the Statement of Claim (Amendment No. 1) was based on the following words that were contained within the SMC Complaint (the “Offending Words”): “I found out that he has been colluding with Dr Julian Ong, a surgeon from the private practice to take advantage of other vulnerable woman patients”; “I suspect Dr Chan uses his reputation as a platform, together with Dr Ong to “source” and “groom” the patients turned victims”; “Both doctors exchanged potential patients and colleagues who are deemed to be easily taken advantage to satisfy their immoral desires”.

On 4 July 2018, the plaintiff commenced this action in defamation against the defendant. He contended that he had been injured in his reputation and well-being and had suffered distress, embarrassment and hurt to his feelings and sought various reliefs against the defendant.

The trial

The plaintiff and Dr Chan testified for the plaintiff. At the close of the plaintiff’s case, the defendant made a submission of no case to answer. As a result of the defendant’s submission, no evidence was led on her behalf and I expunged her affidavit of evidence-in-chief (“AEIC”) from the record.

In the defendant’s closing submissions, she contended that the defence of justification applied as a complete defence against the plaintiff’s claim.

No case to answer submission

I will first deal with the implication of the defendant’s no case to answer submission. In Lim Eng Hock Peter v Lin Jian Wen and another [2009] 2 SLR 104 (“Lim Eng Hock Peter”), the defendant submitted there was no case to answer. The High Court at [209] accepted the defendant’s submission that the test of whether there is no case to answer is whether the plaintiff’s evidence at face value establishes no case in law or whether the evidence led by the plaintiff is so unsatisfactory or unreliable that its burden of proof had not been discharged. The High Court reached the decision that the publications were defamatory but the defendants were able to rely on the defence of qualified privilege. It is pertinent to note that the High Court held at [210] that a submission of no case to answer did not diminish, in that case, the plaintiff’s burden of proof to establish there was malice on a balance of probability on the totality of the evidence, in respect of the defendants’ pleaded defence of qualified privilege.

Similarly, in TWG Tea Company Pte Ltd v Murjani Manoh Mohan [2019] SGHC 117, the High Court held at [71], that even if the defendant’s no case to answer submission was dismissed, it did not lead to the automatic result that judgment is entered for the plaintiff. While all the claimant needed to show to overcome the submission of no case to answer was that there was a prima facie case, the Court was still entitled to look at the totality of circumstances, the pleadings and the evidence to determine whether the claimant had truly succeeded on the claim on a balance of probabilities. Therefore, a no case to answer submission may be dismissed and yet the claimant may not succeed in the claim. The High Court went on to find at [73] that the defendant would be entitled to rely on evidence adduced by the plaintiff and quoted Lim Eng Hock Peter, where the court “considered all the admissible evidence… including the evidence that counsel from the defendants elicited from the plaintiff in the course of cross-examination”.

My decision

For the plaintiff to establish a prima facie case of defamation, the plaintiff must show that: (a) the statement was defamatory in nature; (b) the statement referred to the plaintiff; and (c) the statement was published: see Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (Second Edition, Academy Publishing, 2016) at [12.010].

There is no dispute that the Offending Words referred to the plaintiff and that they were published.

Natural and Ordinary Meaning of the Offending Words

The principles for determining the natural and ordinary meaning of the words complained of in a defamation action were set out by the Court of Appeal in the case of Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR (R) 465, as follows (at [53]):

“... The court decides what meaning the words would have conveyed to an ordinary, reasonable person using his general knowledge and common sense: Jeyaretnam Joshua Benjamin v Goh Chok Tong [1983-1984] SLR (R) 745 and Jeyaretnam Joshua Benjamin v Lee Kuan Yew ([50]). The test is an objective one: it is the natural and ordinary meaning as understood by an ordinary, reasonable person, not unduly suspicious or avid for scandal. The meaning intended by the maker of the defamatory statement is irrelevant. Similarly, the sense in which the words were actually understood by the party alleged to have been defamed is also irrelevant. Nor is extrinsic evidence admissible in construing the words. The meaning must be gathered from the words themselves and in the context of the entire passage in which they are set out. The Court is not confined to the literal or strict meaning of the words, but takes into account what the ordinary, reasonable person may reasonably infer from the words. The ordinary, reasonable person reads between the lines...”.

Applying the principles in Microsoft’s case, read in the context of the entire passage it was set out, I found the natural and ordinary meanings of the Offending Words to be as follows: Dr Chan colluded with the plaintiff to take advantage of vulnerable female patients; The defendant suspected that the plaintiff and Dr Chan used their position as doctors to source for patients to have sexual activities with; and Both doctors exchanged information about patients and colleagues that they could potentially have sexual activities with.

Whether the Words were defamatory in their natural and ordinary meaning

The test for determining whether statements are defamatory was set out by the Court of Appeal in Aaron Anne Joseph and others v Cheong Yip Seng and others [1996] 1 SLR(R) 258 (“Aaron Anne Joseph”) at [51] as follows:

“….. [W]hether words are defamatory must be determined by an objective test, being whether "the words tend to lower the [appellants] in the estimation of right-thinking members of society generally". ….. We are of the view that these imputations tend to bring the appellants into public odium and contempt and lower them in the estimation of right thinking members of the society. In our judgment, the words complained of in the report were defamatory of the appellants.” (Emphasis added)

Based on the ordinary meaning of the words set out in paragraph 13 above, I found that the Offending Words were defamatory as they tended to lower the Plaintiff’s reputation in the estimation of right-thinking members of society. The defendant is therefore prima facie liable to the plaintiff for defamation, subject to a consideration of any defences. I will next look at the totality of circumstances, the pleadings and the evidence to determine whether the plaintiff has truly succeeded on the claim on a balance of probabilities. The admissible evidence would include the evidence elicited from the plaintiff and Dr Chan while they were on the stand as well as the WhatsApp Messages exchanged...