Review Publishing Company Ltd v Lee Hsien Loong

• Jurisdiction: Singapore
• Judgment Date: 07 October 2009
• Date: 07 October 2009
• Docket Number: Civil Appeals Nos 163 and 164 of 2008
• Court: Court of Appeal (Singapore)

Review Publishing Co Ltd and another

Plaintiff

and

Lee Hsien Loong and another appeal

Defendant

[2009] SGCA 46

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

Judith Prakash J

Civil Appeals Nos 163 and 164 of 2008

Court of Appeal

Civil Procedure–Pleadings–Amendment–Applicable principles governing amendment of pleadings–Whether trial judge exercised discretion correctly to allow amendment of statement of claim after hearing of summary judgment applications was over but before decision was given–Whether it was just to allow amendment of statement of claim–Whether appellants denied due process in that they were not given opportunity to amend their defence after amendment to statement of claim was allowed

Tort–Defamation–Defamatory statements–Fair comment–Justification–Qualified privilege–Right-of-reply privilege–Derivative qualified privilege–Reynolds privilege–Natural and ordinary meaning of words–Rule in Slim v Daily Telegraph Ltd [1968] 2 QB 157–Test for determining natural and ordinary meaning of words–State of general knowledge of ordinary reasonable person–Whether ordinary reasonable person would understand offending words in article published in Far Eastern Economic Review to mean that respondents were corrupt–Whether court entitled to find a more defamatory meaning than that pleaded by plaintiff–Whether appellants could rely on defence of justification, fair comment or derivative privilege based on right-to-reply privilege–Whether Reynolds privilege was and had always been part of common law of Singapore–Whether Reynolds privilege should be declared to be part of common law of Singapore–Whether appellants as non-citizen could rely on constitutional free speech–Whether rationale behind Reynolds privilege ought to apply to Singapore citizens in context of publication of matters of public interest–Arts 14 (1) (a), 14 (2) (a) and 162 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Words and Phrases–Meaning of corruption and/or corrupt–Whether meaning of corruption included financial impropriety–Whether National Kidney Foundation and/or Durai had come to symbolise financial impropriety and/or corruption–Whether offending words in article alleged corruption

In 2006, the Far Eastern Economic Review ("FEER") published an article written by Mr Hugo Restall ("HR"), the editor of FEER, titled "Singapore's 'Martyr,' Chee Soon Juan" in its July/August 2006 issue (Vol 169 No 6) ("the Article"). The Article was published in connection with an interview conducted by HR with Dr Chee Soon Juan ("CSJ"), the secretary-general of the Singapore Democratic Party ("SDP"). The Article featured CSJ's account of his relationship with the Singapore government, but also made significant reference to what might be termed "the NKF Saga",ie, the events surrounding the National Kidney Foundation ("NKF") and Mr T T Durai ("Durai"), the former chief executive of the NKF, which arose out of the trial in 2005 of a libel action brought by the NKF and Durai against Singapore Press Holdings Ltd. The Article also used the NKF Saga as a basis for comparing the way in which the NKF had been run during Durai's tenure with the way in which Singapore had been governed by "Singaporean officials", who had (according to the Article) "a remarkable record of success in winning libel suits against their critics".

Mr Lee Hsien Loong, the Prime Minister of Singapore, and Mr Lee Kuan Yew, the Minister Mentor in the Prime Minister's Office and a senior Cabinet Minister (collectively, "the Respondents"), subsequently sued Review Publishing Co Ltd, the publisher of FEER, and HR (collectively, "the Appellants") in two suits for defamation with respect to certain statements in the Article. In the High Court proceedings, the Respondents applied for summary judgment against the Appellants on the basis that the alleged offending words in the Article ("the Disputed Words"), in their natural and ordinary meaning, bore the defamatory meaning that the Respondents were unfit for office because they were corrupt and had set out to sue and suppress those who would question them for fear that such questioning would expose their corruption. The Judge granted summary judgment for both suits, having found that the Disputed Words bore such meaning contended by the Respondents and that the Appellants had no viable defence in law, including the privilege laid down by the House of Lords inReynolds v Times Newspapers Ltd [2001] 2 AC 127 ("the Reynolds privilege"). LHL had initially pleaded a different meaning for the Disputed Words (which the Judge found the Disputed Words not to bear), but had successfully amended his statement of claim ("SOC") in the course of the summary judgment proceedings to plead (alternatively) the same meaning as that pleaded by LKY, which the Judge found the Disputed Words to bear. The Appellants filed appeals against the Judge's decision in the summary judgment applications.

Held, dismissing the appeals:

(1) The test for determining the natural and ordinary meaning of the offending words in a defamation action was well settled in Singapore. Essentially, the court would decide what meaning the words conveyed to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense. It was irrelevant what meaning was intended by the maker or publisher of the statement (ie, the defendant) or what meaning was actually understood by the plaintiff. The natural and ordinary meaning of the offending words was not confined to their literal or strict meaning, but included inferences or implications that the ordinary reasonable person might draw from those words in the light of his general knowledge, common sense and experience. Such inferences or implications were not the same as inferences or implications based onextrinsic evidence, which evidence was not admissible as a matter of law in the construction of the natural and ordinary meaning of the offending words: at [27] to [29] and [31].

(2) The state of the ordinary reasonable person's general knowledge would play a pivotal role in determining the natural and ordinary meaning of the offending words. Such state of general knowledge would naturally be affected and shaped by what was common knowledge in the public domain and by significant (public) events which would reasonably be in the mind of the ordinary reasonable person. The various defamation suits commenced over the years by the Respondents, the NKF Saga, the SDP protest that took place outside the CPF Building and the subsequent defamation proceedings arising from that protest, were all part of the ordinary reasonable person's general knowledge, given that these events happened relatively shortly before the publication of the Article and were all extensively reported and featured in the local press and had gained notoriety among the general public in Singapore: at [33], [34], [36], [40], [41], [45] and [46].

(3) In determining whether the offending words were referable to the plaintiff, the test was an objective one, ie, whether the ordinary reasonable person who, at the material time, was aware of the relevant circumstances or special facts would reasonably understand the plaintiff to be referred to by the offending words, and the context in which the words were used was also relevant. The words "government", "Singaporean officials" and "Singapore's great and good" in the Disputed Words were referable to both the Respondents in the context of the Article. The fact that the offending words referred to a class or body of persons was not,ipso facto, a bar to a successful claim in defamation so long as the ordinary reasonable person could conclude that the statement about the body of persons was capable of being interpreted as referring to the individual: at [49], [50] and [53].

(4) The fulcrum of the Article was the NKF Saga, which HR used as a basis of comparison with the way in which Singapore had been governed by the Respondents, and the striking feature of the Disputed Words was the deliberate association and/or comparison which they made between the highly secretive way in which Durai ran the NKF and the way in which the government controlled huge pools of public money in government institutions. The ordinary reasonable person would in all probability associate the NKF and/or Durai with grave financial impropriety, abuse of power and/or dishonest practices, and these were serious misdeeds which fell readily within the ambit of corruption. By the time the Article was published, the association of the NKF and/or Durai with corruption would have entered the public consciousness, given the intense publicity and extensive coverage given to the NKF Saga in the local media: at [66], [88]and [82].

(5) The statements in the Disputed Words which directly associated the NKF and/or Durai (as well as Durai's misuse of funds and the secretive nature in which the NKF was run) with (a) the Singapore's Government and government officials, (b) the government officials' control of huge pools of public money in different government institutions and (c) the non-transparency of such institutions, would suggest to the ordinary reasonable person that the Respondents were guilty of the same kind of wrongdoing that the NKF and/or Durai were guilty of in the eyes of the general public. The Disputed Words thus bore the defamatory natural and ordinary meaning contended by the Respondents: at [85], [92] and [95].

(6) Order 20 r 5 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) gave the court a wide discretion to allow pleadings to be amended at any stage of the proceedings on such terms as might be just. The guiding principle was that amendments to pleadings ought to be allowed if they would enable the real question and/or issue in controversy between the parties to be determined and delay per se was not a valid objection. However, an important caveat was...