Tan Kok Quan and others v Gao Shuchao

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 31 May 2017
• Neutral Citation: [2017] SGDC 152
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 1361 of 2016
• Published date: 20 June 2018
• Year: 2017
• Hearing Date: 23 January 2017,29 March 2017
• Plaintiff Counsel: Mr Raymond Wong with Ms. Os Agarwal (M/s Wong Thomas & Leong)
• Defendant Counsel: Mr Gao Shuchao (Litigant in person)
• Subject Matter: Defamation - reference to plaintiff,Defamation,justification,fair comment,qualified privilege,malice,damages
• Citation: [2017] SGDC 152

District Judge Chiah Kok Khun: Introduction

The parties involved in this defamation case are all persons of some standing. The Plaintiffs are members of the council of the management corporation strata title no. 3720 (“the MCST”), which is the management corporation of the residential strata development known as Duchess Residences. It is located in a prime residential district.

The 1st Plaintiff, Mr Tan Kok Quan is at all material times the chairman of the council of the MCST. He is a practising lawyer and a prominent member of the bar. He was among the first set of lawyers appointed Senior Counsel on 4 January 1997. He has been a director of several banks and public-listed companies in Singapore.¹ He has also served as the deputy chairman of the Public Utilities Board, as a member of the Military Court of Appeal, and as president on several disciplinary tribunals under the Legal Profession Act. In recognition of his service to the nation, he was awarded the Public Service Medal.²

The 2nd Plaintiff, Mr Kuah Kok Kim was at the material time the treasurer of the council of the MCST and is presently the secretary of the council of the MCST.³ The 2nd Plaintiff has been since 1997, the chairman of MTQ Corporation Ltd, a public company listed on the mainboard of the Singapore Exchange.⁴

The 3rd Plaintiff, Mr Gn Hiang Meng was at the material time the secretary of the council of the MCST, and is presently the treasurer.⁵ He was an investment banker and also the deputy president of the UOL Group before his retirement.⁶ He is presently an independent director on the board of directors of several public companies listed on the Singapore Exchange, namely, Centurion Corporation Limited, Haw Par Corporation Limited, Koh Brothers Group Limited, Sing Haiyi Group Limited and TEE International Limited. He is a council member of the Teochew Federation Singapore.⁷

The Defendant, Mr Gao Shu Chao is the subsidiary proprietor of a unit in Duchess Residences known as No, 108 Duchess Avenue #03-13 (“the Property”). He is an associate professor of law at the Singapore Management University. He acted in person in the case.

At the 4th Annual General Meeting of the MCST on 4th March 2016 (“the 4th AGM”), the Defendant while speaking from the floor said the following words (“the words”):

“Well in the original justification which was listed in the er Chairman’s message to the 2nd AGM er to the 2nd EGM, you said the er justification for er for imposing the special levy was to make for the potential shortfall er created by the er arrears er by the 13 units and the shortfall according to our calculation actually this include not only the shortfall of the arrears but also the legal fees in er pursuing the er owners to pay the arrears. It comes to a total of $303K. So what this means is that by September you have already received more than $260K which should cover more than enough of the arrears that would have occurred before October 2015. Now why didn’t you notify the SPs of the receipt of the payment at that time? Was the management council deliberately concealing the receipt of the payment or was the management council misrepresenting to the SPs that you have not received the payment? ...

… base on the facts. I could only draw possible 2 possible conclusions. One conclusion is there has been deliberate conceal. The other conclusion is that … There was a misrepresentation ...

... Mr. Chairman, first of all. Regarding er the debate on whether or not this is a concealment or misrepresentation, I do not want to debate about this. I just want to … I just want to point out the fact that this was not disclosed immediately after you received ... the payment in September ...

... As I said, as I do not want to debate on that I just want to point out the fact that it has not disclosed immediately ... after you received the payment ...”

The Plaintiffs take exception to the words and make claims in defamation. The Defendant does not dispute the words were said at the 4th AGM. However, he denies that the words are defamatory. He also runs the entire gamut of defences, of justification, fair comment and privilege. Further, the Defendant responded with various counterclaims. They include: misrepresentation; breach of statutory duty under the Building Maintenance and Strata Management Act (“the BMSMA”); breach of fiduciary duties as members and officers of the council of the MCST; and defamation.

The approach in law to defamation is to first determine whether a case in defamation is made out. Once defamation is established, the next stage is to determine if any of the defences apply. In addition, in the case of slander, an additional question is whether it is actionable per se, without the proof of special damages. The issues to be decided in this case are therefore as follows:

Issues

In relation to the Plaintiffs’ claim: Whether the Plaintiffs’ cause of action in defamation is established; Whether the Plaintiffs’ cause of action in defamation is sustainable without proof of special damage; Whether the Defendant can rely on the defence of justification; Whether the Defendant can rely on the defence of fair comment and if so, whether the defence is defeated by malice on the part of the Defendant; Whether the Defendant can rely on the defence of qualified privilege and if so, whether the defence is defeated by malice on the part of the Defendant; and What is the measure of damages payable by the Defendant to the Plaintiffs if a case in defamation is made out and there is no defence.

The issues in relation to the Defendant’s counterclaims are as follows: Whether the Defendant’s counterclaim in misrepresentation is established; Whether the Plaintiffs had breached their statutory duty under Section 61(1) of the BMSMA; Whether the Plaintiffs had breached their fiduciary duties as members and officers of the council of the MCST by failing to use reasonable care and diligence; and Whether the Defendant’s counterclaim in defamation is established.

Is the Plaintiffs’ cause of action in defamation established?

The law on defamation is well established. There are three essential elements required to found an action in defamation. These are: a statement bearing a defamatory meaning; publication to a third party; and reference made to the plaintiff. (See: Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 (“Golden Season”) at [34])

The Plaintiffs therefore have to show that the words were defamatory of them. They also have to prove publication of the words and that the words referred to them. I turn first to the question of whether the words were defamatory.

Defamatory meaning

A statement is defamatory in nature if it: lowers the plaintiff in the estimation of right-thinking members of the society generally or ordinary reasonable people; causes the plaintiff to be shunned or avoided; exposes the plaintiff to hatred, contempt or ridicule. (Golden Season at [36]).

In Goh Chok Tong v Jeyaretnam Joshua Benjamin and Anor [1998] 2 SLR(R) 971 (“Goh Chok Tong”), the Court of Appeal held at [44] that the law of defamation is concerned with the meanings of the words conveyed to the ordinary man and ascribes two types of meanings to the words: the natural and ordinary meaning; and the innuendo meaning.

It was stated at [44] that the ordinary meaning is “derived from the words themselves, read or heard in their proper context and in the circumstances in which they were said, while the innuendo meaning is arrived at with the aid of extrinsic facts known to the ordinary man”.

The Court of Appeal set out succinctly the principles applicable in determining the natural and ordinary meaning of words in defamation actions in Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR(R) 465 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 [1984-1985] SLR 516; and Jeyaretnam Joshua Benjamin v Lee Kuan Yew, supra. The test is an objective one: it is in 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...”

In this one passage above the Court of Appeal has condensed the legal principles on meaning of words in defamation action.

In another Court of Appeal decision, Chan Cheng Wah Bernard v Koh Sin Chong Freddie [2012] 1 SLR 506 (“Chan Cheng Wah”) at [18] the rules applicable to the construction of words based on their natural and ordinary meanings are set out as follows: the natural and ordinary meaning of a word is that which is conveyed to an ordinary reasonable person; as the test is objective, the meaning which the defendant intended to convey is irrelevant; the ordinary reasonable reader is not avid for scandal but can read between the lines and draw inferences; where there are a number of possible interpretations, some of which may be non-defamatory, such a reader will not seize on only the defamatory one; the ordinary reasonable reader is treated as having read the publication as a whole in determining its meaning, thus “the bane and the antidote must be taken together”; and the ordinary reasonable...