IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE
Suit No. 1116 )
of 1996 ) Between
1. LEE KUAN YEW
(NRIC No. S0000003)
2. LEE HSIEN LOONG
(NRIC NO. S0016646D)
1. TANG LIANG HONG
(ID No. S1096110F)
2. YAU LOP POON
(ID No. not known)
3. MING PAO MAGAZINES LIMITED
(Hong Kong RC No. 175907)
4. DAI NIPPON PRINTING COMPANY (HONG KONG) LIMITED
(Hong Kong RC No. 10077)
DEFENCE OF FIRST DEFENDANT
1. Paragraph 1 of the Amended Statement of Claim is admitted.
2. Paragraph 2 of the Amended Statement of Claim is admitted.
3. The first sentence of paragraph 3 of the Amended Statement of Claim is admitted. The first Defendant does not plead to the second sentence thereof.
4. Paragraphs 4, 5 and 6 of the Amended Statement of Claim are denied.
On or about 23 May 1996, the First Defendant spoke and published to a reporter
from the Magazine Yazhou Zhoukan ("the Magazine") the following
words (hereinafter referred to as "the spoken words") :-
¡° Õâ ÊÂ ¼þ Îª ºÎ ²» ½» ¸ø×¨ Òµ µÄ ÉÌ Òµ µ÷ ²é ¾Ö (Commercial Affairs
Department) »ò Ì° ÎÛ µ÷ ²é ¾Ö (CPIB)£¿ Ëû ÃÇ ²» µ¥ ÊÇ ¸» ÓÐ ¾ Ñé
µÄ Õþ ¸® »ú ¹Ø £¬ ¶ø ÇÒ ÊÇ ÒÔ Ìú Ãæ ÎÞ Ë½ ¼û ³Æ £¬ »á ±È ½Ï ³¬ È» ºÍ
ÄÜ Îª ÈË ÃÇ Ëù ÐÅ ·þ ¡£ ¸ß Ãú Ê¤ ºÍ ²Æ ³¤ ºú ´Í µÀ ±Ï ¾¹ ²» ÊÇ Õâ ·½
Ãæ µÄ ×¨ ¼Ò ¡£ ¡° (Chinese language not able to uncode)
5. Translated into English, the spoken words were as follows:-
"Why wasn't this matter handed over to the professional body like Commercial Affairs Department or Corrupt Practice Investigation Bureau? They are government departments not only rich in experience, but are also well-known for being "iron-faced without selfishness" [a Chinese phrase meaning firm and impartial]. They would be more detached and their reports would have been more convincing to the people. Koh Beng Seng and Finance Minister Richard Hu are after all not experts in this field."
6. It is denied that the spoken words whether in their natural and ordinary meaning or by way of innuendo bore or were understood to bear or were capable of bearing the meanings set out in paragraph 7 of the Amended Statement of Claim or any of them. It is further denied that the spoken words bore or were understood to bear any
meaning defamatory of the Plaintiffs. In support of those denials the First Defendant also relies on the following:-
(1) The spoken words meant and were understood to mean that the public and the Plaintiffs would have been better served if the Plaintiffs had been investigated and cleared of any impropriety in respect of their 1995 purchases from Hotel Properties Ltd. by the appropriate government department or agency, rather than by the Deputy Managing Director of the Monetary Authority of Singapore (Koh Beng Seng) and one of their Parliamentary and Ministerial colleagues.
(2) The First Defendant did not by the spoken words suggest that any
further investigation or report should be made, or was necessary.
7. The First Defendant did not by the spoken words make any statement defamatory of the Plaintiffs or either of them whether as alleged in paragraph 7 of the Amended Statement of Claim or at all.
8. It is denied the words complained of are actionable, whether for the reasons set out in paragraphs 7 and/or 8 of the Amended Statement of Claim or for any other reason.
9. As to paragraph 9 of the Amended Statement of Claim, it is admitted only that the words set out therein were published in the issue of the Magazine dated 2 June1996. Save as aforesaid, the First Defendant does not plead to paragraph 9 of the Amended Statement of Claim.
10. Save that the last paragraph of the translation set out in paragraph
10 of the Amended Statement of Claim should read as follows:-
"... This matter should have been referred to professional agencies such as the Commercial Affairs Department or the Corrupt Practices Investigation Bureau. The reports put up by them would have been more convincing to the people. Koh Beng Seng and Finance Minister Hu are after all not experts in this field"
paragraph 10 is admitted.
11. The words set out in paragraph 9 of the Amended Statement of Claim are not the First Defendant's words and he had and has no responsibility for their publication. It is however denied that those words, whether in their natural and ordinary meaning or by way of innuendo, bore or were understood to bear or were capable of bearing the meanings set out in paragraph 11 of the Amended Statement of Claim or any of them. It is further denied that the words bore or were understood to bear any meaning defamatory of the Plaintiffs or either of them. The words set out in the said paragraph 9 are selectively extracted, taken out of their context and do not convey the true meaning of the article in which they were published. The First Defendant avers that the meaning of the words attributed to him in the article was as set out in the last sentence of paragraph 6(1) above; but what he actually said were the spoken words set out in Chinese in paragraph 4 above.
12. Every allegation in paragraph 12 of the Amended Statement of Claim is denied.
13. It is denied that the First Defendant is responsible for the publication of the words attributed to him in the Magazine newspaper, whether for the reasons set out in paragraph 12 of the Statement of Claim or at all. As set out in paragraphs 4 and 5 above, the first Defendant did not use the words attributed to him by the Magazine.
13A. Every allegation in paragraph 13 of the Amended Statement of Claim is denied.
14. Further or alternatively, the publications of the spoken words set out in paragraphs 4 and 5 above, (alternatively the words so attributed to the First Defendant in the Magazine ) and complained of , were made on an occasion of qualified privilege.
P A R T I C U L A R S
(1) The first and second Plaintiffs were, at the time of publication, the Senior Minister and the Deputy Prime Minister of Singapore respectively.
(2) In April 1996 it was widely reported in the national press that, as was the fact, the Plaintiffs had been given discounts when they bought properties from the Hotel Properties Limited ("HPL"), a development company, in 1995. Those reports provoked anxious and extended public, media and Parliamentary debate over the propriety of the Plaintiffs, and government officials generally, accepting favourable treatment from property developers.
(2A) The Parliamentary debate was arranged by the Prime Minister at the request of the Plaintiffs so that they could be questioned on the circumstances of their purchases and so that (in the words of the Prime Minister to Parliament) "their transactions could be put to public scrutiny".
(3) The Plaintiffs were absolved of impropriety by the Prime and Finance Ministers of Singapore. That was however, without any formal investigation into the Plaintiffs' HPL purchases by any government department or agency in spite of the public debate over the issue.
(4) The above facts and matters were known to the First Defendant, who is a well-known and respected lawyer and citizen of Singapore. As such, he was questioned by a newspaper reporter from the Magazine as to his views on the HPL controversy. His statement, set out in paragraphs 4 and 5 above, was made in response to that questioning and an expression in good faith of his views on the issue.
(5) In so far as the First Defendant's statement was published in the Magazine, and the Magazine has circulation and readers in Singapore, such publication comprised publication to its Singapore readers of matters directly concerning the legitimate and important public debate referred to above; that debate involving matters which the electorate had the right to take into account, and/or interest in taking into account, in assessing whether the Plaintiffs and others should act as their parliamentary representatives or in government, and in considering whether there ought to be rules of conduct governing the acceptance of such or other favourable treatment by parliamentary representatives and members or officers of government. In the premises, such publication was in the public interest.
(6) If necessary, the first Defendant will contend that the publication
of his words was both reasonable and responsible given the facts and matters
set out above and the importance of the matters under discussion.
15. Further or alternatively, the spoken words (as also the words so attributed to the First Defendant in the Magazine) were fair comment on a matter of public interest, namely the conduct of individuals holding high governmental office in Singapore. The first Defendant contends that the words constituted the following comment: that the circumstances under which the Plaintiffs had acquired apartments from Hotel Properties Limited ("HPL") were such as to have merited independent investigation into their conduct by the Commercial Affairs Department and/or the Corrupt Practices Investigation Bureau that it would have been better if the Plaintiffs' conduct had been investigated by the appropriate government department or agency rather than by the said Koh Beng Seng and one of the Plaintiffs' Parliamentary and Ministerial colleagues.
P A R T I C U L A R S
The First Defendant repeats the particulars under paragraph 14 above.
(1) Paragraph 14(1) above is repeated. The first Plaintiff was Prime Minister of Singapore from 1959 to November 1990, and thereafter, in his capacity as Senior Minister, continued to supervise his ministerial colleagues. In 1995, both Plaintiffs owned houses in Singapore where they lived with their families.
(2) In early 1995 residential property prices in Singapore, already perceived to be very high, were rising.
(3) In April 1995 HPL, a publicly quoted property development company, of which the first Plaintiff's younger brother and second Plaintiff's uncle, Dr Lee Suan Yew, was at the material times a non-executive director of HPL, prepared to offer for sale apartments in a residential development project called Nassim Jade. HPL issued a price list in respect of the Nassim Jade apartments, specifying the prices at which each apartment would be offered for sale.
(4) The apartments were due to be put on the open market on 17 April 1995. On 14 or 15 April 1995, while the apartments were being offered for sale in a "soft launch" (a marketing exercise in which HPL offered the properties to a small group of selected potential customers), the wife of the first Plaintiff, an experienced conveyancing and property solicitor, visited HPL offices and chose an apartment to buy. She was quoted, and for the first Plaintiff accepted, a price of $3,578,260-00 , or $1,583-00 per square foot, which price included a 7 per cent discount on the list price. That discount was substantially in excess of the 5 per cent discount normally given to early bird buyers.
(5) At about the same time, in April 1995, the second Plaintiff was sent by his mother a copy of a brochure and price list for the Nassim Jade development. The second Plaintiff contacted Mrs Pamelia Lee, wife of his uncle Dr Suan Yew, and told her that he and his wife were interested in buying a unit. Subsequently, Mrs Pamelia Lee telephoned the second Plaintiff at home and offered him an apartment in Nassim Jade at a price of $3,645,100, which price (as would be apparent from the list price) allowed the second Plaintiff a discount of 12 per cent, that is $437,412, on the asking price. The second Plaintiff accepted the offer.
(6) In October 1995, the first and second Plaintiffs each bought a second apartment from HPL in a development called Scotts 28. The first Plaintiff paid $2,791,500 for his unit; the second Plaintiff paid $2,776,400. Both Plaintiffs received a 5 per cent discount on the list price of the apartments.
(7) As a result of their purchases at a discount, the first Plaintiff received, or might reasonably be regarded as having received, from HPL a financial benefit worth about $416,252, and the second Plaintiff received, or might reasonably be regarded as having received, a benefit worth $643,185 from the company. No publicity was given to the Plaintiffs' purchases.
(8) The first Plaintiff's daughter, brothers, sister, sister-in-law, and his wife's niece also bought apartments in the two developments in 1995.
(9) At no time did HPL seek shareholders' approval for the sale of apartments to the first Plaintiff, despite the fact that such approval was necessary pursuant to clause 1010 of the SES Listing Manual which required approval to be obtained for transactions involving "connected persons" of the Company and those persons' associates. The first Plaintiff, as brother of a director, was an associate of a connected person as defined by the rules. Instead, HPL sought and obtained from the SES a waiver of the requirement to obtain shareholders' approval.
(10) On 22nd April 1996 the Stock Exchange of Singapore ("SES") released a statement censuring HPL for delaying for 11 months before seeking shareholders' approval for the sale of two Nassim Jade units to Dr Lee Suan Yew, a non-executive director of HPL, and Mrs Mary Fu, wife of Peter Fu, a director and substantial shareholder. The first Defendant relies on the whole of the statement issued by the SES and in particular upon the observations of the SES that (a) some of the discounts given to directors and their relatives in respect of the Nassim Jade units were higher than those given to non-related buyers, and that (b) publicly-listed companies have a duty to obtain the best price so as to maximise the return to shareholders.
(11) On the next day, 23 April 1996, the Plaintiffs disclosed publicly that they too had bought HPL properties at discounts the previous year. That disclosure, following closely the SES's censure of HPL, led to widespread public debate concerning the Plaintiffs' purchases at a discount of HPL properties.
(12) Finance Minister Hu recommended to the Prime Minister that the Plaintiffs should consider giving back the difference between what they received in discounts and what the public would perceive as normal discounts of around 5 per cent usually given to early-bird buyers. The Plaintiffs, after much deliberation, responded by sending to the Prime Minister cheques to the value of the difference between the list price of the properties they bought and the prices they paid, but PM Goh directed the Accountant-General to return their cheques to the Plaintiffs.
(13) An investigation into the circumstances and propriety of the sales was necessary because (a) as explained to the first Plaintiff on 1 April 1996 by the Prime Minister, there was a public perception of impropriety (or risk or appearance of it) and (b) as Finance Minister Richard Hu subsequently stated in Parliament, the government faced "a public perception problem"; that is, that given the Plaintiffs' high public offices, questions had arisen as to the propriety of their conduct which had to be, and had to be seen to be, thoroughly and fully investigated. In order to reassure the electorate at a time when a general election was pending, it would have been desirable and/or necessary that such investigation should be conducted by an independent and experienced body such as the Commercial Affairs Department ("CAD"), which is charged with investigating company and commercial irregularities and misconduct, or the Corrupt Practices Investigation Bureau ("CPIB"), whose remit is to carry out investigations with a view to the prevention of corruption and misconduct. It was especially important that the investigation should be conducted independently of the administration in order to dispel any notion that the government was or might appear to be more concerned to avoid any possible effect on the election than to ensure a rigorous examination of the facts and issues relating to the purchases.
(14) On or about 22 March 1996, the Prime Minister, Goh Chok Tong, appointed the Finance Minister, Richard Hu, to investigate the matter; and Richard Hu was helped in his investigation by the deputy managing director of the Singapore Monetary Authority ("MAS"), Koh Beng Seng. Richard Hu is a ministerial colleague of both Plaintiffs and the first Plaintiff has responsibility for advising him on any of the subjects under his (Richard Hu's) charge as Minister; Koh Beng Seng was and is directly answerable to Richard Hu. The first Defendant will contend that it was inappropriate, if legitimate public concern about the purchases was to be allayed, that the investigation should be by persons who were not independent and not seen to be independent of the administration. Neither Richard Hu nor Koh Beng Seng was independent of the administration or of the Plaintiffs.
(15) On 26 April 1996 the Prime Minister publicly announced that there had been no impropriety in the Plaintiffs' conduct. On 21 May 1996, at the commencement of a three-day Parliamentary debate on the issue, the Prime Minister made a statement in Parliament to the same effect. He told Parliament that the debate had been arranged so that the Plaintiffs could be questioned about the circumstances of their purchases. The Finance Minister Richard Hu and the Plaintiffs also made statements in Parliament exonerating the Plaintiffs. No other factual or legal assistance was provided to Members of Parliament to help them with their examination of the issue.
(16) Richard Hu and Koh Beng Seng did not make or submit to Parliament a written report as to the scope or the findings of their investigaton, despite the gravity of the questions in issue.
(17) The conclusion of the investigation, as reported to Parliament, was based solely on the accounts given to Richard Hu and Koh Beng Seng by the Plaintiffs and/or by HPL, that is, by the participants in the sale and purchases of the apartments. Neither Richard Hu nor Koh Beng Seng can lay claim to any specialised knowledge or exertise in the practices or operation of the property market or in carrying out such an investigation.
(18) Richard Hu and Koh Beng Seng accepted without further inquiry that the Plaintiffs, when they accepted HPL's offers, had not addressed their minds to the size of the discounts they received despite the fact that (a) contrary to the statement of Ong Beng Seng, the Managing Director of HPL, the second Plaintiff had been given by his mother, the first Plaintiff's wife, and had had in his possession at the time of his Nassim Jade purchase a copy of the price list for the units, and (b) the Plaintiffs had bought the properties for investment purposes.
(19) Richard Hu and Koh Beng Seng did not claim to have sought or obtained information from Dr Lee Suan Yew or his wife as to their apparently pivotal roles in the purchases, especially the second Plaintiff's Nassim Jade purchase.
(20) Richard Hu and Koh Beng Seng did not claim to have undertaken any investigation into the fact or circumstances of the purchases by the Plaintiffs' extended family of HPL units in Nassim Jade and Scotts 28 in 1995.
(21) No or alternatively no adequate explanation was given as to why HPL had failed to seek shareholders' approval for the sales to the first Plaintiff, but had instead sought and obained a waiver from the SES of the requirement to seek approval. An explanation was called for especially in the light of the fact that the SES had censured HPL in April 1996 for delaying in seeking shareholders' approval for the sales in 1995 of apartments to its directors and other connected persons.
(22) On 23 May 1996 at the conclusion of the Parliamentary debate on the issue the Prime Minister announced new rules requiring ministers to declare all property purchases, including the prices they were paying and any discounts or preferential terms received. The Prime Minister stated that the reason for the measure was that otherwise the public would perceive that "the government's standard of integrity had dropped".
(23) Nothing in these Particulars is to be read as alleging or impliedly alleging that either Plaintiff was in fact corrupt or guilty of any impropriety. The first Defendant makes no such allegation; but in the premises, the circumstances of the acquisition of the said properties by the Plaintiffs were such as to raise questions as to the propriety of their conduct. As the Prime Minister said in Parliament (Official Report, 23 May 1996, column 365):
"This episode has shown how sensitive the public is to perceived privileges and advantages enjoyed by Ministers who buy properties at soft launches or at discount, especially when the market is hot. The public thinks people in positions of power have the inside track and enjoy advantages, which they do not."
The Prime Minister recognised that an investigation had been necessary
or appropriate and in fact specifically instructed Finance Minister Richard
Hu to "investigate and report" (Official Report, 24 May 1996,
column 174). The reasonably appropriate investigation, in order to allay
public anxiety, would have been by an independent body such as the CAD
or CPIB rather than by Richard Hu and Koh Beng Seng, who were not wholly
independent of the administration (including the Plaintiffs) and who were
not equipped to and did not in fact carry out or were not seen to have
carried out the thorough investigation which the circumstances required.
If and in so far as necessary the First Defendant will rely on Section
9 of the Defamation Act.
16. It is denied that the Plaintiffs are entitled to aggravated or any
damages, whether for the reasons set out in paragraph 14 of the Amended
Statement of Claim or at all. It is further denied that the first Defendant
has not apologised or retracted his statement: the first Defendant relies
on paragraph 17 below.
17. If and in so far as is necessary, the First Defendant will rely in mitigation of damages on the following:-
17.1 16.1 Upon receipt of a letter of complaint from the Plaintiffs' solicitors dated 10th June 1996, the first Defendant responded promptly by letter dated 19 June 1996 offering to issue a statement clarifying that he had no intention of criticising either Plaintiff, withdrawing any criticism which his words might have been taken to contain, and expressing his sincere regret if what he had said had been understood by anyone to be defamatory of the Plaintiffs.
17.2 16.2 The Plaintiffs have not, to the date hereof, accepted or made any response to that offer except its implied rejection in their solicitors' letter of 20 June 1996.
17.3 Pursuant to section 16 of the Defamation Act the first Defendant
will rely on the fact that the Plaintiffs have settled their claim against
the second to fourth Defendants in this action and recovered from them
damages for libel in respect of the words complained of in the amount or
approximate amount of HK$4,620,000-00.
18. Paragraph 15 of the Amended Statement of Claim is denied.
19. Save as herein expressly admitted or averred, every allegation in the Amended Statement of Claim is denied.
20. As against the First Defendant the Plaintiffs are not, nor is either
of them, entitled to the relief or any of the relief claimed or to any
Dated this 9th day of July, 1996.
Re-dated this 17th day of July, 1996.
Re-Re-dated this 20th day of January, 1997.