SUBMISSIONS TO THE COURT OF APPEAL ON BEHALF OF TANG LIANG HONG ("TLH")


By English Top Queen's Counsel Mr. Charles Grey,
a world leading specialist in the law of defamation

1. OUTLINE OF ARGUMENT

 

1.1 The principal arguments to be addressed to the Court of Appeal ("the Court") on behalf of TLH will be as follows:-

(i) that the worldwide Mareva injunctions granted before judgment against not only TLH but also his wife, Mdm Teo, in the massive sum of $11 million were imposed by a Judge, Justice Lai Kew Chai, who ought to have recused or disqualified himself because of his apparent bias ("the recusal issue"); 

(ii) that the Orders made by Justice Goh Joon Seng which effectively struck out the Defences in these various actions should themselves be set aside because they were based on the Mareva injunctions which were themselves in law void or voidable because they were made by a Judge who ought to have recused himself ("the striking out issue"); 

(iii) that the amount of the damages awarded against TLH, namely $8.3 million, is grossly excessive; out of all proportion to any injury done to the Respondents; contrary to established principle and in addition (through no fault of the Judge, Justice Chao Hick Tin) based in one vital respect on a complete misapprehension as to the true facts. That misapprehension relates to the circumstances under which the police reports lodged by TLH came to be publicised in the press. (This is "the damages issue".)

1.2 There are additional subsidiary issues.

 

2. STRUCTURE OF ARGUMENT ON APPEALS

2.2 One would have supposed this was a classic case for consolidation, particularly as 12 of the 13 Suits were part of a concerted campaign to "stop" (that is the Senior Minister's word) TLH in the General Election campaign. The 12 actions were all started around the same time. The purpose of consolidation would of course have been to simplify the litigation and above-all to save legal costs.

2.3 But TLH's application for consolidation was, unaccountably, refused by Lai Kew Chai J. It is a mystery why the application should have been refused. 

2.4 The consequence of that refusal has been that there are reams of documents which are tediously repetitive and utterly pointless. Another consequence has been that throughout, this litigation a platoon of Singapore's most illustrious and no doubt expensive lawyers has been involved, even though most were content simply to adopt the argument of the front runner. Indeed, as the court will see, despite the refusal of consolidation, the Judges have in practice treated the actions as if they were consolidated, save when it comes to making orders as to costs.

2.5 Of great concern is that the impact on TLH of having to face so many separate Suits and so many different legal teams has been appalling in terms of legal costs. He has to pay 12 sets of costs whenever an interlocutory decision goes against him. He has had to pay 14 times the Court fee for lodging the appeals. On top of the damages, the burden of the costs has been and remains truly crippling. 

2.6 The multiplicity of suits and duplication of paperwork poses a difficulty as regards the presentation of the appeals. I am anxious to open the appeals in a manner which is both comprehensible and economic in terms of Court time. Accordingly, if it is convenient to the Court, I will open all the appeals together, to take the appeals individually would be repetitive and wasteful of court time. 

2.7 Accordingly, I propose to proceed as follows:-

(i) start with appeal No. 63 (i.e. Suit No. 1116 of 1996, which preceded and was independent of the election but in which the Plaintiffs are the SM and his son BG Lee) where the principal issue is whether Lai Kew Chai J should have recused himself. A subsidiary issue in that appeal is whether Lai J was justified in making an order against my Instructing Solicitor, Mr Ben Jeyaretnam ("JBJ"), that he show cause why he should not pay costs personally.

(ii) next take the first ground of appeal in appeal No. 64 (which also relates to Suit No. 1116 of 1996), i.e. appeal against the order of Goh Joon Seng J entering judgment for damages to be assessed. This appeal is closely linked to appeal No. 63: it is TLH's case that because he ought to have recused himself, the Mareva and Receivership Orders made by Lai J were void or at least voidable, with the consequence that TLH should not have been debarred from defending himself. There is another ground of appeal in this action, namely an appeal against amount of damages assessed by Chao J. But it is convenient to take all the appeals on quantum together.

(iii) then take the first ground of appeal in series of appeals (Nos. 111-121 inclusive - i.e. 11 appeals in Suit Nos. 2523, 2524, 2525 of 1996; 70, 76, 82, 172, 181, 182 and 187 of 1997), namely that Goh Joon Seng was wrong to enter judgement against TLH in these suits also, for the same reason: namely that the Mareva/receiver injunctions granted by Lai were void/voidable because he should have recused himself. 

(iv) after that will take together the appeals against quantum in all the suits (i.e. the second ground of appeal in No. 1116 as well as the second ground of appeal in the 12 appeals in the election suits). The main reason for adopting this course is that, firstly, common principles of law arise in all the appeals and, secondly, Statute as well as common justice require that the cumulative effect of the awards be taken into account. 

(v) finally take appeal No. 135 (Suit No. 244 of 1997) where TLH's appeal is against decision of Lai J that his Defence in another action brought against him by the PM be struck out as disclosing no cause of action.

 

3. SUPPLEMENTAL STATEMENTS OF CASE

3.2 What emerged was that, astonishingly, it was the SM and the PM who were responsible for handing over to the press the police reports lodged by TLH. That was revealed in SM's Further and Better Particulars of his Statement of Claim in Suit No. 224 of 1997, which were served on 21.7.97 and in an affidavit sworn by the PM in Suit No. 225 of 1997 on 5.8.97. In consequence of that handover, the police reports received massive publicity on the Straits Times and elsewhere.

3.3 What is breathtaking is that 3 of the Respondents (BG Lee in Suit No. 70/Appeal No. 114), Tony Tan in Suit No. 76/Appeal No. 115 and Lee Yock Suan in Suit No. 82/Appeal No. 116) sued TLH as being the person who they claimed was responsible for the republication of the police reports and have been awarded massive damages reflecting huge publicity generated by decision of SM and PM to release the report to the press. Significance in appeals against quantum in those actions is self-evident. 

3.4 But I contend that the revelation has a wider significance: firstly the republication of the police reports, whilst not directly sued on in the other suits, was relied on in aggravation of damages. Secondly, the very fact that PM and the SM saw a political advantage to themselves in procuring the widest publicity for a report which on their case is seriously defamatory of them makes it crystal clear that their libel actions against TLH were nothing more or less than a gambit in the political warfare being waged at the election and had little if anything to do with vindicating their reputations. The same goes for the other Respondents. Again the repercussion on the level of the damages awarded is manifest. 

I will not at this stage elaborate the argument, since at present I am simply seeking leave to advance this further ground of appeal. I invite the Court to hear argument on this further ground as a matter of justice to TLH. If it can now be demonstrated that the awards of damages were made on a false premise, it would be wrong for this Court to decide the damages issue without taking this new information into account.

 

4. THE IMPORTANCE OF THESE APPEALS

4.1 I have already sought to identify the specific issues to which these appeals give rise. But I should stress on behalf of TLH that it is his contention that underlying those specific issues there lurks a question of major importance to the conduct of political affairs in Singapore.

4.2 That question is whether, in a mature democracy as Singapore has become as the 20th century comes to an end, it is acceptable that the laws of defamation should be capable of being used in such a way as to stifle political debate and to snuff out political opposition. To put it another way, should the right of freedom of expression guaranteed by the Constitution be allowed to be eroded by draconian awards of libel damages.

4.3 It is TLH's case that, by the manner of their conduct of this litigation (and one must assume that the steps taken by the Respondents' lawyers have been taken on their clients' instructions) and by the scale of the awards of damages and orders for costs, he has been driven out of politics and indeed driven out of this country. In short he claims to have been the victim of an injustice perpetrated by the Respondents.

4.4 I invite the Court to have these considerations in mind when listening to argument on behalf of TLH.

 

5. THE FACTUAL BACKGROUND

This account is intended to be brief and chronological and will follow on the numerous applications, injunctions, orders and judgments in the course of the proceedings.

20.6.96 Writ served in Suit No. 1116 of 1996. Plaintiffs the SM and BG Lee. Action concerns receipt of early bird discounts on purchase by the Plaintiffs of luxury apartments. Action against TLH's co-Defendants settled for HK$11 million, but Plaintiffs seek additional damages from TLH. The principal defence is fair comment. This action stands alone: earlier in time than others and ante-dates TLH's entry into politics. Noteworthy that, in contrast to later actions, the Plaintiffs were initially content to allow it to proceed at leisurely pace. See #2.5-6 of Appellant's Case ("AC") in Appeal No. 111. 

27.12.96 Reports begin appearing in press that TLH, standing as opposition candidate, is anti-Christian, Chinese chauvinist etc. etc. The PM has admitted publicly that this was result of a decision taken after Cabinet on 24.12.96 to "expose" TLH. TLH vehemently denies the allegations of chauvinism etc. Not a shred of evidence has been produced in support of them. See #2.7-8 of AC in Appeal No. 111. 

31.12.96 When TLH calls the allegations against him lies, he is served with 3 writs claiming damages for libel issued by 3 different firms of lawyers. See #3.2 of AC in Appeal No. 111. 

1.1.97 TLH lodges reports with police complaining that the allegations against him are unlawful. The police pass the report to the PM/SM, who cause it to be released to the press. See #2.10 of the AC in Appeal No. 111. 

21.2.97 Lai J dispenses with service of the Mareva/Receiver injunction on TLH. 

23.1.97 TLH applies to strike out the Statements of Claim which have been served on him on the ground that the actions against him were politically motivated rather than concerned with the vindication of the Plaintiffs' reputation. The applications are heard and dismissed within a record 24 hours of being issued. See p8 of the AC in Appeal No. 111.

27.1.97 The Respondents apply ex-parte to join TLH's wife as Defendant in all the actions, notwithstanding the absence of any cause of action against her. An Order is made to join Mdm Teo as Defendant. At the same time, Lai J grants Mareva injunction in terms which are unprecedented in any common law jurisdiction. The passport of Mdm Teo is illegally seized. See p9 of the AC in Appeal No. 111. 

28.1.97 Inland Revenue officers raid the office and home of TLH in the early hours of the morning. See p10 of the AC in Appeal No. 111.

17.2.97 Application for the appointment of a Receiver is made. Mdm Teo, who is unrepresented and has a poor command of English, seeks an adjournment to obtain legal advice. Lai J refuses the application and an order is made appointing the Receiver. See p11 of AC in Appeal No. 111 as to treatment of Mdm Teo. 

10.3.97 Application that Lai J recuse himself refused by Lai J, who orders JBJ to show cause why he should not pay costs personally.

That same evening at 9 pm Goh J, strikes out Defences and enters judgments for damages to be assessed. 

2.4.97 Lai J refuses to permit monies to be released from Mareva injunctions to enable TLH and his wife to pay for legal representation but orders that such monies may be released to pay the legal costs of the Plaintiffs. 

25.4.97 Application for consolidation of the Suits is refused. 

29.5.97 Chao Hick Tin J, having refused the application of TLH for an adjournment to enable a Queen's Counsel to represent him,, assesses damages in the global sum of $8.3 million and orders TLH to pay the Plaintiffs' costs on an indemnity basis. See RA1 at p96 & 3.3.3(iii) of the AC in Appeal No. 111.

 

6. APPEAL NO. 63: THE RECUSAL ISSUE

6.1 All familiar with the cardinal principle that justice must not only be done but also be seen to be done. See Appellant's case ("AC") #4.3(i). Lai J described it as "indispensable requisite to all exercise of judicial power" (RA1 at p15). 

6.2 It is contention of TLH that it would not have been possible for justice to be seen to be done in Suit No. 1116 with Lai J sitting in judgment. The reason is that, because of his connections with the Plaintiffs and, more importantly, because he was far too close to central issue in the case, reasonable observers would inevitably conclude that there was real likelihood bias. 

6.3 Authorities are set out in #4.3 of AC. Need only cite R v Liverpool City JJ ex p Topping (1983) 1 WLR 119 because that cited in #3.3 of Respondents' Case ("RC"), so common ground that test is "would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for (TLH) was not possible". 

6.4 Stress that TLH's contention is and was before Lai J appearance of bias and not actual bias. This is a crucial distinction. Lai J appears to have been led into serious error by the affidavit of the SM, which speaks incessantly of "attacks" and "accusations" against Lai J. See Record of Appeal ("RA") 3 at pp46-8. This was echoed in the judgment (RA1 at p14, 23 etc). It is not TLH's case on this appeal that there was actual bias.

6.5 What are grounds for asserting appearance of bias? Listed in AC at #4.4:

(a) first and foremost J's own personal involvement in a transaction indistinguishable from that in which the Plaintiffs engaged which is at very heart of defence of fair comment in the libel action; 

(b) the long-standing and close relationship between one of the Plaintiffs, namely SM, and the J. (I do not suggest this alone would disqualify J: see Jeyaretnam v Lee Kuan Yew (1992) 2 SLR 310 at 338F) and 

(c) the unprecedented interlocutory orders already made in this and the related actions by Lai J, which would further incline the hypothetical observer to suspect that a fair trial would not be possible.

6.6 Before this Court I am bound to make further observation: the vituperative terms in which Lai J saw fit to express himself in his judgment lend further support to the conclusion that this was a Judge any rapporteur would immediately say would not appear able to view the case and the protagonists objectively. Cries aloud for an apparently more detached tribunal. 

6.7 The grounds set out at paragraph 6.5 above will be taken in turn: 

(a) Lai J's early bird discount:

The facts in a nutshell are that TLH was approached out of the blue as a concerned citizen by a reporter of Yazhou Zhoukan who asked for his comments on the disclosure that the SM (and other members of his family) had received "early bird discounts" on lavish apartments in development at Nassim Jade. The revelation had caused a furore and debates in Parliament. 

TLH in response spoke words pleaded at #6 S/C (RA2 p52). What he meant was that air would have been cleared if a professional agency had carried out investigation rather than a fellow Minister of the SM and an accountant. But his intention is irrelevant and the Plaintiffs contended for the defamatory meaning pleaded at #7 S/C (RA2 p52). Despite the receipt of the princely sum of HK$4.6 million from the magazine publishers, the Plaintiffs pursued TLH for more money. 

It is the defence of fair comment which placed Lai J in an impossible position. Respondents lay great stress on fact that TLH disavowed any allegation of corruption or impropriety on the part of the Respondents (RC p19; RA3 p53). So it is important to examine what TLH's case was. 

The defence of fair comment is pleaded at RA2 p93, namely that the circumstances of the purchases "merited investigation" by the CAD or the CPIB and had given rise to legitimate public concern. The Respondents make great play of the fact that no charge of actual corruption or impropriety is levelled against them in the defence. But the argument is misconceived. 

The comment sought to be defended by TLH as a fair comment has necessarily to be a defamatory comment (otherwise the defence is meaningless). Whilst no actual corruption or propriety is alleged, the defence of fair comment is certainly by its terms highly critical of the circumstances under which the discounts were given and received (otherwise they would not have merited investigation by the CAD or the CPIB). The basic reason for the criticism is that the Plaintiffs had been in receipt of these very handsome undisclosed discounts, which are not available to the general public, from a public company and apparently by reason of their high office. TLH's case encapsulated in Particulars (13) and (14) at RA2 p98-9. The SM is quite wrong to say in #15 of his affidavit (RA3 p53) that this would not have been an issue at trial. 

Fact that actual corruption disavowed is nothing to the point.

How could the J be seen to adjudicate impartially and dispassionately that critical fair comment defence, when he himself had on the same day ("by coincidence") been the recipient of the same largesse from the same property developers (HPL). See RA3 at p12ff. His own conduct mirroring that of the Plaintiffs would be bound to appear likely to colour his attitude at trial to the criticism advanced in TLH's Defence.

Where any transaction is impugned in legal proceedings, any J who has himself engaged in a similar or comparable transaction should immediately recuse himself. 

In the material part of his judgment (#19 at RA1 pp25-6), the J recites the contents of the SM's affidavit but fails altogether to address the crucial question, namely whether in the light of his own involvement in a precisely similar transaction he could as the Judge give the appearance of being fairly to adjudicate on TLH's critical comment. 

(b) relationship between J and SM:

There are disputes in the evidence about the closeness of the relationship. That in itself puts the J in the invidious position of relying in his judgment on "his own personal knowledge" (RA1 pp 11, 24 and 26), although he swore no affidavit and there was no opportunity to challenge or question him. 

What is uncontested is that Lai J is an ex-partner in the firm of lawyers of which the SM was a founding partner and where his wife and brother remain partners. That in itself might make the hypothetical observer wonder whether Lai J was a suitable J, even if Lai J did not personally act for the SM. 

In #10 of his affidavit (RA3 p49) the SM says he is not a "close" friend of Lai J. The difference between acquaintanceship and close friendship is one of degree. In most jurisdictions a Judge in that position would feel obliged to offer to recuse himself on this ground alone. The appearance of judicial independence is vital.

(c) previous interlocutory orders

The hypothetical observer has to be assumed to know the previous history of the litigation and would take it into account when asking himself if justice would appear to be done if the J presided over the trial. 

Some of the principal interlocutory orders are set out in paragraph 5 above. It is the contention of TLH that Lai J had given the appearance of permitting the litigation to be conducted against him in a manner which was oppressive.

For instance, he refused Mdm Teo the opportunity to obtain legal representation before ordering the appointment of a receiver. It was also Lai J who ordered Mdm Teo to be joined as a defendant in her absence. 

Then Lai J had, at the behest principally of the SM, made orders which are unprecedented in any common law jurisdiction. The remarkable features of these orders are listed in the AC at #3.8. (go through). Worldwide Marevas have never before been granted in cases where there was not a prima facie case of fraudulent conduct made out against the defendant and certainly none has been granted before judgment in any libel action. The basis for making such an order against TLH's wife, Mdm Teo, is in legal terms incomprehensible. 

In his judgment on the Mareva application, Lai J omitted altogether to refer to the principal defence of justification. There was no evidence before the Judge to justify the allegations that TLH is a Chinese chauvinist etc (certainly nothing in TLH's August 1994 speech did so) and accordingly TLH was right to call the Respondents in the election suits politically-motivated liars. The Judge at #17 treated TLH as responsible for the republication of the police report in the media which to the knowledge of the SM and the PM was untrue. The evidence did not warrant the making of any injunction. 

Lai J further departed from invariable practice when refusing to permit monies to be released for payment for legal representation for TLH and his wife (see above). 

6.8 The judgment is open to the following further criticisms: 

(i) the sole issue before the J was whether or not there would be the appearance of bias if he conducted the trial. The supposed purpose of TLH's application was at best of peripheral relevance. But the J, following the affidavit of the SM, devoted much of his judgment to attacking TLH's conduct and motivation: see RA1 pp8-15. 

(ii) at #11 of his judgment (RA1 p15) Lai J wrongly held that, where allegations of bias are made against a judge, they should ... be made before him.

(iii) in #13 (RA1 p17) of his judgment Lai J misapprehends the issue. Counsel for TLH had complained that Lai J should have declared an interest, that is, disclosed to the parties his involvement in a comparable transaction. It was not and could not be suggested that Lai had an actual pecuniary interest in the case. 

(iv) Lai J wholly misunderstood the thrust of TLH'S case as to why the J's position as an early bird purchaser disabled him from appearing unbiassed when adjudicating on the fair comment defence: see above and #4.8(ii) of the AC.

(v) above all the vituperative and abusive terms in which throughout his judgment the J referred to TLH would have caused any hypothetical observer to conclude that the J could not preside over the trial with any appearance of balance and detachment. Lai J saw fit at an ex parte interlocutory hearing to call TLH a liar; a coward; malicious; scurrilous; vicious; poisonous etc etc. How could the observer imagine that a judge who had in the absence of TLH expressed himself in this way determine fairly at trial the issue of, for example, malice on the part of TLH?
 

7. THE ORDER THAT TLH'S SOLICITOR PAY THE COSTS OF THE RECUSAL APPLICATION OUT OF

HIS OWN POCKET AND ON AN INDEMNITY BASIS

7.2 Appeal not premature: in #5 of the RC it is argued that this part of the appeal is premature since the J has not yet made a final order for costs against JBJ. This argument is misconceived. As the Respondents accept, the J has made an order nisi. Such an order can be the subject of an appeal (as, for example, a divorce decree nisi can be appealed). 

7.3 The law: the invariable rule is that costs are ordered to be paid by the parties. (It is certainly no reason to depart from that rule that recovery of the costs against the litigant may prove difficult). Exceptionally, however, a wasted costs order may be made against a party's legal representative. The reason why the jurisdiction is exceptional is given in Ridehalgh v Horsfield (1994) Ch 205 at 226B-C. See also Tolstoy v Aldington (1996) 1 WLR 736 at 747E-H. 

7.4 Such an order can only be made where the costs in question have been incurred as a result of any improper, unreasonable or negligent act on the part of any legal representative. The meaning of these terms is defined in Ridehalgh at p232-3. The 3-stage test to be applied is set out in Ridehalgh at 231F-G. At the nisi stage what has to be shown is "an apparently strong prima facie case": see Ridehalgh at p239B-C. 

7.5 Sight should not be lost of the vital public interest in ensuring that those who are unreasonable, unpopular or unmeritorious (or who have fallen foul of the political establishment) are not deprived of legal representation: Ridehalgh at 233F-234F. It reflects no credit on the legal community that TLH has been unable to find any lawyer (apart from JBJ and for a brief period, Major Peter Low) willing to represent him. 

7.6 The facts: the grounds relied on by the Respondents for saying that there was a strong prima facie case of improper/unreasonable/negligent conduct by JBJ are set out in the RC at #7.10. Neither individually nor collectively do they come anywhere near the unjustifiable conduct of litigation which alone entitles a court to make a wasted costs order. 

The common thread underlying grounds (i), (iii), (vi), (vii) and (x) is that it was incumbent on JBJ in his capacity as TLH's counsel to vet or verify the contents of his client's affidavit. The proposition is absurd that any lawyer can be under any such duty. If it were so legal representatives would be under constant threat of being mulcted personally for costs. The duty of counsel is the reverse of that contended for by the Respondents: the duty is to present his client's case fearlessly however much he may disagree or disapprove or doubt it. 

The suggestion that JBJ had to verify TLH's affidavit ignores the realities. TLH was in Hong Kong. Time was short. JBJ applied for an adjournment to enable a QC to be instructed but the application was refused. TLH is a solicitor and so worthy of belief. JBJ should not be treated as bound to accept the word of the opposing litigant or the Judge. In any event. vehement though the SM and the Judge were in their denunciation of TLH's affidavit as lies, the factual inaccuracies are in truth few, viz Lai J did not act for the SM and they are not close friends. 

As to ground (ii) how is it supposed that JBJ could compel his client (who was out of the jurisdiction) to attend court? 

As to ground (iv), the association between Lai J and the SM was but one of a number of reasons for asking the J to recuse himself. The decision of the CA in an earlier case on different facts did not preclude or render improper JBJ's reliance on the association, especially when coupled with Lai J's personal involvement in the Nassim Jade development. 

Ground (v) has been comprehensively dealt with above. 

Ground (viii): TLH had good reason to instruct JBJ to seek open justice and JBJ had no right to ignore those instructions. In any event this ground caused no costs to be wasted.

Ground (ix): what JBJ argued was that Lai J should have declared his interest, ie informed the parties of his early bird discount. 

Ground (xi): demonstrates the invidious position of a Judge hearing an application in relation to which he has relevant evidence to give. Is the advocate duty bound to accept his word, just because he is the judge? If not, how is his word to be tested. Lai J should not have permitted this dilemma to arise.

7.8 Conclusion: not only was JBJ guilty of no improper/unreasonable/negligent conduct, the application was, for the reasons already advanced, well-founded.
 

8. THE STRIKING OUT ISSUE (i.e. THE FIRST GROUND OF APPEAL IN APPEAL NO. 64)

8.2 Before developing the argument, it is convenient to address a preliminary objection advanced by the Respondents. The Respondents light on the fact that TLH has appealed the refusal of Lai J to recuse himself in Suit No. 1116 of 1996 only. So, they argue, TLH cannot challenge the entering of judgments in the other Suits. The fallacy is that the Mareva Injunction was a composite order embracing all the Suits (as was the order appointing a Receiver). If that composite order was voidable, it necessarily follows that the basis on which judgments were entered has disappeared in all the Suits.

8.3 The contention of TLH is as follows:

Every litigant has an inalienable right to have his litigation conducted in accordance with the principles of natural justice. One requirement of natural justice is that litigation should be determined by a tribunal which is free from actual or apparent bias. If an order or a judgment is pronounced by a tribunal tainted by actual or apparent bias, then that order or judgment is void or voidable. Once the order or judgment has been avoided, it necessarily follows that any order or judgment consequential or dependent on the void/avoided judgment or also must also be set aside.

Thus, for example, a litigant cannot be debarred from defending because he is in breach of an order which is void or has been avoided.

8.4 The authorities are clear that, where an order or judgment was made or obtained in circumstances which amount to a denial of natural justice, the consequence in law is that the judgment or order is void or voidable. See


Halsbury's Laws Vol 1(1) #26, 92 & 100
Dimes v Grand Junction Canal Proprietor (1852)
3 HL Cases 759 at 786 and the additional authorities cited in #4:6 - 4.8 of the AC.

8.5 In the present case TLH contends that, for the reasons given above, Lai J should have recused himself. If that contention is upheld, it follows that his Orders granting Mareva injunctions and appointing a receiver were void or have been avoided. (It make no practical difference which). 

8.6 As appears from #20 of his judgment (RA1 p32), the sole basis on which Goh J entered judgment for the Respondents was that TLH was in breach of the (ex hypothesi void/avoided) Mareva and Receiver Orders. As Goh J remarked: "Until the orders are set aside they have to be complied with". Since the entry of judgment was consequential and wholly dependent on the Mareva/Receiver Orders, it follows that the Order entering judgment for damages to be assessed must itself be set aside. To hold otherwise would be to condone a breach of natural justice. 

8.7 Significantly in their case the Respondents wholly fail to address TLH's contention apart from repeating their argument in Appeal No. 63 (see RC Part 1 #3). There follow lengthy submissions as to whether the J improperly exercised his discretion. Discretion has nothing to do with it: If Lai J should have recused himself TLH is entitled as of right and as a matter of natural justice to have the Order of Goh J set aside.

8.8 A fortiori TLH is so entitled since the Re-amended Defence contained formidable defences on liability:

- how can it be defamatory for TLH merely to suggest that it might have been more appropriate if the investigation had been carried out by a professional agency?

- is it not a classic case where, because TLH was speaking of the conduct of senior elected officials, he was entitled to the protection of qualified privilege?

see Derbyshire C C v Times [1993] AC 534

 

- were not TLH's words (if defamatory at all) not within the scope of his defence of fair comment on a matter of undoubted public interest?


9. THE DAMAGES ISSUE (ie THE SECOND ISSUE IN APPEAL NO. 64 AND IN ALL OTHER SUBSEQUENT APPEALS)

9.2 The assessment hearing commenced on Monday 5.5.97. TLH was then (for a short period) represented by Major Peter Low. He had scarcely had time to absorb the Respondents evidence which was not served until Friday 2.5.97. Moreover, he has minimal knowledge of the law of defamation and no other lawyer in Singapore with suitable expertise was willing to represent TLH.

9.3 Accordingly Major Low sought an adjournment of the assessment hearing for the reasons canvassed in RA 12 pp 10-20 in Appeal No. 111, principally in order that TLH might be represented by the Queen's Counsel who had been advising for many months and who was unavailable in early May. The application was opposed and rejected by Chao Hick Tin J. Major Low played no further part in his assessment hearing: RA 12 p28; Judgment in RA1 at p46.

9.4 The consequence was that the Judge heard no argument or submissions on behalf of TLH. The Plaintiffs were not cross-examined. Counsel for the Plaintiffs do not appear to have conceived it to be their duty to draw the Judge's attention to the authorities calling for moderation in libel damage (see below) or to the mitigating circumstances (see below). On the contrary, Plaintiffs' Counsel urged the Judge to take into account irrelevant and inadmissible material (see below).

9.5 The grotesque amounts awarded to the Respondents:

Whether looked at individually or collectively, the sums awarded are grotesquely high. The Respondent who did least well was Lee Yock Suan with $300,000. The lottery winner was the SM who walked away with $2.3 million. The total of $8.3 million defies description.

9.6 The sheer magnitude of the awards suggests that the Judge fell or was led into errors either of principle or of application of principle to the circumstances of these cases. TLH will argue that Chao J was indeed led into numerous such errors.

9.7 The grounds of this part of the appeal are that:

(i) the size of the awards is so inordinately excessive as to call for a reduction by this Court;

(ii) the Judge awarded damages which are disproportionate to the injury to the Respondents and which are out of all proportion to the damages recoverable for physical injuries;

(iii) the Judge ignored the context of the publications complained of and failed to take account of the need to avoid a "chilling effect" on freedom of expression and political debate;

(iv) in his judgment the Judge omitted to take account of material factors and took account of irrelevant considerations (particularly in regard to aggravated damages).

(v) the Judge was wrongly led to understand that it was JBJ who released the police reports to the press, when it was in fact the PM and the SM who were responsible for this blanket republication. It is repugnant that any of the Respondents should recover any damages in respect of publications for which TLH was not responsible.

 The grounds will be taken in turn.

9.8 Inordinately excessive awards: The awards were made by a judge alone, so an appellate court will interfere more readily than in the case of awards made by a jury. The English cases cited in #145-6 of the RC in Appeal No. 111 are for this reason of no assistance. 

9.9. The factors to be taken into account in assessing defamation damages are well known, viz. the gravity of the libel; the extent of its circulation and any aggravating or mitigating circumstances. Having evaluated those factors, the Judge should stand back and seek to fix a figure which fairly reflects the damage which requires to be compensated and which bears a sensible pecuniary relationship to other costs and values: Rantzen v Mirror [1994] QB 670 at 681-2 

9.10 Judged against the current cost of a holiday, a car or even a house or against the average wages earned, the level of awards cannot be justified on any rational basis. (Most people in Singapore earn between $1,000 and $1,500 per month. 47% earn less than $1,500. Average household income is in the region of $2,000 per month.) Looked at from the perspective of TLH, awards which together with costs ruin him and his family and wipe out the fruits of a professional working life are equally unjustifiable. 

9.11 It cannot be said on behalf of any of the Respondents that he has in any objective sense suffered damage: each retains his office, his job, his home and family and circle of friends. Taking the PM as an example, he testified publicly that 1997 had been a good year for him. But in his witness statement he said something rather different. The reality is that none of those Respondents lost much, if any, sleep over TLH's slanders. Such injury as was suffered is utterly incommensurate with the windfall represented by these awards.  

9.12 Disproportionate awards incommensurate with awards of damages for personal injuries. One way of testing the correctness of awards of libel damages is to compare them with awards of general damages for personal injuries. This approach is now required by high authority in Australia and in England: Carson v John Fairfax (1993) 178 CLR 44

John v Mgn (1996) 2 All ER 35 at 50g - 51f, 52c - 54d

9.13 Counsel for the Respondents do not appear to have drawn the Judge's attention to the significance of Carson and John. Neither is referred to in the judgment. 

9.14 The Respondent in Appeal No. 111 purports to deal with this argument in the RC at #166 - 7 and 219 - 223. It is of course true, if trite, that damages for personal injuries are not directly, comparable with damages for defamation (although there is a mental element in both: pain and suffering/injury to feelings). But neither layman nor judge will find it difficult to perceive when the level of defamation awards is out of kilter with personal injury awards. In each category there are numerous variables which enter into the quantification exercise. 

9.15 It is nothing to the point that juries assess damages in England and (in some states only) in Australia. The need for keeping defamation awards in line with personal injury awards is just the same whether the assessment is undertaken by judge or jury. It is just as repugnant to justice that a judge should award defamation damages grossly in excess of the tariff in personal injuries as it is when a jury does so. 

9.16 It is of course correct that neither English nor Australian authority is binding in Singapore. But does Singapore wish to retain inflated awards in isolation from systems of law which have in the past been at least strongly persuasive. It is moreover dangerous to prefer (as the Respondent invites the Court to do at #166 of the RC in Appeal No. 111) to rely on the corpus of Singaporean authorities, when the Plaintiffs in most of them was none other than the SM. 

9.17 TLH therefore invites the Court to compare the instant awards with the prevailing level of awards for personal injuries. When this exercise is undertaken it is immediately apparent that the awards in favour of the Respondents cannot stand.

Examples of the current level of awards of general damages for personal injuries in Singapore are as follows: 

for quadriplegia ... $180,000 (1989)

for paralysis below the waist ... $120,000 (1989)

for severe head inuuries ... $100,000 (1980)

for amputation of one leg ... $50,000 

Even if allowance is made for inflation since the awards were made, the damages awards in these cases are obscenely high in comparison with the awards for devastating physical injuries. The discrepancy is an affront to justice. 

9.18 The "chilling effect" on freedom of expression and political debate: The intensely political flavour of these actions shines out from, for example, the witness statement of the SM: See RA6 in Appeal No. 111 at pp 146 -154. (Admittedly Suit No. 1116 of 1996 and Suits Nos. 181-2 and 187-8 of 1997 were not brought in respect of statements made during the election campaign but the subject matter of those Suits is also of a political nature). The remaining Suits were commenced in consequence of a concerted decision by Cabinet Ministers to "stop" TLH becoming an MP: Judgment at RA1 p49, p55. The political agenda underlying these actions is pellucidly clear. It is moreover TLH's case that the Plaintiffs' allegations against him of racism and religious chauvinism are fictions invented by the Plaintiffs for their own political ends. The evidence adduced in support of those allegations is worthless (and mostly hearsay): see RA4 in Appeal No. 111 at #3 - 4, 13-23. 

9.19 The Plaintiffs' political motivation is in itself a reason for clamping damages at a modest level. Libel actions are for vindicating reputation and not for use as political bludgeons. 

9.20 But the political complexion of these actions raises a wider issue of acute public concern in Singapore. The present case demonstrates the eagerness of top-level politicians to use the defamation laws to bludgeon their political opponents and hostile commentators. The same pattern is evident in earlier cases, namely -

Suit No. 218 of 1977 Lee Kuan Yew v Jeyaretnam;

Suit No. 9332 of 1984 Lee Kuan Yew v Seow Khee Leng;

Suit No. 1754 of 1988 Lee Kuan Yew v Jeyaretnam;

Suit No. 3336 of 1987 Lee Kuan Yew v Far Eastern Economic Review;

Suit No. 1488 of 1994 }

Suit No. 1490 of 1994 } Lee Kuan Yew v Herald Tribune

Suit No. 1116 of 1996 Lee Kuan Yew v Yazhou Zhoukan

 

9.21 The eagerness of heavyweight politicians to use the laws of defamation for political ends, coupled with the historic willingness of the judiciary to make swingeing awards of damages, has two principal consequences:

(i) electors will be deterred from putting themselves forward as opposition candidates for fear of being harassed and ruined by defamation suits brought by senior members of the governing party and

(ii) political debate (whether between candidates or in the media) will be stifled particularly at election time and the precious right to put forward unpopular views will be eroded.

Such consequences are to be deplored in any democracy. The free exchange of ideas and information is the lifeblood of democracy: See City of Chicago v Tribune (1923) 139 NE 86, cited in Derbyshire at p547G. 

9.22 TLH is not arguing that politicians should forfeit the right to protect their reputations by means of libel actions. The Constitutional guarantee is subject to the law of defamation. What TLH does urge is that, for the reasons elaborated above, the level of damages in political cases must be moderate if the anti-democratic consequences set out in #9.21 are to be avoided. The awards in the present case cannot on any view be called moderate. 

9.23 Errors and omissions in the judgment of Chao Hick Tin J: It goes without saying that, in assessing damages, the Judge should confine himself to relevant considerations and that he should take account of mitigating as well as aggravating factors. It is submitted, with respect, that Chao Hick Tin J failed on both counts. 

9.24 The Judge took into account and attached importance to matters which are irrelevant, namely:

(i) having found that the PAP leaders were determined to prevent TLH entering Parliament (RA1 at p49), the Judge in #25-36 and 107-8 of his judgment (RA1 at pp50-55 and 91-2) recited at length the reason why PAP leaders considered TLH to be a chauvinist and racist. He is nothing of the kind and the evidence to the contrary is nebulous and prejudicial. More important, none of this bears on the quantum of damages. 

(ii) in #53-63 and 68-74 of his judgment (RA1 pp 64-69 and 71-74), the Judge mis-characterises the statements made as this litigation proceeded. TLH was not so much criticising the Respondents as the oppressive way he considered that he was being treated by the Courts. Whether one agrees with his view or not, such remarks cannot be relevant in aggravation of damages or at all. 

(iii) in #64-67 of his judgment (RA1 pp69 - 71) the Judge took account of TLH's non-compliance with the Mareva Order and his non-cooperation with the Receiver and his application to disqualify Lai Kew Chai J. However much the Court may deplore such conduct, it is wholly irrelevant to the quantum of damages. Furthermore, these matters were not pleaded in aggravation of damages (see RA2 p124) and so the Respondents could not rely on them. 

(iv) it is plain from #85 of his judgment (RA1 at p80) that the Judge included as an element in his assessment TLH's "contemptuous" remarks about the Court. Not only is this irrelevant (see (ii) above), it is punishing TLH for his conduct which is not a legitimate function of compensatory damages. If, as he claimed at #112 of the judgment (RA1 p94), scandalising the Court was a matter to be taken up at some other time, why mention it at such length? 

(v) when assessing damages in Suit No. 1116 of 1996 (Appeal Nos. 63 and 64), the Judge firstly referred to the intention of TLH which is wholly irrelevant : see judgment at #99 (RA1 at p87). The Judge at #97-98 and #101-2 (RA1 p86 and 88) refer to matters that are neither relevant on damages nor pleaded in aggravation: see RA2 in Appeal No. 63 at p59.

9.25 The Judge failed to take account of mitigating factors:

TLH relies principally on the self-evident political agenda which prompted and underlay all these actions. The PAP leaders (as the Judge described them) are all political heavyweights. The actions were designed to remove TLH from the political arena. TLH, a flyweight in comparison, had the temerity to punch back. The result was a deluge of writs. But no impartial observer would consider that the blows landed by TLH caused even bruising, still less more serious injury. If they had, why did not the Respondents sue the Straits times and other papers. 

9.26 Further the Judge failed to analyse the extensive degree of overlap between the actions, arising out of the numerous statements of TLH relied on in aggravation of damage. For example, the words complained of in Suit No. 172 (see the judgment at #42 in RA1 at p58) added little or nothing to the matters complained of in Suit No. 1116. Yet on top of the $1 million awarded in Suit No. 1116, the Judge awarded a further $950,000 to the SM and BG Lee in Suit No. 172. The further award is wholly disproportionate. 

9.27 Errors of Principle: The Judge ought to have taken account by way of ............ of damages of the matters referred to at #9.12 -9.18 above but he wholly failed to do so. Whilst accepting at #82 of the judgment (RA1 p78) that Singapore law is the same as English law on assessment of damages, he wholly ignored the landmark cases of Rantzen and John

9.28 Error of fact: The finding at #46 of the judgment (RA1 at p60) is wrong. this is dealt with at #9.30 below. 

9.29 Inadequacy of ratio in judgment : in the section of his judgment headed "Assessment" the Judge devotes 4 pages to the law (RA1 pp80-84); 7 pages to Suit No. 1116 (RA1 pp84-90) but only 3 pages (RA1 pp90-92) to all the remaining Suits which involved all 11 Plaintiffs, 12 separate actions and hundreds of pages of pleadings and evidence. There is no rationale expressed for the figures arrived at when totalled over $5 million. 

9.30 The Judge's misapprehension as to the facts (TLH's Supplemental Statement of Case: at #46 of the judgment (RA1 p60) the Judge found as a fact that the police report was released to the media through JBJ and that TLH knew and intended it would be so published and that it (i.e. the release was so timed as to extract maximum political advantage. These findings were all absolutely false (as the Respondents appear to accept: see RC at pp160 -161). 

9.31 The truth of the matter was that it was the PM and the SM who themselves saw fit to procure the widest publicity for words which they and the other Respondents now choose to treat as the vilest of libels upon them. 

9.32 The true facts concerning the release of the police reports were assiduously obfuscated by the Plaintiffs through their legal advisers : see by way of example the pleadings (RA2 at p128), the witness statement of the SM (RA6 at p161). This amounts at least to "suppressio veri". 

9.33 The truth emerged in the course of libel actions brought by PAP leaders (including the PM and the SM) against another political opponent, namely J B Jeyaretnam. In those actions, the Plaintiffs disingenuously sought Further and Better Particulars of his alleged republication of the police reports, when it was the PM and the SM who had released it. But in Particulars of the Statement of Claim served on 21.7.97, the SM conceded for the first time that he and the PM had procured the release of the police reports. The PM made a similar admission in an affidavit he swore in August 1997. 

9.34 The emergence of these facts has a profound significance in relation to the assessment of damages in these cases. In the first place, in Suits Nos. 76 and 82 (Appeal Nos. 115 and 116) the Respondents Tony Tan and Lee Yock Suan included in their Statements of Claim claims for damages in respect of the republication of the police reports in the press. Given the huge scale of this republication in English, Chinese, Malay and Tamil newspapers, the republication obviously accounted for the overwhelming part of the damage being claimed. The publication of the reports to the police was privileged and in any event caused minimal, if any, damage. 

9.35 Both Tony Tan and Lee Yock Suan gave evidence that TLH has been responsible for the republication: see notes of evidence at p98 and 204. Counsel for the Deputy PM Lee Hsien Loong made submissions to like effect (paragraph 2 of Annex C to Submissions and Verbatim Notes p505). These submissions were adopted by Counsel for Tony Tan and Lee Yock Suan. (It is to be regretted whilst this evidence was being given and these submissions were being made, neither Counsel for the SM nor Counsel for the PM informed the Court of the true position; nor did they correct the error in the judgment. Counsel for the SM told the Judge that TLH's non-admission for the republication had been struck off: verbatim notes p70.) 

9.36 It follows that most of the awards of $350,000 and $300,000 to Tony Tan and Lee Yock Suan were attributable to the republication of the police reports for which TLH has not one shred of responsibility. These awards cannot stand. The submissions at #159-160 of RC are not understood. 

9.37 But the revelation about the police reports has a far wider significance. In the first place, the fact of the police reports and its republication featured in the pleadings and in the evidence in the other Suits (ie apart from Suit Nos. 76 and 82). The Judge's approach to damages in those Suits must inevitably have been coloured by what he had found wrongly to have been TLH's role in maximising the publicity for his libels. 

9.38 But, secondly, the revelation that the PM and the SM had chosen to play politics with the police reports which they professed to regard as a gross libel provides yet further evidence of the true nature of these actions. Far from being actions to repair damage to reputation and vindication of their reputations, these Suits were in reality conceived and pursued by all these Respondents as the means to exterminate a political opponent. All may be fair in love, war and politics. But it is respectfully submitted that the Courts should not lend their support to such warfare by making extravagant awards of damages for defamation to the combatants. 

9.39 If the Judge had known the true facts concerning the police reports, he could and certainly should sharply have reduced the level of damages.

 

10. THE APPEAL IN CIVIL APPEAL NO. 135 (Suit No. 244 of 1997)

10.1 In this appeal, TLH appeals against the Order of Lai Kew Chai J striking out the Defence and entering judgment for the PM for damages to be assessed. 

10.2 Although the Statement of Claim is prolix, the action is a straightforward claim by the PM for damages for slander in respect of words admittedly spoken by TLH to a Straits Times journalist set out in #30 of the Statement of Claim (RA2 at p37). (The previous 15 pragraphs are for practical purposes irrelevant, although they are repeated almost verbatim in the judgment). There is a further claim for libel in respect of the republication of the words spoken by TLH: see #33-4 at RA2 p39-40. 

10.3 TLH by his Defence admitted speaking the words to the Straits Times reporter; that they referred to the PM and that he is responsible in law for the republication of those words in the Straits Times (but not elsewhere): RA2 pp70-72 

10.4 The issues raised by the Defence were:

(i) whether the proceedings amounted to an abuse of the process as alleged in #1 of the Defence;

(ii) whether the words spoken by Mr Tang and republished in the Straits Times bore the defamatory meanings alleged by Mr Goh;

(iii) whether Mr Tang is responsible in law for the republication of his words in publications other than the Straits Times; 

(iv) the double actionability point pleaded in paragraph 17 of the Defence.

Mr Tang does not pursue any appeal in respect of the Judge's finding as to (i) and (iv) above. His contentions as to (ii) to (iii) are at #10.6 below. 

10.5 The application to Lai Kew Chai J by the PM was to strike out the Defence on the ground that it disclosed no reasonable cause of defence. The Judge rightly observed that no evidence was admissible on such an application and that the pleading should only be struck out if the case for doing so is plain and obvious: see #13 of the judgment at RA1 p11. The Judge could and should have added that, for the purpose of deciding the application, he had to assume the truth of what was alleged in the Defence and could only act on undisputed facts. 

10.6 The grounds of appeal are as follows:

(i) The defamatory meanings alleged by the PM:

The Judge having held at #62 of his judgment (RA2 p43) that no question of any legal innuendo arose, the question which the Judge ought to have posed for himself was whether it was plainly and obviously undeniable that the words spoken by TLH in their natural and ordinary meaning bore one or some or all of the defamatory meanings pleaded by the Plaintiff in #37 of the Statement of Claim (RA2 p42). 

But the Judge did not follow that course. Instead he devised a meaning of his own which is set out in 63.2 of the judgment (RA2 p65). This is an illegitimate approach for a judge to take on a striking out application. The Plaintiff is bound by his pleaded meanings. The Judge simply has to apply the striking out test to the Defendant's denials of those meanings. It was not open to the Judge to substitute his own meaning and hold that that meaning was plainly and obviously undeniable. In this respect the Judge misdirected himself: the question was not what meaning the Judge concluded the words bore but rather whether TLH's denials of the meanings asserted on behalf of the PM were plainly and obviously untenable. 

The Judge also misdirected himself in #61 of the judgment (RA2 p43) as to the effect of the leading case Capital & Counties Bank v Henty (1882) 7 App Case 741. What Lord Blackburn actually said at p786 was that "it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the [words]". The Judge turned on its head this classic statement of the approach to be adopted as to the meaning of words when he said that Lord Blackburn made the point that it was not reasonable to a plaintiff to pick the least defamatory meaning. He said the very reverse. 

In any event the meaning put on the words by the Judge goes way beyond what TLH said (or at least it is so arguable, which is all that TLH needed to show on a strike out application). For instance;

(a) the Judge's meaning was that "... the plaintiff most probably would corruptly and illegally use his power and influence as Prime Minister of Singapore to arrest the defendant ....". What TLH actually said was: "Once I go back to Singapore there is a possibility that I may be locked up ... I may be arrested under the ISA ...". The Judge was putting words into Mr Tang's mouth. 

(b) the Judge's meaning includes as one of the consequences of TLH's arrest that he would be unable "to contradict the lies which the plaintiff and others had concocted and spread against him". All that TLH had actually said was that "they were building up this case against me". To build up a case against someone is not (or at least arguably is not) the same as concocting lies about him. Again the Judge is exaggerating the sense of the words used by TLH. 

When told about the PM's assurance, TLH asked the question whether he should believe him. The Judge in his meaning elevates this enquiry into an outright charge that the PM most probably would corruptly and illegally use his power etc. In doing so the Judge ignored the distinction, well recognised in the authorities, between an allegation of actual (or most probable guilt) and an assertion of the existence of grounds for suspicion of guilt:

Lewis v Daily Telegraph (1964) AC 234 per Lord Reid at p260. 

The Judge was wrong to hold that TLH's denials of the PM's meanings were unarguable.

(ii) TLH's responsibility for publications other than the Straits Times

In the Statement of Claim at #33 (RA2 at p39) the PM alleged that TLH knew/intended that his words would be republished not only in the Straits Times but also elsewhere. #34 indicates that the other publications, for which TLH is alleged to be responsible, are those referred to in #41(10) (RA2 p50). 

#10 of the Defence (RA2 p71) pleads clearly that TLH admits responsibility for the republication of his words in the Straits Times but denies the balance of paragraph 33, ie denies the allegation that he is responsible for republications other than the Straits Times. 

In #56 of the judgment the Judge said: "On the facts as admitted, I am further of the view that the defendant also authorised any republication in the mass media of the article in the Straits Times". There was no warrant or justification for the Judge to reach this conclusion on a striking out application. TLH had expressly denied responsibility for the other republications. The Judge dealt with that denial in the last sentence of paragraph 56 of the judgment (RA1 p39) but the meaning of that sentence is obscure. 

The existence of liability for the further republications (which has a vital bearing on the appropriate level of damages) is a question of fact for the trial judge (or jury in some jurisdictions) and cannot be decided in favour of the plaintiff on a striking out application: see Slipper v BBC (1991) 1 QB 283 at 296 and 300.

 

Dated this 22nd day of September 1997.

 

CHARLES GRAY QC