IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE
Civil Appeal No. 63, 64, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121 and 135 of 1997
TANG LIANG HONG
1. LEE KUAN YEW
2. GOH CHOK TONG
3. TEO CHEE HEAN
4. CH'NG JIT KOON
5. OW CHIN HOCK
6. CHIN HARN TONG
7. KER SIN TZE
8. SENG HAN THONG
9. LEE HSIEN LOONG
10. TONY TAN KENG YAM
11. LEE YOCK SUAN
SUBMISSIONS OF MR CHARLES GRAY QC
IN REPLY ON
BEHALF OF THE APPELLANT ("TLH")
Failure of Respondent to Address Issues
1. Argument of Mr Tan Kok Quan SC
(a) Appeal No. 63 of 1997
1.1 Argument that Notice of Appeal served in Suit No. 1116 only. True : but if Court of Appeal ("CA") rules in favour of TLH on the recusal issue, it necessarily follows that Mareva / Receiver order avoided which removes the basis of Goh J's order (ie that TLH in breach of Mareva / Receiver orders).
1.2 Delay in applying for recusal of Lai J : what is at stake in recusal issue is breach of natural justice which cannot be ignored or waived by delay. If Lai J was apparently biased, his orders are automatically avoided, just if made with jurisdiction or ultra vires : Halsbury's Law 41(1) para 100.
1.3 Relevance of antecedent history : what had transpired is entirely irrelevant to the recusal issue. No such thing as a trival breach of natural justice. Court cannot overlook it.
1.4 Early-bird discounts : counsel stressed repeatedly that no actual corruption / impropriety alleged. True : but what counsel did not address is argument that the fair comment defence involved TLH saying that propriety of the transaction is questionable : see the Particulars at RA2 p98. How could Lai J determine that issue with apparent detachment ?
1.5 Claimed that trenchant criticisms of TLH in judgment were (a) made after careful consideration and (b) relevant : they are neither. No time for consideration. What relevance do TLH's honesty and his conduct of litigation have to issue of apparent bias ? The epithet used are numerous and venomous and gratuitous.
(b) Costs against JBJ
1.6 In both Arab Monetary Fund and Thatcrhe cases, CA held that allegations of bias should not be made recklessly and on the mere say-so or instructions of clients. See pp.150, 151 of former case; p.168 of latter. Note that in neither case was wasted costs orders made or asked for.
Facts were that TLH is a professional man ; he swore an affidavit; he purported to speak from his own knowledge; he was in Hong Kong. It is utterly unrealistic to criticise JBJ for rendering affidavit. In point of fact the errors in it are minor.
In standing his ground in face of judicial onslaught, JBJ acting in best traditions of Counsel's conduct and certainly not acting improperly.
1.7 The allegation that JBJ should pay costs because his client accused his Deputy Registrar of impropriety shows how threadbare is the case against JBJ. All TLH said was that it was unusual for him to refuse to extend time.
(c) Appeal No. 64 of 1997
1.8 Argument that Mareva / Receiver orders were voidable only and had not been avoided when Goh J struck out Defence : argument is wrong in law. "Voidable" means capable of being declared void by party affected. When judgment or decision is avoided, it retrospectively becomes void ab initio. So, if the CA finds in favour of TLH on the recusal issue, the Mareva / Receiver Order will be treated as if void throughout. So basis for Order of Goh J removed.
1.9 Argument that damage can be increased by reason of TLH's attacks on judiciary : such attacks may not endear TLH to Court, but he must not be punished for them because damages are compensation for the plaintiffs.
(d) Appeal No. 114 of 1997
1.10 Police Report : 2 Separate issues :- (1) why SM and PM released to press and (2) why fact of release concealed in the Tang's proceedings. As to (1) explanation of the PM is bizarre (that people would think he had something to hide if he did not disclose it). As to (2), despite my clear invitation no explanation forthcoming why police report features in the claims of the plaintiffs in Suit No. 70, 76 and 82 and the claims in aggravated damages of the PM and SM and others in the pleadings and evidence; nor any explanation or excuse why Chao J not informed. No excuse that TLH did not ask. He had no inkling that SM and PM were behind it.
2. Argument of Mr Davinder Singh SC
2.1 Counsel engaged in prolonged (and selective) review of facts and procedural history. At the invitation of the Court I desisted from doing so. The CA is concerned with the clearly identifed issues of law / principle raised by the appeals. Counsel barely addressed these issues.
2.2 Claimed only 1 suit related to general election : true, but flavour of all suits highly political.
2.3 Evidence of TLH's chauvinsim : all impressionistic and unspecific. Sedan Chair quote shows nothing. 1994 speech is illuminating : RA 11 in Appeal 64 at p30. Besides actions speaks louder than words : all 3 children have English education; one daughter is Christian; TLH learned Indian dancing and speaks Malay eloquently. TLH looking forward to disproving allegations of lies but defence of justification struck out. What of accusations that anti-Malay / Islam etc ?
2.4 Claim that precedent for Mareva in defamation : Chohan v. Saggar is not a defamation case.
2.5 Claim that bias only affects Suit No. 1116/96. Unrealisitic submission. Bias certainly affect Suit No.1116/96. But also any proceedings involving SM and BG Lee. Cannot hive off other actions for trial by another judge. Moreover, the vituperative comments about TLH in his judgment infect all actions.
2.6 Claim there were 12 Marevas / Receiver Orders : all applications heard together submissions by single Counsel; Composite judgment; Single order served on TLH. Respondents cannot now carve Composite order into 12.
2.7 Suggested damages aggravated by conduct of appeal : see Gatley paragraph 1329. Misconception as to nature of aggravated damages : see Gatley paragraph 1327. NOT punishment.
2.8 Police Report : counsel accpeted that (1) J made wrong finding of fact (2) that J not corrected (3) republication relief on in Suit 2523/96. But no explanation vouchsafed for reliance on republication and failure to come clean.
2.9 John v. MGN : dicta unrelated to jury trial rationale is at p54 : justice and public opinion demand rational and just relationship. Does Singapore want to go its own way? Carson. ( NB. No counsel addressed the arguments based on proportionality / cost of living / level of earnings / chilling effect).
2.10 Suggested overlap not a problem because separate torts to be considered separately : this submission is simplistic. Where plaintiff has recovered $X in Suit A, that must reduce damage in Suit B. The aggravation claims involve double counting. See. S.16 Defamation Act (R's authorities in Appeal 64 vol 2).
3. Argument of Mr K Shanmugan
3.1 Counsel wrongly claimed position on striking out application is no different at trial.
3.2 J should simply have looked at pleaded meanings and asked if denial of those meaning was unarguable. Instead J altered and elevated the meanings beyond what TLH said.
3.3 Republications apart from Straits Times : clear from paragraph 56 of the judgment that J took account of these. J was wrong to do so without giving TLH a hearing.
3.4 Explanation how the PM obtained copy of police report, namely from Home Affairs Minister : it is highly irregular for a senior member of the executive to be able to interfere with normal process of police enquiry by procuring police report cf Criminal Procedure Code.
4. Argument of Mr Wong Meng Meng
4.1 Case of Hunter distinguishable : that was separate action to undermine final criminal verdict. Public policy.
4.2 Waiver in relation to recusal issue : cannot by delay waive a denial of natural justice. See paragraph 1.2 above.
4.3 In Dimes HL affirmed judgment : true but the correct analysis is that, if TLH succeeds on the recusal issue, the Mareva / Receiver orders are avoided retrospectively (see paragraph 1.8 above), so that no basis for Goh J's orders at the time he made them. Makes no difference if CA reimposes Marevas. No argument has been put forward that the Mareva Order was rightly granted.
4.4 Contention that, if TLH intended the police report be republished, immaterial that republications procured by PM / SM : no evidence TLH so intended. Contention is in any event absurd : take example of boy intending to throw stone through window. Another boy gets in first and throws stone breaking windows. Does the first boy have to pay damages for the window he did not break ?
Schedule showing damages, individually and collectively, exhorbitant, and disproportionate and unjust ; Rantzen at 686 C - G; 692 G - H and 696 A - B.
CHARLES GRAY QC