Lee Kuan Yew v Chee Soon Juan

[1] This was an appeal by Dr Chee Soon Juan to judge-in-chambers from the decision of Senior Assistant Registrar Mr Toh Han Li (‘the SAR’) granting interlocutory judgment with damages (including aggravated damages) to be assessed in a defamation action brought by the respondent, Mr Lee Kuan Yew. Mr Lee is, and was at all material times, the Senior Minister in the Prime Minister’s Office, a Cabinet Minister of the Government of Singapore and the former Prime Minister of Singapore. On 25 October 2001, Mr Lee, as a candidate of the People’s Action Party (‘PAP’), was returned unopposed as a Member of Parliament for Tanjong Pagar Group Representation Constituency (‘GRC’) in the 2001 General Elections. Dr Chee is, and was at all material times, the Secretary-General of the Singapore Democratic Party (‘SDP’). Dr Chee was a candidate, along with four others, for Jurong GRC in the 2001 General Elections.

[2] On 28 October 2001, in the course of campaigning for the 2001 General Elections, Dr Chee reportedly spoke and published certain words in public and in the presence of, inter alia, various members of the print and broadcast media at an election rally at Nee Soon Central (‘the Words’), which Mr Lee alleged to be defamatory of him.

[3] On 19 November 2001, the present suit was commenced by Mr Lee against Dr Chee. On 8 December 2001, Mr Lee filed an amended Statement of Claim seeking to enforce a contract of compromise arising from the publication of an apology by Dr Chee or alternatively, claiming against him for defamation. In Suit No 1460 of 2001, Mr Goh Chok Tong, the Prime Minister of the Republic of Singapore, commenced a similar suit against Dr Chee for allegedly defamatory words spoken by him at Hong Kah West hawker centre and at the election rally at Nee Soon on 28 October 2001.

[6] The Words and/or their gist were prominently republished by the print and broadcast media.

[11] A draft apology was also attached to the letter.

[13] Before the SAR, counsel for Mr Lee, Mr Davinder Singh SC, submitted that as a result of the publication of Dr Chee’s second apology, there was a valid and binding contract of compromise between the parties, which Mr Lee was entitled to enforce, and to which Dr Chee had no arguable defence. In any event, Mr Lee was entitled to interlocutory judgment because Dr Chee had no arguable defence to his alternative claim for defamation.

[14] In his Defence and Counterclaim filed on 22 December 2001, Dr Chee denied speaking the Words, denied that they referred to Mr Lee, denied that the Words even if spoken were defamatory, denied that he was liable for the republication of the words and pleaded the defences of justification, qualified privilege and fair comment (emphasis added). Dr Chee also pleaded that in any event, any apology or compromise achieved by Mr Lee was null and void, in that it was the product of duress and intimidation. He went so far as to say that the apology tendered and the resulting compromise were not sincere on his part (see para 15 of Dr Chee’s affidavit filed on 26 July 2002).

[15] It would appear from Dr Chee’s two affidavits as well as his submissions that the mainstay of his defence was that the second apology, and any contract of compromise that had arisen as a result of this apology, were all null and void due to duress and intimidation. Dr Chee’s affidavits and submissions did not, however, touch on the other defences that he had earlier pleaded.

[16] The SAR determined that there was a valid contract of compromise between the parties as a result of Dr Chee’s agreement to apologise in terms of the draft apology enclosed in the letter of demand, following the principles in Shunmugam Jayakumar & Anor v Jeyaretnam JB & Anor [1997] 2 SLR 172. He further held that upon Dr Chee’s failure to make an offer of damages as required under the contract of compromise, Mr Lee was entitled to enforce the contract of compromise by asking for interlocutory judgment with damages (including aggravated damages) to be assessed.

[17] In dismissing Dr Chee’s defence of duress, the SAR reasoned that:

[18] The SAR also dismissed Dr Chee’s defence of intimidation on the ground that it was not a recognised vitiating factor but rather a cause of action in its own right. He held that in any case, a threat to enforce one’s legal rights cannot amount to intimidation.

[19] In the result, the SAR entered judgment for Mr Lee holding inter alia that the Words were defamatory either in their natural and ordinary meaning or by way of innuendo; that Dr Chee was liable for the republication of the words because he intended and in fact demanded that the journalists republish the words; and that although justification, qualified privilege and fair comment were pleaded, Dr Chee offered very little material in support of the defences or made any submissions on them.

[20] The SAR also found that the fact that Dr Chee had brought a Counterclaim against Mr Lee for defamation was no reason to grant Dr Chee a stay of execution, much less leave to defend because the facts on which the Counterclaim was founded were separate and distinct from those which gave rise to the present action. On appeal, Dr Chee did not dwell on this aspect of the SAR’s judgment.

[21] During the appeal hearing, Dr Chee endeavoured to impugn the SAR’s findings of fact and of law on the ground of bias. It was clear, however, that an underlying grouse was that Dr Chee perceived himself to be at a disadvantage in these proceedings because he had not been granted leave to hire Queen’s Counsel. Whilst it is true that Dr Chee appeared in person before the SAR and in this appeal, the records confirmed the fact that he had had ample time to seek legal advice and refine his presentation both before the SAR, as well as before me.

[25] The courts are bound to scrutinise with care any attempt by a disputant to renege a contract of compromise on the ground that it is unenforceable for some reason. As the editors of Chitty on Contracts (Vol 1, 28th Ed) state at para 17-013, ‘[t]here is a manifestly obvious public policy in favour of encouragement and enforcement of compromises of disputes which the parties themselves have agreed to.’ The editors further comment at para 23-013 that:

[26] On appeal, the thrust of Dr Chee’s defence was once again duress. I will deal with the issue of intimidation later.

[28] There was no merit to this argument. Without sufficient particulars, the court would be unable to assess if the defendant has a real or bona fide defence. The law requires a defence of duress to be specifically and carefully pleaded, regardless of whether the plaintiff makes a demand for particulars. Order 18 r 8 of the Rules of Court 1997 states expressly states that:

The commentary on this provision is set out in paragraph 18/8/12 of Supreme Court Practice 1999 as follows:

[29] Further, it was completely incorrect to say that the SAR had taken the point on Mr Lee’s behalf without any prompting from counsel. Mr Davinder Singh had expressly made the pleading point an issue in the written submissions before the SAR.

[30] Dr Chee’s case before the SAR was that the second apology was prompted by reports from his party colleagues that they had learned from ‘mass media reports’ that ‘Mr Lee Kuan Yew had said something to the effect that what action he took against the other SDP candidates he had identified depended on how [Dr Chee] responded to his demands’, as well as an article in the Straits Times entitled ‘5 SDP members may face legal action too’ on 1 November 2001 wherein Mr Lee was quoted as saying that five other SDP candidates who repeated Dr Chee’s allegations ‘may yet receive letters demanding apologies and later on maybe writs of summons’. Insofar as the former was concerned, the SAR found that Dr Chee had given insufficient particulars in support of his defence. Insofar as the alleged threat in the newspaper article was concerned, the SAR found that it could not have been the causa causans of the second apology because Dr Chee had made his apology on the night of 31 October, before the publication of the article.

[31] Dr Chee accused the SAR of intentionally misrepresenting his position because of bias. On appeal, Dr Chee strenuously sought to explain that he had referred to the newspaper article on 1 November 2001 not for the purpose of demonstrating the time sequence, but for the purpose of referring to the information that was contained therein. He argued that causation was not an issue in this case because Mr Lee must have made his threat on 31 October in order for the Straits Times to report it the next day.

[32] I am of the opinion that Dr Chee has failed to demonstrate before me as well as before the SAR that he had a real or bona fide defence. The manner in which Dr Chee has conducted the case before the SAR and on appeal revealed that his defence was contrived for the sake of creating some sort of a triable issue. In his Defence and Counterclaim filed in December 2001, Dr Chee’s defences of duress and intimidation were but bare allegations. It was only some seven months later, in his first affidavit of 26 July 2002 that he gave some inkling of the specifics of his defence. By the time of this appeal, his case on duress had undergone at least four permutations.

It was clear from these passages, therefore, that Dr Chee’s position was that his apology of 31 October was prompted by the newspaper report of 1 November. This was the basis of the SAR’s finding that Dr Chee had failed to establish causation. 34 When confronted by this material inconsistency at the hearing before the SAR, Dr Chee changed tack and attributed the threat to Mr Goh by referring to another Straits Times article also dated 1 November 2001 entitled ‘SDP man admits ‘no basis’ for loan allegations’ wherein Mr Goh was reported as saying on 30 October that ‘apart from Dr Chee, several other candidates should be taking stock of the allegations they had made’. On appeal, Dr Chee, in an attempt that smacked of ex post facto reasoning, tried to rationalise this aspect of his case by saying that he had meant that Mr Goh had made a threat in addition to Mr Lee (Emphasis added).

[35] During his submissions before me, Dr Chee sought to overcome the problem in chronology by maintaining that Mr Lee was the perpetrator of the alleged threat but advancing the new argument that Mr Lee had made the threat on the same day as his apology instead of the day after. As alluded to above, his case was that Mr Lee must have made the threat on 31 October for it to be reported the next day.

[36] Surprisingly, Dr Chee had yet one more theory to offer in his reply to Mr Davinder Singh, where he equated the threat with the letter of demand itself.

[37] Dr Chee’s story of duress appears to me to be an afterthought given the fact that he did not raise the argument that the second apology was induced by duress until he filed his Defence and Counterclaim on 22 December 2001. Dr Chee complained that it was ‘grossly unfair and improper’ for the SAR to use this fact against him because the proper place for the defence to be raised was in the pleadings themselves. He argued that the SAR’s remarks amounted to ‘improper and non-judicial remarks, again highlighting the bias of the Courts.’

[40] In any case, it should be remembered presently that the second apology was issued by Dr Chee upon the request and persuasion of his party colleagues and not by any improper pressure brought to bear on him by Mr Lee and/or Mr Goh. In his submissions before me, Dr Chee emphasised repeatedly that he apologised only after his party colleagues exerted pressure upon him. Insofar as his party colleagues were of the impression that an apology from Dr Chee would ‘lessen the consequences’ for the others, that impression was entirely misconceived. All the media reports adduced before me show that both Mr Goh and Mr Lee were of the opinion that each of the SDP candidates should take individual responsibility for their behaviour. Mr Goh was quoted in ‘SDP man admits ‘no basis’ for loan allegations’ as saying that each of the SDP candidates should take stock of the allegations they had made and each consider some act to mitigate the harm they had done. No mention was made of Dr Chee apologising on their behalf. The same applies to Mr Lee who was quoted in entitled ‘5 SDP members may face legal action too’ as saying that even if Dr Chee apologised, that would not solve the matter completely. As the SAR put it, the second apology was ‘self-induced, rather than threat-induced’ in that it was an attempt on the part of Dr Chee to appease his party colleagues and stay in the election race.

[41] Even if I were to assume in Dr Chee’s favour that Mr Lee and/or Mr Goh had indeed threatened to commence legal actions against Dr Chee’s party colleagues, I find, as did the SAR, that such a threat did not amount in law to duress. On appeal, Dr Chee attacked the SAR’s finding as ‘disingenuous and question begging’ and argued that the SAR was ‘inappropriately biased’ to ‘blankly assert that the Plaintiff in issuing legal threats was merely threatening to enforce his legal rights. The Plaintiff had no right to sue the other candidates but then the Court glosse[d] over this undeniable fact as if it did not exist.’

[42] It was difficult to determine the basis for Dr Chee’s assertion that Mr Lee and/or Mr Goh had no right to commence legal proceedings against those who had allegedly defamed them. It is clear that a threat to enforce one’s legal rights does not amount to duress, at least where the threat is made bona fide, and is not manifestly frivolous or vexatious. In Chitty on Contracts (Vol 1, 28th Ed) at para 7-006 the editors state that in order to establish the defence of duress, the defendant must not only demonstrate that the pressure or threats were made but that they were illegitimate:

Pressure and threats. Once it is accepted that the basis of duress does not depend upon the absence of consent, but on the combination of pressure and absence of practical choice, it follows that it is the nature of the pressure or the threats which becomes all-important. Clearly, not all pressure is illegitimate, nor even are all threats illegitimate. In ordinary commercial activity, pressure and even threats are both commonplace and often perfectly proper. Indeed, in one sense, all contracts are made under pressure: every offeror “threatens” that unless the offeree accepts the terms offered, he will not get the benefit of whatever goods or services are on offer. Nor can it even be said that the force or weight of the pressure or the threats is the decisive factor, “for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act.” It therefore becomes essential to distinguish between legitimate and illegitimate forms of pressure.

The above principles were endorsed by Selvam J in Shunmugam Jayakumar & Anor v Jeyaretnam JB & Anor [1997] 2 SLR 172 at 190.

[43] On appeal, Dr Chee expressed difficulty in tackling this point because it required some knowledge of the law. I therefore granted him permission to adduce further submissions on this point after the conclusion of the hearing. In further submissions filed on 26 February 2003, Dr Chee submitted that ‘[a] threat of legal proceedings (including a threat to commence proceedings against third parties) which is mala fides amounts to duress or undue influence.’ The alleged threat in the present case, Dr Chee asserted, was ‘not made bona fide, in that it was made for the purpose of intimidating and silencing political opposition to the plaintiff.’ This was the first time that such an allegation had ever been raised and Dr Chee failed to give any particulars in support of it. Just as it is with the case with duress, bad faith must be properly pleaded:

[44] Dr Chee failed to raise the issue of mala fides in his pleadings, or even subsequently in his affidavits or his oral arguments. It was only after I granted him the opportunity to adduce further submissions after the conclusion of the hearing that Dr Chee saw fit to introduce the point. This was over a year after Mr Lee first initiated the action, and only after the matter had already gone on appeal. In the circumstances, I found that the allegation of mala fides was but an afterthought, contrived for the purpose of creating a colourable defence and therefore not worthy of serious consideration.

[45] In his response to Dr Chee’s submissions of 26 February, Mr Davinder Singh argued that the issue of mala fides was in any case irrelevant because a threat to enforce one’s legal rights by instituting legal proceedings could not amount to duress unless it was used as an instrument to extort money from others. Although recent authority seems to indicate that the state of mind of the parties is a relevant consideration in determining whether duress exists (see eg CTN Cash and Carry Ltd v Gallaher [1994] 4 All ER 714; Huyton SA v Peter Cremer GmbH & Co [1999] 1 Lloyd’s Rep 620; DSND Subsea Limited v Petroleum Geo Services ASA [2000] Build LR 530 and Sharon Global Solutions Pte Ltd v LG International (Singapore) Pte Ltd [2001] 3 SLR 368), I find that on the factual matrix of the present case, Dr Chee’s belated submission was wholly tendentious and appeared to have been introduced in vain to overcome the deficiencies in his purported defence.

[46] It would not be out of place if I mentioned at this stage that it is indeed ironical that Dr Chee, who claims that the letter of apology was not genuine and was not given in a sincere vein, now expects the court to hold that what he presently says is true and genuine. Another irony is that having by his own admission extended the said apology to gain a perceived or misperceived advantage to advance his electoral ambitions, Dr Chee now wants the courts to set the clock back and validate his attempts to renege on the compromise agreement so reached. In my evaluation, to say the least, Dr Chee’s current endeavour is seemingly an exercise in expediency and his purported defence conclusively unmeritorious.

[47] On appeal, the SAR’s findings on intimidation were not the subject of separate scrutiny by Dr Chee. Nevertheless, I deal with it here for the sake of completeness.

[48] As the SAR correctly found, intimidation is not a recognised vitiating factor but rather a cause of action as a tort in its own right. The factors necessary to establish the tort of intimidation were summarised by Lord Denning MR in Morgan v Fry [1968] 2 QB 710, at 724:

[49] A ‘threat’ to do what one has a legal right to do cannot amount to intimidation. This approach was confirmed by the House of Lords in Rookes v Barnard [1964] AC 1129 where Lord Reid held, at page 1168:

So long as the defendant only threatens to do what he has a legal right to do he is on safe ground. At least if there is no conspiracy he would not be liable to anyone for doing the act, whatever his motive might be, and it would be absurd to make him liable for threatening to do it but not for doing it.

[51] Dr Chee’s submission was entirely misconceived. The courts have summarily determined the question of defamation by striking out defences which disclosed no real defence and entered interlocutory judgment for damages to be assessed. In Bank of China v Asiaweek [1991] 2 MLJ 505, the defendant had pleaded, inter alia, a bare denial that the words complained were defamatory of the plaintiff or were understood to bear the meanings as alleged by the plaintiff or any other meaning defamatory of the plaintiff. Thean J examined that defence in the light of the pleadings and the affidavits filed by the parties and concluded that it was ‘manifestly unsustainable, frivolous and a sham’. He accordingly struck out the defence and gave the plaintiff leave to enter interlocutory judgment.

[52] Mr Davinder Singh submitted that the second apology clinched the case in Mr Lee’s favour because they contained material admissions by Dr Chee that he had defamed Mr Lee. In my determination, the Words were indisputably defamatory of Mr Lee independently of the impugned second apology and that Dr Chee had failed to establish that he had a real or bona fide defence.

[53] At the risk of repetition, Dr Chee in his Defence denied speaking the Words, denied that they referred to Mr Lee, denied that the words even if spoken were defamatory, denied that he was liable for the republication of the words and pleaded the defences of justification, qualified privilege and fair comment.

[54] On appeal, Dr Chee declined to respond to my repeated invitations to confirm whether he maintained the position that he had not uttered either the Words for fear of compromising his defence. The Words were therefore played before me and I found that there was no doubt that Dr Chee had indeed pronounced the Words and that they referred to Mr Lee. Despite this replay, Dr Chee still would not commit himself to an answer. At the close of the appeal, however, I granted Dr Chee permission to adduce written submissions on whether his position remained that he did not speak the Words. In further submissions filed on 26 February 2003, Dr Chee finally admitted that he did utter the Words. His hesitation in answering an uncomplicated question until 26 February 2003 clearly evinced to the court that he was improvising his defences as he went along.

[55] Insofar as the substantive merits of the alternative claim in defamation were concerned, I can do no better than to express my complete agreement with the following findings of the SAR in paras 50 to 61 of his judgment:

Order accordingly.