Ong Kian Peng Julian v Tiong Sze Yin Serene [2020] SGHC 210

Introduction

This is an appeal against the decision of the District Judge (“the DJ”) in Ong Kian Peng Julian v Serene Tiong Sze Yin [2020] SGDC 94 dismissing the appellant’s claim in libel.

Background facts

The main background facts are not disputed. At the material time, the appellant was a consultant general and colorectal surgeon in private practice at Julian Ong Endoscopy & Surgery, and the respondent was a business development manager with Thomson Medical Centre.

Dr Chan Herng Nieng (“Dr Chan”) and the respondent were in an extra-marital relationship from about January 2017 till about 29 May 2018. At the material time, Dr Chan was a Senior Consultant in the Department of Psychiatry at the Singapore General Hospital (“SGH”). Dr Chan and the appellant are close friends.

At the point when Dr Chan and the respondent entered into a relationship, the respondent was still legally married. According to Dr Chan, the respondent had told him that she intended to divorce her then-husband. Dr Chan and the respondent regularly spent time with each other during this time, and their relationship was described by Dr Chan to be “generally smooth-sailing”. Dr Chan averred that despite being in a relationship with the respondent, he had no intention of settling down, and was under the impression that the respondent shared the same understanding. In the Agreed Bundle of Documents (“ABD”), the respondent exhibited various photographs, claiming that she had been invited by Dr Chan for festive celebrations, birthdays and family outings. However, their relationship broke down during a trip they took together to Eastern Europe between 7 April and 25 April 2018.

Between 19 to 23 June 2018, the respondent sent various emails to several of Dr Chan’s colleagues in SGH and in private practice. According to Dr Chan, these included at least six senior doctors at SGH, including the Head of the Psychiatry department. The emails stated that the respondent had “made an official complaint” to the SMC against Dr Chan for his “professional misconduct”, and attached in-text a copy of the 19 June 2018 SMC complaint. The emails contained the offending words, reproduced as follows:

(a) “I found out that he has been colluding with Dr Julian Ong, a surgeon from the private practice to take advantage of other vulnerable woman patients”;

(b) “I suspect Dr Chan uses his reputation as a platform, together with Dr Ong to “source” and “groom” the patients turned victims”; and

(c) “Both doctors exchanged potential patients and colleagues who are deemed to be easily taken advantage to satisfy their immoral desires”.

These emails came to the attention of Dr Chan when some of the recipients forwarded them to him. He then informed the appellant about them.

The respondent filed complaints with the SMC on 13 and 19 June 2018 (the “SMC complaints”). In the SMC complaints, she alleged that she suffered from many side effects after taking medication that Dr Chan had given her, and that she was addicted to the medication. She claimed that her relationship with Dr Chan had become more intimate as a result, and that Dr Chan had taken advantage of her knowing that she was emotionally unstable and under the influence of the medication. The SMC complaints also contained the offending words as reproduced at [8] above. Further, the respondent claimed in the SMC complaints that Dr Chan wrote her an apology letter (presumably the one referred to at [7] above) and offered her a compensation sum of $10,000 to settle the matter, but that she had declined the offer.

The appellant instructed Dentons Rodyk & Davidson LLP to write a letter to the respondent dated 27 June 2018, demanding that she cease publication of defamatory allegations against him. The appellant claimed that despite this letter, the respondent continued to send emails containing such defamatory allegations. This included one email sent to Dr Chan’s colleague, one Dr P, informing Dr P that she was mentioned in the WhatsApp messages between the appellant and Dr Chan.

The appellant commenced proceedings against the respondent in DC Suit No. 1894 of 2018 on 4 July 2018 (the “DC suit”), alleging that the offending words in the emails sent by the respondent were defamatory of the appellant. The DC suit did not concern the SMC complaints. The appellant sought damages for libel to be assessed and an injunction restraining the respondent from publishing or causing to be published the offending words or other words similarly defamatory of the appellant.

According to the appellant, the respondent continued to send emails to Dr Chan’s colleagues containing defamatory allegations even after the commencement of the DC Suit.

In the appellant’s Statement of Claim, it was pleaded that the natural and ordinary meanings of the offending words were that:

(a) the appellant had taken advantage of vulnerable female patients sexually;

(b) the appellant had used his position as a doctor to “source” and “groom” vulnerable female patients to engage in sexual activities with him; and

(c) the appellant had provided Dr Chan with the contact information of female patients and colleagues with the intention that Dr Chan take advantage of those female patients and colleagues sexually.

The respondent did not dispute that these were the natural and ordinary meanings of the offending words. As stated at [2] above, the respondent had pleaded, inter alia, the defence of justification.

The decision below

The respondent submitted no case to answer at the close of the appellant’s case at trial. By doing so, the respondent adduced no further evidence to rebut the appellant’s case. Her Affidavit of Evidence-in-Chief (“AEIC”) was expunged from the record. Following a two-day trial, the DJ found that the respondent had succeeded in her defence of justification.

The DJ found the natural and ordinary meanings of the offending words to be that:

(a) Dr Chan colluded with the [appellant] to take advantage of vulnerable female patients;

(b) The [respondent] suspected that the [appellant] and Dr Chan used their position as doctors to source for patients to have sexual activities with; and

(c) Both doctors exchanged information about patients and colleagues that they could potentially have sexual activities with.

The DJ, following the test as set out in Aaron Anne Joseph and others v Cheong Yip Seng and others [1996] 1 SLR(R) 258 at [51], found that the offending words were defamatory as they tended to lower the appellant’s reputation in the estimation of right-thinking members of society.

The DJ then found that the respondent had succeeded in her defence of justification for the following reasons. First, the appellant had sought to engage in sexual activities with the respondent, who was Dr Chan’s de facto patient as he had supplied her with Xanax. The appellant had admitted during cross-examination that he had suggested having a foursome with Dr Chan involving the respondent. As such, the appellant and Dr Chan had sought to collude to have sexual activities with the respondent. Whether or not the appellant eventually engaged in sexual activities with the respondent did not “detract from the substance of the sting” of the offending words.

Second, the WhatsApp messages showed that the appellant had forwarded the contact details of his patient, one ‘K’, to Dr Chan, for the latter to attempt to engage in sexual activities with her. The DJ relied mainly on the WhatsApp messages at ABD3 and ABD43. Third, the DJ referred to other screenshots of WhatsApp messages, and concluded that the appellant and Dr Chan looked for women to engage in sexual activities with.

According to the DJ, there was “undisputed evidence” that the appellant and Dr Chan had colluded to take advantage of the respondent and at least one other female patient K. The DJ held that “taken as a whole”, the WhatsApp messages involving the respondent, K, and other women, reinforced her finding that the appellant and Dr Chan had colluded to take advantage of the respondent and at least one other female patient K, and had passed the contact details of these women to each other. The offending words were therefore substantially true.

The DJ also found that “any doctor who seeks to have sex with his patient or pass a patient to another doctor to have sex with that patient, is interacting with a vulnerable person vis-à-vis that doctor” (GD at [21]). Finally, the appellant and Dr Chan exchanged information through their WhatsApp messages of colleagues whom they could potentially have sexual activities with. These colleagues were a nurse whom the appellant claimed he engaged in sexual activities with, one Dr P and one G who were allegedly Dr Chan’s colleagues, and a psychologist whom the two men discussed potentially having sexual activities with.

The issues arising in the appeal

(a) the DJ had wrongly adjudicated on the natural and ordinary meaning of the offending words;

(b) the DJ had wrongly found that the respondent was Dr Chan’s patient and that the appellant had colluded with Dr Chan to take advantage of her;

(c) the DJ had wrongly found that the appellant had provided the contact details of his patient K to Dr Chan for Dr Chan to attempt to have sexual activities with her;

(d) the DJ had therefore wrongly found that there was undisputed evidence that the appellant and Dr Chan had colluded to try to take advantage of two patients, being the respondent and K;

(e) the DJ had wrongly found that the appellant and Dr Chan exchanged information about colleagues they could potentially have sexual activities with; and

(f) the DJ had thereby failed to recognise that the respondent had not met the burden of proof to succeed in her defence of justification.

My decision

Natural and ordinary meanings of the offending words

The appellant submitted that the DJ had erred by unilaterally determining the natural and ordinary meanings of the offending words, instead of adopting the version as set out at [14] above which was pleaded by the appellant and not disputed by the respondent.

In response, the respondent submitted that the differences between the meanings of the offending words as pleaded by the appellant and what was considered by the DJ were merely a matter of semantics. Further, the court was not constrained to adopt the meanings attributed by the parties to the offending words. The appellant also did not contend that the meanings adopted by the DJ were incorrect, and as such, the appellate court should be slow to overturn the DJ’s findings.

The law in this area is well-settled. The court is to decide what meaning the words complained of would have conveyed to an ordinary, reasonable person using his general knowledge and common sense (Microsoft Corp v SM Summit Holdings Ltd and another and other appeals [1999] 3 SLR(R) 465 at [53]).

To succeed in the defence of justification, the sting of the charge has to be proven. As stated by the Court of Appeal in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 at [44]:

While the court need not “engage in a meticulous examination of every word in question or every detail of fact” (Oei Hong Leong v Ban Song Long David and others [2005] 1 SLR(R) 277 at [94]), the defence of justification would not be made out if a defendant’s attempt to show that the defamatory statements are true rested “largely on unsubstantiated assertions of fact, tenuous circumstantial evidence and inferences” (see Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86 at [37]). The justification must “meet the sting of the charge” (Lim Eng Hock Peter v Lin Jian Wei and another [2009] 2 SLR(R) 1004 at [127]).

Findings in relation to the respondent

In any case, taking the respondent’s case at its highest, the appellant’s WhatsApp message was a suggestion about a possible foursome which might involve the respondent. This standalone message was still at least one step removed from a plan between the appellant and Dr Chan which could amount to collusion to take advantage of the respondent. The idea may have been conceived by the appellant but no further deliberation or preparatory step was taken beyond an isolated message where the appellant had bounced the idea off Dr Chan. Dr Chan may have said that he thought the respondent would be “ok with it” but no further discussions ensued and nothing else developed from this.

Findings in relation to K

Messages relating to ‘colleagues’

Conclusion