Soh Rui Yong v Singapore Athletic Association [2020] SGHCR 7

This is an application brought by the Singapore Athletic Association (“the Defendant”), pursuant to O 18 r O 18 r 19(1)(b), (c) and (d) of the Rules of Court (Cap 322, R 5, Rev Ed 2014) (“Rules of Court”), to strike out Mr Soh Rui Yong’s (“the Plaintiff”) plea of malice.

Background

The Plaintiff is a national athlete who has represented Singapore at several international sporting events. He is the current national record holder and two-time gold medallist for the 42.195km Men’s Marathon events at the 2015 and 2017 South East Asian Games (“SEA Games”). The Defendant is a registered society under the Societies Act (Cap 311, Rev Ed 2014), and is a National Sports Association in Singapore.

On 2 August 2019, the Defendant issued a public statement (“the August 2019 Statement”) endorsing the Singapore National Olympic Council’s decision to reject the Plaintiff’s nomination for the SEA Games that were to be held in the Philippines in December 2019 (“the 2019 SEA Games”). The August 2019 Statement included certain phrases which the Plaintiff has alleged in the present suit to be defamatory, and which the parties have referred to as “the Words”. The Words were reported in the online platform of The Straits Times on 3 August 2019, as follows (with the Words emphasised in italics):

The Plaintiff alleged that the Words were false and defamatory of him, as they suggested that the Defendant had, upon conducting proper investigations and in accordance with due process, found that the Plaintiff had acted in breach of the Athlete’s Code of Conduct. The Words also suggested that the Plaintiff had committed various “transgressions” which required rehabilitation and counselling from the Defendant. The Plaintiff therefore filed a Writ of Summons and the accompanying Statement of Claim on 11 September 2019, seeking – amongst other things – a declaration that the Words were false and defamatory of him.

The Defence was originally filed on 3 October 2019. The Defendant subsequently filed an amended Defence on 13 July 2020, amending and elaborating on its defence of “fair comment” as well as adding a new defence of “qualified privilege”. For present purposes, the relevant part of the amended Defence is the Defendant’s pleading that:

(a) the Words constituted “fair comment on a matter of public interest, namely the explanation as to why a top track athlete in the Plaintiff was not selected to represent Singapore on a regional stage”; and

(b) alternatively, if the Words were defamatory of the Plaintiff (which the Defendant denies), the Words were published “on an occasion of qualified privilege”.

The Reply was originally filed on 28 October 2019. The Plaintiff subsequently filed an amended Reply on 27 July 2020 (“the Amended Reply”), pleading that the Defendant was not entitled to rely on the defences of “fair comment” or “qualified privilege” because the Defendant “had no genuine belief in the truth of the Words and had acted with malice in publishing and/or causing the Words to be published”. In particular, the Plaintiff referred to:

(a) a post published on the Defendant’s Facebook page on 27 February 2020, captioned “The Women World Marathon Record is faster than our Singapore Men’s National Record by 9 minutes” (“the Facebook Post”); and

(b) the Defendant’s alleged breach of confidentiality by providing the Plaintiff’s confidential documents and information to one Mr Malik Aljunied, an executive director of the Defendant, for the purposes of another suit between the Plaintiff and Mr Malik in HC/S 851/2019 (“S 851”) (“the Alleged Breach of Confidence”).

Paragraph 25 of the Amended Reply and its accompanying sub-paragraphs are set out in full as follows:

The Application

The Defendant took out the present application, seeking to strike out paragraph 25 of the Amended Reply and its accompanying sub-paragraphs on the basis that these:

I heard the application on 16 September 2020. On 21 September 2020, I requested Defendant’s counsel, Mr Mahmood Gaznavi, to provide written clarifications on specific issues arising from his submissions. I permitted Plaintiff’s counsel, Mr Darius Lee, a written response to those clarifications. These were respectively filed on 24 and 30 September 2020.

Parties’ Arguments

Mr Gaznavi argued that the particulars pleaded in paragraph 25 of the Amended Reply were insufficient to support the Plaintiff’s plea of malice.

In relation to the Facebook Post, Mr Gaznavi contended that:

(a) First, the Facebook Post was published about six months after the August 2019 Statement. It therefore cannot be the basis for any malice allegedly present prior to or at the time of the publication of the August 2019 Statement. The facts pleaded to support the Plaintiff’s contention of malice demonstrate neither that the August 2019 Statement was “actuated” by an improper or ulterior motive (citing Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 331 (“Lim Eng Hock Peter”) at [38]), nor that the Defendant did not believe the August 2019 Statement to be true or was reckless as to the truth of the statement (citing Lee Kuan Yew v Davies Derek Gwyn and others [1989] 2 SLR(R) 544 at [118]–[119]).

(b) Second, further or alternatively, given that an amendment is retrospective to the original date that a pleading is filed (citing Saga Foodstuffs Manufacturing (Pte) Ltd v Best Food Pte Ltd [1994] 1 SLR(R) 505 (“Saga Foodstuffs”)), it is “impermissible” for the Plaintiff to plead the Facebook Post given that the Facebook Post occurred after the original Reply.

(c) Third, the individuals within the Defendant who were alleged to have malicious intent have not been particularised (citing Ezion Holdings Ltd v Credit Suisse AG [2018] 3 SLR 356 (“Ezion”) at [27]–[28] and [50]).

(d) Fourth, the Facebook Post cannot be the basis of malice because the post is itself factually correct – ie, the Women’s World Marathon Record is, as a matter of fact, nine minutes faster than the Singapore Men’s National Record.

In relation to the Alleged Breach of Confidence, Mr Gaznavi’s contentions were:

(a) First, the Alleged Breach of Confidence took place only on or after 17 August 2019. As such, any alleged malice concerning the Alleged Breach of Confidence must have post-dated the August 2019 Statement. The Alleged Breach of Confidence therefore cannot provide any basis for pleading malice in relation to the August 2019 Statement.

(b) Second, further or alternatively, the Alleged Breach of Confidence is the subject matter of HC/OS 432/2020 (“OS 432”). The issues in OS 432 have been canvassed before a High Court Judge and adjourned to a date after judgment is rendered in S 851. In raising issues in the present suit concerning the Alleged Breach of Confidence, the Plaintiff is effectively asking the High Court to determine whether the Alleged Breach of Confidence had taken place. This is an abuse of the court process and is “effectively asking for a second bite at the cherry in respect of [the Plaintiff’s] case in OS 432”. This may “result in an inconsistent decision being rendered” by the High Court.

Mr Lee counterargued as follows:

(a) First, paragraph 25 of the Amended Reply is legally sustainable. O 18 r 9 of the Rules of Court permits a party to plead any matter which has arisen at any time, whether before or since the issue of the writ; this was also the approach taken in DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd and others and another suit [2018] 5 SLR 1 (“DyStar”)). In this regard, paragraph 25 of the Amended Reply does not plead a new cause of action; instead, it simply pleads facts in support of an existing cause of action. Furthermore, post-publication conduct, including conduct after the commencement of proceedings, can be considered as evidence of malice in the context of a defamation suit (citing DHKW Marketing and another v Nature’s Farm Pte Ltd [1998] 3 SLR(R) 774 (“DHKW Marketing”)).

(b) Second, there is no issue of abuse of process. At present, there is no final and conclusive judgment on the merits in OS 432. While there is an overlap between OS 432 and the present suit, the issue in OS 432 concerns restraining the use of the confidential documents, whereas paragraph 25 of the Amended Reply “is wider and concerns malice arising out of, inter alia, the use of the Confidential Documents” (emphasis in original).

The Law

Striking out

In determining an application under O 18 r 19(1) of the Rules of Court, the Court does not embark on a minute and protracted examination of the documents and facts (see, eg, Likpin International Ltd v Swiber Holdings Ltd and another [2015] 5 SLR 962 at [50]). The Court will exercise the power to strike out a pleading only in plain and obvious cases.

The present application is premised on O 18 r 19(1)(b), (c) and (d) of the Rules of Court (see [8] above). As a prefatory observation, in The “Bunga Melati 5” [2012] 4 SLR 546 at [30] (“The Bunga Melati 5”), three out of four limbs of O 18 r 19(1) of the Rules of Court were listed as possible grounds for striking out, and the party’s submissions did not make it clear exactly which limb in O 18 r 19(1) of the Rules of Court it was relying on. A similar criticism may be levelled in the present application, and indeed this partly necessitated seeking the further written clarifications mentioned in [9] above. As exhorted in The Bunga Melati 5, it is good practice for an applicant seeking a striking out order to “precisely correlate the arguments it advances to the exact limb under O 18 r 19(1)” (The Bunga Melati 5 at [31] (emphasis in original)).

The main thrust of Mr Gaznavi’s arguments appeared to be based on alleged factual or legal unsustainability (see the arguments at [11(a)], [11(b)], [11(d)] and [12(a)] above). It may thus be inferred that he was relying largely upon O 18 r 19(1)(b) of the Rules of Court as elaborated upon in The Bunga Melati 5, although he did not expressly cite the case. In The Bunga Melati 5, the Court explained the distinction between a legally and factually unsustainable action, as follows:

(a) A legally unsustainable action is one in which it is “clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks” (The Bunga Melati 5 at [39(a)]).

(b) In contrast, a factually unsustainable action is one in which it is “possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance”; for instance, that it is “clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based” (The Bunga Melati 5 at [39(b)]).

Mr Gaznavi also appeared to allude to paragraph 25 of the Amended Reply being prejudicial or embarrassing under O 18 r 19(1)(c) of the Rules of Court (by virtue of the argument at [11(c)] above) and an abuse of process under O 18 r 19(1)(d) of the Rules of Court (by virtue of the argument at [12(b)] above).

Malice in defamation proceedings

In defamation proceedings, a defamer’s malice may be relied upon to defeat the defences of qualified privilege and fair comment. There is a distinction between the types of malice that will defeat these defences (Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 (“Basil Anthony Herman”) at [60]). To briefly elaborate:

(a) The defence of qualified privilege is grounded on the law’s recognition that there are circumstances where a party has a duty or interest to pass on information to another party who has a duty or interest in receiving it (Basil Anthony Herman at [61]). In other words, motive (rather than honesty of belief) is the “essential indicator” of malice that defeats a defence of qualified privilege (Basil Anthony Herman at [60]). Such malice may be proven in two ways, ie, (i) the defendant’s knowledge of falsity, recklessness, or lack of belief in the defamatory statement; and (ii) where the defendant has a genuine or honest belief in the truth of the defamatory statement, but his dominant motive is to injure the defendant or some other improper motive (Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 (“Chan Cheng Wah Bernard”) at [90], citing Lim Eng Hock Peter at [38]).

(b) In contrast, the defence of fair comment is not based on a notion of performing a duty or protecting an interest. It is, instead, meant to protect and promote the freedom of comment on matters of public interest, irrespective of particular motives for such comment (Basil Anthony Herman at [61]). As such, honesty of belief (rather than motive) is the essential indicator of malice that defeats a defence of fair comment. It follows that the defence of fair comment is not available if the defamer did not honestly believe in the truth of the defamatory comment (Basil Anthony Herman at [60]). The fact that the defamer was acting with ulterior purposes is by itself immaterial for the purposes of the defence of fair comment, although it can – depending on the facts – give rise to an inference that the defamer did not honestly believe in the truth of the comment he or she made (Basil Anthony Herman at [60]).

To succeed in a plea of malice to defeat the defences of qualified privilege or fair comment, the Plaintiff must show that the defamatory act was actuated by the Defendant’s malice (see, eg, Chan Cheng Wah Bernard at [88] (defence of qualified privilege) and Nirumalan K Pillay and others v A Balakrishnan and others [1997] 1 SLR(R) 953 at [12] (defence of fair comment)).

A party alleging malice must provide particulars of the facts on which it relies to support its claim (see O 12 r 12(1)(b) of the Rules of Court), and give particulars of the facts and matters from which the malice is to be inferred (see O 78 r 3(3) of the Rules of Court). These constitute “stringent requirements” to raise a plea of malice, because such a plea is “a very serious allegation of intentional impropriety or bad faith” (Ezion at [26], citing Gatley on Libel and Slander (9th Ed, 1997) at paragraph 28.6). It follows that mere assertion is insufficient when pleading particulars of malice (Ezion at [27], citing Claire Henderson v The London Borough of Hackney and The Learning Trust [2010] EWHC 1651 (QB) at [34]). A party alleging malice “must be in possession of facts and matters which support malice and not concoct a case by introducing irrelevant facts which embarrass the defendant” (Nirumalan K Pillay v A Balakrishnan [1996] 2 SLR(R) 650 at [9]–[10]).

Pleading facts occurring after the commencement of the action

One of the major issues on which Mr Gaznavi and Mr Lee crossed swords was whether the Plaintiff may plead particulars (in paragraph 25 of the Amended Reply) which occurred after the commencement of the action. However, they did not appear to dispute the applicable principles, which are as follows:

(a) First, a cause of action must be established as at the date when proceedings are instituted. A new cause of action may not be introduced if it arises after the date of the writ (The “Jarguh Sawit” [1997] 3 SLR(R) 829 (“The Jarguh Sawit”) at [58], referring to Saga Foodstuffs). An amendment to the pleadings is retrospective to the original date that the pleading was filed (Saga Foodstuffs at [9]).

(b) Second, the above does not preclude the pleading of matters (which are not causes of action) that post-date the pleadings in question. As observed by the Singapore International Commercial Court in DyStar at [137], the principle in The Jarguh Sawit does not mean that facts occurring after the issue of the writ cannot be relied on in support of a cause of action existing at the date of the writ. The Court further pointed out that O 18 r 9(1) of the Rules of Court allows a party to plead “any matter which has arisen at any time, whether before or since the issue of the writ”. On the facts of DyStar, the court found that the plaintiff had successfully made out its allegations of pre-writ minority oppression; in the circumstances, the Court held that post-writ conduct could be relied on as evidence of oppressive conduct continuing beyond the date of the writ, in determining whether (and, if so, what) relief the Court should order. For completeness, the Court in DyStar did not have to deal with a scenario where none of the allegations of pre-writ oppressive conduct were made out (see “Civil Procedure”, (2018) 19 Singapore Academy of Law Annual Review of Singapore Cases 2018 at paragraph 8.7).

Decision

On the face of paragraph 25 of the Amended Reply, the Plaintiff is contending that there was pre-existing malice on the part of the Defendant which actuated the August 2019 Statement – “the Defendant had no genuine belief in the truth of the Words and had acted with malice in publishing and/or causing the Words to be published” (emphasis added. If the Plaintiff can substantiate and establish this plea, he will presumably be able to defeat the defences of fair comment and qualified privilege. While Mr Gaznavi attempted to distinguish DyStar on the basis that post-writ conduct was taken into consideration in that case because there was pre-writ oppressive conduct, the point remains that as a matter of pleading, paragraph 25 of the Amended Reply purports – on its face, at least – to plead pre-existing malice. The situation would have been different had the Plaintiff pleaded, for example, that “the Defendant had acted with malice after the Words were published”.

At this juncture, I do acknowledge that the particulars pleaded in support of paragraph 25 of the Amended Reply entirely post-date the writ. However, as a matter of pleading, such particulars may be pleaded if they are meant to support an allegation of pre-existing malice. Indeed, in the specific context of defamation proceedings, courts have taken post-publication conduct into account as evidence of pre-existing malice. For instance, in DHKW Marketing, the court held that “[t]he defendants’ conduct after litigation had been commenced was further evidence of malice” (DHKW Marketing at [37]), while in Ezion, the Court noted that “post-publication conduct may be relevant to the question of malice in certain situations” (Ezion at [48]). Both DHKW Marketing and Ezion were also referred to in Gao Shuchao v Tan Kok Quan an others [2018] SGHC 115 at [53].

The real difficulty with paragraph 25 of the Amended Reply is not the mere fact that the particulars post-date the publication of the August 2019 Statement, but that the particulars do not sustain the Plaintiff’s plea of malice.

In this regard, I find that the Plaintiff’s plea of malice is factually unsustainable. The supporting particulars entirely post-date the August 2019 Statement. Of the two sets of post-publication conduct pleaded by the Plaintiff, the first (ie the Facebook Post) took place more than six months after the August 2019 Statement, and there are no particulars to show how the Facebook Post demonstrated malice at the time of the August 2019 Statement. The second set of post-publication conduct (ie the Alleged Breach of Confidence) was closer in time to the August 2019 Statement, but again the Plaintiff did not provide any basis for contending that this demonstrated malice actuating the August 2019 Statement.

While post-publication conduct may constitute “further evidence of malice” (see, eg, DHKW Marketing at [37]), the Plaintiff has not pleaded any material fact linking such post-publication conduct to the August 2019 Statement. Despite ample opportunity for Mr Lee to explain how the pleaded post-publication conduct related to pre-existing malice, he could only assert generally that it provided some basis for inferring pre-existing malice. He was unable to point to any other pleaded material fact (or, indeed, any affidavit evidence) to support the assertion that there was pre-existing malice which caused the making of the August 2019 Statement. I further note that in the Plaintiff’s further written submissions, it was somewhat confusingly contended on the one hand that “… malice need not have existed prior to the writ and been continually operating, before the Court could take into account post-writ matters towards determining the issue of malice” (emphasis added), and on the other that the Court could “[draw] the relevant inferences as to whether such malice had actually existed at the time of the publication, in the light of those post-publication facts” (emphasis added).

The Plaintiff is obliged to plead matters which support his allegation of malice which, as observed above, is a very serious allegation of intentional impropriety or bad faith (see [20] above). However, the present pleading simply asserts a tenuous link between the Facebook Post, the Alleged Breach of Confidence and the supposed malice which actuated the August 2019 Statement. In my view, this assertion is insufficient to support a plea of malice. I would also add for completeness that no request or attempt was made, whether in oral or written submissions, to amend paragraph 25 of the Amended Reply to rectify the deficiencies or to clarify the Plaintiff’s position. I therefore order that paragraph 25 of the Amended Reply and its accompanying particulars be struck out under O 18 r 19(1)(b) of the Rules of Court.

In addition to being struck out under O 18 r 19(1)(b) of the Rules of Court, paragraph 25 of the Amended Reply may also be struck out under O 18 r 19(1)(c) of the Rules of Court for failing to comply with the rules of pleading. This is because the Plaintiff has failed to plead “particulars of the person or persons through whom it is intended to fix the corporation with the necessary malicious intent” (Ezion at [27]). It bears noting that in Ezion, the High Court concluded that (Ezion at [50]):

I pause to note, parenthetically, that the parties did not dispute the applicability of this principle to the Defendant (being a registered society). In oral submissions, Mr Lee acknowledged the need to identify the individual to whom malice may be imputed, and submitted that the individual in the present case was the Defendant’s president Mr Tang Weng Fei. To this end, Mr Lee pointed to one of the pleaded particulars where Mr Tang was mentioned by name.

However, it is difficult to see how that reference to Mr Tang demonstrates any malice on Mr Tang’s part, or that he is the “person … through whom it is intended to fix the [Defendant] with the necessary malicious intent”. This is so, for two reasons.

(a) First, the pleaded reference simply states that Mr Tang had admitted a “lapse in judgment” resulting in the Facebook Post. It does not actually state that Mr Tang is the person with the necessary malicious intent. It is also unclear, without more, how a “lapse of judgment” suggests malice on Mr Tang’s part – indeed, the material that the Plaintiff himself relies on in relation to the “lapse of judgment” suggests that the “lapse of judgment” was on the part of a staff member. Furthermore, the same Straits Times article cited by the Plaintiff reported Mr Tang’s comment that “[t]his should never have happened”, that “[t]he staff involved has been counselled” and that “[m]oving forward, a media commission will be formed to ensure that such errors will not be repeated”. The Plaintiff also separately exhibited in his affidavit a message from Mr Tang as follows, which does not appear to demonstrate malice on Mr Tang’s part:

While this striking out application is not the proper forum for assessing or weighing evidence in detail, the point is that the material relied upon by the Plaintiff does not support Mr Lee’s submission that Mr Tang is the person to be fixed with the alleged malicious intent.

(b) Second, the pleaded reference to Mr Tang in any event appears limited to the Facebook Post. There is no similar mention of Mr Tang in relation to the Alleged Breach of Confidence. When queried about this at the hearing, Mr Lee simply confirmed that the Plaintiff was imputing malice to Mr Tang for the Alleged Breach of Confidence, but did not identify any pleading or particulars to that effect.

I further observe that at no point in written or oral submissions did Mr Lee seek an opportunity to amend the pleadings to clarify or restate the Plaintiff’s position in relation to the individual within the Defendant who had the necessary malicious intent. In the light of the matters in [30] above, and keeping in view the decision of Ezion (particularly at [27], [28] and [50]), I find that paragraph 25 of the Amended Reply would “embarrass or delay the fair trial of the action”. Paragraph 25 of the Amended Reply and its accompanying particulars should therefore be struck out under O 18 r 19(1)(c) of the Rules of Court.

Finally, for completeness, I would add that I am not with Mr Gaznavi in relation to his argument on abuse of process. Even though the Alleged Breach of Confidence is a live issue in OS 432, OS 432 has yet to be judicially determined. Mr Gaznavi has not provided any legal basis for his submission that raising an issue which has yet to be judicially determined in another proceeding amounts to an abuse of process. While there is a possibility that allowing the Plaintiff to canvass the Alleged Breach of Confidence in the present matter “may result in an inconsistent decision” with OS 432, there are practical and legal mechanisms which can guard against any such concerns.

Conclusion