Goh Chok Tong 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 Goh Chok Tong. Mr Goh is, and was at all material times, the Prime Minister of the Republic of Singapore. On 25 October 2001, Mr Goh, as a candidate of the People’s Action Party (‘PAP’), was returned unopposed as a Member of Parliament for Marine Parade 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 at Hong Kah West hawker centre (‘the Hong Kah Words’) and later that evening at an election rally at Nee Soon Central (‘the Nee Soon Words’), both in public and in the presence of, inter alia, various members of the print and broadcast media, which Mr Goh alleged to be defamatory of him.

[3] On 19 November 2001, the present suit was commenced by Mr Goh against Dr Chee. On 8 December 2001, Mr Goh 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 1459 of 2001, Mr Lee Kuan Yew, the Senior Minister of the Republic of Singapore, commenced a similar suit against Dr Chee for allegedly defamatory words spoken by him at the election rally at Nee Soon on 28 October 2001.

[5] On 28 October 2001, in the course of campaigning for the 2001 General Elections at the Hong Kah West hawker centre, Dr Chee spoke the following words in the presence of, inter alia, various members of the print and broadcast media:

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

[7] At an election rally held at Nee Soon Central on the evening of 28 October 2001, Dr Chee spoke the following words in the presence of members of the public and the print and broadcast media:

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

[9] On 29 October 2001, Dr Chee wrote a letter addressed to Mr Goh as follows:

[10] On 30 October 2001, Dr Chee issued a Media Release as follows:

[11] Before the SAR, Dr Chee took no issue with the first apology and confirmed that it was made voluntarily.

[12] On 30 October 2001, Mr Goh’s solicitors, Drew & Napier LLC, wrote to Dr Chee as follows:

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

[14] On 31 October 2001, Dr Chee read out an apology at an SDP rally at Jurong East (‘the second apology’). Dr Chee also published the second apology in the 1 November 2001 editions of the Straits Times and the Today newspaper. The second apology was in the exact terms of the draft apology enclosed by Mr Goh’s solicitors and read as follows:

[15] Before the SAR, counsel for Mr Goh, 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 Goh was entitled to enforce, and to which Dr Chee had no arguable defence. In any event, Mr Goh was entitled to interlocutory judgment because Dr Chee had no arguable defence to his alternative claim for defamation.

[16] In his Defence filed on 22 December 2001, Dr Chee denied speaking the Hong Kah or Nee Soon Words, denied that they referred to Mr Goh, 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 Goh 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).

[17] 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.

[18] 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 Goh was entitled to enforce the contract of compromise by asking for interlocutory judgment with damages (including aggravated damages) to be assessed.

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

[20] 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.

[21] In the result, the SAR entered judgment for Mr Goh 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.

[22] 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.

[23] While the case was before the SAR, Dr Chee informed him that he had sought the assistance of Mr William Henric Nicholas QC, an expert in the law of defamation in Australia. Upon being informed that Dr Chee wished to defend the application for interlocutory judgment, the SAR took into account Dr Chee’s need to consult his legal advisers in setting the timelines for the filing of his affidavit (even though the time for filing such an affidavit had already expired under the Rules of Court), the exchange of written submissions and the hearing itself. Upon Dr Chee’s request, the SAR granted him an additional two weeks to file his affidavit, as he needed more time to consult his lawyers. In relation to the appeal before me also, Dr Chee confirmed that he had conferred with overseas counsel on the appeal. When the appeal was in train, I afforded Dr Chee a further opportunity to seek legal assistance if he so required at any stage during the appeal.

[24] I now turn to examine the substantive merits of this appeal.

[26] 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:

Once a valid compromise has been reached, it is not open to the party against whom the claim is made to avoid the compromise on the ground that the claim was in fact invalid, provided that the claim was made in good faith and was reasonably believed to be valid by the person asserting it.

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

[28] Dr Chee submitted that the SAR should not have entered summary judgment on the ground that he had failed to particularise his defence of duress because counsel for Mr Goh had never asked for further particulars. He complained that it was not for the SAR to take this point when counsel had not even raised this as an issue. This, Dr Chee, submitted demonstrated the SAR’s bias and that he was ‘acting as the plaintiff’s advocates and solicitors’.

[29] 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:

A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality -

(a) which he alleges makes any claim or defence of the opposite party not maintainable;

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading (Emphasis added).

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

Duress- A claim or defence raising duress must be specifically and carefully pleaded. It should contain full particulars of the facts and circumstances relied upon as to where, when, by whom and over whom and in what way such duress was exercised.

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

[31] 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 dated 1 November 2001 entitled ‘5 SDP members may face legal action too’ 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.

[32] 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.

[33] 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 conducted the case before the SAR and on appeal revealed that his defence was contrived for the sake of creating creating some sort of a triable issue. In his Defence 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.

[34] In his first affidavit, Dr Chee referred to the Straits Times article of 1 November 2001 and stated:

Upon learning about the newspaper report and what Mr Lee said, my fellow candidates and/or their family members became very anxious and concerned. Some of them urged me to apologise to the plaintiff. I took what Mr Lee Kuan Yew said to be a threat that if I didn’t apologise in terms both he and Mr Goh Chok Tong demanded, they would both initiate proceedings against each of my fellow candidates mentioned above.

After lengthy discussions with my fellow candidates, I felt that I had no choice but to issue the apology demanded by the plaintiffs as I did not want to risk jeopardising their future.

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.

[35] When confronted by this material inconsistency at the hearing before the SAR, Dr Chee changed tack and attributed the threat to Mr Goh himself 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).

[36] 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.

[37] 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.

[38] 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 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.’

[39] Dr Chee was, of course, not a lawyer and one would not expect him to express his objections in the form of legal niceties. However, in my view, it was surely not too difficult for someone who had been subject to duress (or for that matter, intimidation) to express in strong terms that he had been forced to make an apology: Wellcherry Limited v Gentleteem Limited [1999] 1529 HKCU 1. The failure to protest is a legitimate factor to take into account when assessing the credibility of the defendant’s defence. In Third World Development Ltd & Anor v Atang Latief & Anor [1990] 1 MLJ 385, the defendant had alleged that an undertaking that the plaintiff was seeking to enforce against him had been procured under duress. The Court of Appeal, in dismissing this purported defence, observed at page 388:

[41] 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.

[42] 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.”

[43] 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:

At para 7-035, the editors of Chitty go on to state:

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

[44] 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:

An allegation that a party has been guilty of bad faith or breach of good faith is the equivalent of dishonesty, though not necessarily for a financial motive, and proper particulars of such an allegation must be pleaded, otherwise the allegation will be struck out: para 18/12/14 of the Supreme Court Practice 1999.

[45] 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 Goh 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 was but an afterthought, contrived for the purpose of creating a colourable defence and therefore not worthy of serious consideration.

[46] 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 Ltd [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.

[47] 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 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.

[48] 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.

[49] 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:

[50] 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:

[51] In the alternative, the SAR entered judgment for Mr Goh on the ground that Dr Chee had no arguable defence to a claim in defamation. Dr Chee attacked the SAR’s findings on the ground that he had no jurisdiction to enter summary judgment in a defamation action. In so doing, the SAR had ‘overstepped his boundaries and acted like a trial judge when he clearly had no authority to do so’. Again, this demonstrated that the SAR’s judgment was ‘fraught with bias’.

[52] 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 Ltd [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.

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

[54] At the risk of repetition, Dr Chee in his Defence denied speaking the Hong Kah or Nee Soon Words, denied that they referred to Mr Goh, 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.

[55] 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 Hong Kah or the Nee Soon Words for fear of compromising his defence. The Hong Kah Words and the Nee Soon 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 Goh. Despite the 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.

[56] 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 paragraphs 58 to 74 of his judgment:

Order accordingly.