High Court · Decided 17 December 2015

Lee Hsien Loong v Roy Ngerng Yi Ling

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[2015] SGHC 320Case no. Suit No 569 of 2014 (Assessment of Damages No 20 of 2015)

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Lee Seiu Kin J:
Introduction
[1] On 7 November 2014, I found that an article entitled “Where Your CPF Money Is Going: Learning From The City Harvest Trial” (“the Article”) written by the defendant was defamatory of the plaintiff. I held that certain words and images in the Article conveyed the meaning that the plaintiff was guilty of criminal misappropriation of the monies paid by Singaporeans to the Central Provident Fund (“the CPF”). I therefore ordered that the defendant be restrained from publishing or disseminating this allegation and any words and/or images to the same effect. I granted interlocutory judgment to the plaintiff with damages to be assessed. This judgment pertains to the assessment of damages payable by the defendant to the plaintiff.
The background facts
[2] The relevant facts are set out at length in my judgment in respect of the plaintiff’s application in Summons No 3403 of 2014 (SUM 3403/2014): see Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230 (“LHL v Roy Ngerng”). Nevertheless, for convenience, I set out below the salient facts of the matter. I have also expanded on the acts of the defendant subsequent to the publication of the Article as they are relevant to the issue of the quantum of damages.
The Article
[3] The plaintiff is the Prime Minister of Singapore. He is also the Chairman of GIC Private Limited (“GIC”), which manages the nation’s sovereign wealth fund. The defendant is the owner and writer of the blog “The Heart Truths to Keep Singaporeans Thinking by Roy Ngerng Yi Ling” (“the Blog”). On or about 15 May 2014, the defendant published the Article on the Blog. The parts of the Article which I held to be defamatory are as follows (“the Defamatory Material”):
[4] The defendant also published a link to the Article on his Facebook page and The Heart Truths’ Facebook page on that day.
The plaintiff’s letter of demand
[5] On 18 May 2014, the plaintiff issued a letter of demand to the defendant through his solicitors (“the Letter of Demand”), which set out the web address at which the Article could be found and the manner in which the Article was said to be defamatory. The plaintiff demanded that the defendant:
(a) Immediately remove the Article from the Blog.
(b) Immediately remove the links to the Article on the defendant’s Facebook page and on The Heart Truths’ Facebook page.
(c) Publish, at his own expense, within three days of the date of the Letter of Demand, an apology and an undertaking in terms of the draft which was enclosed to the Letter of Demand. The apology and undertaking were to be published without any amendment with prominence on the homepage of the Blog. The said apology and undertaking were to remain on the Blog for the same number of days that the Article remained on it.
(d) Compensate the plaintiff by way of damages.
(e) Indemnify the plaintiff in respect of the costs and expenses which he would have incurred in connection with the matter.
The defendant’s subsequent publications
[7] On 19 May 2014, the defendant published on the Blog an article entitled “I Have Just Been Sued By The Singapore Prime Minister Lee Hsien Loong” (“the 19 May Article”). The Letter of Demand was reproduced on the Blog on the same day. The relevant parts of the 19 May Article are as follows:
[8] On 20 May 2014, the defendant published on the Blog another article that he had written entitled “YOUR CPF: The Complete Truth And Nothing But The Truth” (“the 20 May Article”). It read:
The defendant’s apology and offer of damages
[9] On 21 May 2014, at around 5.00pm, the defendant removed the Article from the Blog. He, through his then-solicitors, subsequently sent a letter to the plaintiff’s solicitors (“the Apology Letter”) on 23 May 2014. It stated that the defendant recognised “that the Article means and is understood to mean that Mr Lee Hsien Loong, the Prime Minister of Singapore and Chairman of GIC, is guilty of criminal misappropriation of the monies paid by Singaporeans to the Central Provident Fund”. He also stated that “this allegation is false and completely without foundation” and “unreservedly apologise[s]” for causing the plaintiff “distress and embarrassment” by the allegation. The Apology Letter also requested that the plaintiff consider dropping his demand for damages. The defendant also published two articles on the Blog on the same day (“the 23 May Articles”) – one entitled “Letter To Lee Hsien Loong On Defamation Suit And Opportunity For ‘Open Dialogue’” in which the Apology Letter was published; and another entitled “Apology and Undertaking to Lee Hsien Loong” which contained his apology together with an undertaking not to make any further allegations of this nature.
[10] The request to the plaintiff to drop his demand for damages was turned down by the plaintiff’s solicitors, who maintained the plaintiff’s right to damages. The defendant was informed of this by his then-solicitors on 24 May 2014 and he published the following on the Blog in an article entitled “Roy Ngerng’s Message: Defamation Suit From Singapore Prime Minister” (“the 24 May Article”):
[11] That video, to which a link was provided in the 24 May Article, was posted by the defendant on YouTube on the same day (“the Video”). Among other things, he said the following:
The subsequent acts of the defendant
[12] On 25 May 2014, the defendant sent an email to members of the international media with the subject heading “Singapore Blogger Sued By Singapore Prime Minister for Defamation” (“the First Email”). The email provided links to some of the articles above, and read:
[13] The First Email was also forwarded on two other occasions on 26 May 2014 to 61 other email addresses belonging to members of the media, of which seven were unable to receive the First Email.
[14] At about the same time, the defendant also sent out on three occasions another email entitled “UPDATE: Singapore Blogger Sued By Singapore Prime Minister for Defamation” (“the Second Email”) to the addressees of the First Email, as well as another seven locally-based persons or entities. The Second Email read:
[15] The letter referred to in the Second Email was likely to have been the letter sent by the plaintiff’s solicitors to the defendant’s then-solicitors on 26 May 2014 (“the 26 May Letter”) highlighting the aggravating nature of the 24 May Article and the Video. The letter also stated that the plaintiff would not claim aggravated damages against the defendant if he immediately took down other articles drawing comparisons between the criminal charges relating to the alleged misuse of funds belonging to the City Harvest Church and the use of the CPF funds (including the 20 May Article and the 24 May Article), and undertook not to “further aggravate the injury and distress” to the plaintiff. The defendant agreed to this request by way of a letter from his then-solicitors dated 26 May 2014. Both these letters were published on the Blog on the same day in an article entitled “Lee Hsien Loong’s New Request To Take Down 4 More Articles And 1 Video” (“the 26 May Article”).
[16] Notwithstanding the above, the defendant did not remove the Video but instead restricted its access to a select group of people. Accordingly, the plaintiff’s solicitors sent a letter to the defendant’s then-solicitors on 27 May 2014 pointing out the same. They also sought clarification on the First Email and the Second Email (collectively, “the Emails”), which they viewed to be “further aggravation”. The reply by the defendant’s then-solicitors stated that they had no prior knowledge of those emails, and that the defendant “sincerely and unreservedly apologises for his momentary lapse of judgment”. This was soon followed by another letter from the defendant’s then-solicitors offering $5,000 as damages to the plaintiff. This letter conveying the defendant’s offer was published on the Blog on 27 May 2014 in an article entitled “I Have Proposed The Damages To Lee Hsien Loong For The Defamation Suit” (“the 27 May Article”).
[17] This offer was rejected and on 28 May 2014, the defendant’s then-solicitors wrote to the plaintiff’s solicitors, stating:
[18] This letter was published in the Blog on 28 May 2014 in an article entitled “I Will Continue To Speak Up On Singaporeans’ CPF To Protect Us”. The plaintiff commenced legal proceedings the following day.
[19] It is appropriate to note at this juncture that the only defamatory statement that the defendant has been found to have made is that which is comprised in the Article as I have held it in LHL v Roy Ngerng. Nevertheless, the defendant’s actions, the Video and the other articles that the plaintiff asked to be taken down in the 26 May Letter may be relevant in the assessment of damages flowing from the defamatory statement.
The quantification of damages for defamation
[20] The Court of Appeal set out the manner in which a plaintiff in a defamation suit may recover damages in Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 (“Peter Lim”) at [5] (citing Pearson LJ in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at [104]–[105]):
[21] General damages therefore serve three functions in defamation actions – to act as consolation to the plaintiff for the distress he suffered from the publication of the statement, to repair the harm to his reputation, and to vindicate his reputation: see Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86 (“Arul Chandran”) at [53]. In order to fulfil these functions, the court will take into account the following circumstances in the assessment of general damages:
(a) the nature and gravity of the defamation;
(b) the conduct, position and standing of the plaintiff and the defendant;
(c) the mode and extent of the publication;
(d) the natural indignation of the court at the injury caused to the plaintiff;
(e) the conduct of the defendant from the time the defamatory statement is published to the very moment of the verdict;
(f) the failure to apologise and retract the defamatory statement; and
(g) the presence or otherwise of malice.
[22] Notwithstanding the basic common law rule that damages are awarded on a compensatory basis in civil actions, it has been held that deterrence is also a relevant consideration in respect of the quantification of general damages in defamation actions. In Peter Lim at [8]–[9], the Court of Appeal held:
[23] One might observe that considerations of deterrence do not sit comfortably with the compensatory nature of damages in a civil action. As it stands, the role that deterrence plays in the assessment of damages in defamation actions in England is less than settled; Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013) (Prof Alastair Mullis and Richard Parkes QC eds) (“Gatley”) at para 9.4 observes that “[a]lthough deterrence may not be a formal purpose of general damages for defamation, yet where such damages are substantial (as they are in England) deterrence is an effect of them” [emphasis in original]. Indeed, it was probably Sedley LJ’s disquiet over the blurring of the common law rule in respect of the award of damages in defamation actions that led him to propose a revival of the criminalisation of defamation in Kiam v MGN Ltd [2003] QB 281. Nevertheless, our courts appear to have accepted, as Lord Hoffmann seemed to have done in The Gleaner Co Ltd v Abrahams [2004] 1 AC 628 (“The Gleaner”), the role deterrence plays in the quantification of damages for defamation as a practical compromise. In The Gleaner at [54], the learned judge held:
[24] The conduct of a defendant may also warrant the award of aggravated damages. While they are assessed as separate heads of damage, there is little distinction conceptually between aggravated and general damages for a defamation action; aggravated damages are similarly governed by compensatory principles. As the circumstances warranting the award of aggravated damages show, these damages are better viewed as damages awarded for the aggravation of the injury to the plaintiff. Arul Chandran at [55] sets out some of the relevant factors, many of which overlap with the factors relevant to the assessment of general damages:
[25] With that, I turn to apply these principles to the facts of the present case.
The nature and gravity of the defamation and the natural indignation of the court
[26] In Koh Sin Chong Freddie v Chan Cheng Wah Bernard and others and another appeal [2013] 4 SLR 629 at [25], the Court of Appeal held (citing Sir Thomas Bingham MR in John v MGN Ltd [1997] QB 586 at 607):
[27] In particular, allegations of corrupt and criminal conduct can have severe repercussions, especially if levelled against the leader of a country. As stated by F A Chua J (“Chua J”) in Lee Kuan Yew v Seow Khee Leng [1988] 2 SLR(R) 252 at [25] (“Seow Khee Leng”), “[s]uch charges unless challenged head on would destroy the plaintiff, as moral authority is the cornerstone of effective government”. In Seow Khee Leng, the defendant, then the Secretary-General of the Singapore United Front, had accused the Prime Minister of deliberately allowing Phey Yew Kok, a member of Parliament from the ruling party, to escape from Singapore to Taiwan after embezzling more than $6m, having “assisted or connived at or condoned … members of Parliament and ministers corruptly enriching themselves” (at [23]), as well as having the intention of resisting any investigations into the conduct of these members of Parliament and ministers.
[28] In a similar vein, it was held by Goh Joon Seng J in Lee Kuan Yew and another v Vinocur John and others and another suit [1995] 3 SLR(R) 38 (“Vinocur John”) at [55] that the allegation of nepotism and corruption levelled against the Senior Minister, the Deputy Prime Minister and the Prime Minister was “an attack that would cause grievous harm to them in the discharge of the functions of their office and indignation on their part as it was an attack on the very core of their political credo”. The defendants in Vinocur John were employees of the International Herald Tribune and had implied, inter alia, that the Deputy Prime Minister had been appointed to his various posts through the practice of nepotism by the Senior Minister, aided and abetted by the Prime Minister.
[29] The allegation in the present case was no less serious. As is apparent from recent events in this region, an accusation that one has criminally misappropriated monies paid by citizens to a state-administered pension fund is one of the gravest that can be made against any individual, let alone a head of government. Such accusations, striking at the heart of one’s personal integrity, can severely undermine the credibility of the target. For these reasons and in particular, the criminal nature of the act allegedly committed by the plaintiff, I am of the view that this was a grave defamation that a fair-minded person would react with indignation to.
The position and standing of the plaintiff and the defendant
[30] As the Court of Appeal observed in Peter Lim at [12]-[13], Singapore courts have consistently awarded higher damages for the defamation of public leaders compared to other persons. This is because of the unique factors which apply to such figures:
[31] It was not disputed that the plaintiff is the holder of the highest political office in the country. The defamation of the plaintiff therefore warrants damages which would be higher than what would be awarded to an ordinary individual. As alluded to in the above extract, public leaders in Singapore hold positions of trust and confidence and their reputations are vital to their ability to lead and to be given the mandate to govern. In Goh Chok Tong v Chee Soon Juan [2005] 1 SLR(R) 573 (“GCT v CSJ”), Kan Ting Chiu J said at [40]–[42]:
[32] It has been said that reputation is merely temporary; to the extent that it suggests that damage to reputation may be vindicated, I agree. But reputation is a priceless asset that takes years of effort to build. Once stained, it can be a long arduous process to restore one’s reputation to its original state. There may still remain indelible marks, which will sow seeds of doubt that may jeopardise any political career. The defamation of public leaders has thus been taken seriously by the courts – a stand that has been reflected in the quantum of damages awarded to this class of plaintiffs.
[33] As the extract above from GCT v CSJ also shows, the standing of the defendant is another salient consideration. The greater the standing of the defamer, the greater will be the impact of the defamation and degree of injury. In Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1979-1980] SLR(R) 24 (“LKY v Jeyaretnam (HC)”), Chua J noted at [70] that the slander in that case was “spoken by the principal opposition speaker and a prominent person whose words would carry more weight than that of a lesser individual and his hearers would be inclined to believe that there must be something in the accusation he was making”.
[34] The defendant submits that the converse also applies. That is, a defamer of low credence would be less likely to be believed and this would lessen the gravity of the accusation. He refers me to the decision of the Hong Kong Court of Final Appeal in Oriental Daily Publisher Ltd and Anor v Ming Pao Holdings Ltd and others [2012] HKCFA 59 (“Oriental”), where it held that the low credence of the accused justified a reduction in the award of damages by the Hong Kong Court of Final Appeal. The Hong Kong Court of Final Appeal stated at [41]:
[35] Counsel for the plaintiff, Mr Davinder Singh SC (“Mr Singh”), does not seek to dissuade me from following this proposition. Instead, Mr Singh submits that the facts of Oriental show that a high threshold had to be met before a party could be said to have “low credence”. Oriental involved the republication by the defendant, a Chinese language daily, of defamatory material authored by the principal defamer, a man who referred to himself as the “Hong Kong bin Laden”. The Hong Kong Court of Final Appeal held that the fact that the principal defamer had likened himself to “an infamous terrorist responsible for the deaths of thousands of innocent people” and that he had just emerged from prison for criminally intimidating one of the plaintiffs would have severely undermined his credibility. Accordingly, few readers would have found the accusations credible.
[36] I disagree that a high threshold has to be met before the credibility of the defamer could be taken into consideration in the assessment of damages. In my opinion, no such legal proposition can be discerned from Oriental and I cannot see why there has to be a threshold. I am reinforced in my views by the fact that none of the cases cited by the Hong Kong Court of Final Appeal in Oriental suggests any such threshold. In Randall v Weich 1982 CarswellBC 2254, a decision of the British Columbia Supreme Court, a member of the International Union of Operating Engineers was found guilty of defaming officers of the Union. The defendant had been openly and actively opposed to the plaintiffs for a number of years prior to his act of defamation and as a result, the court held at [24]:
[37] Similarly, in Kohuch v Wilson 71 Sask R 33, a decision of the Saskatchewan Court of Queen’s Bench, the mother of an elementary school child launched a personal campaign against the principal and the director of education, making countless allegations against them by calling open line radio shows and writing letters to various parties. The court held that damages would be attenuated by the fact that the defendant would not be taken seriously by most people.
[38] Neither of the defendants in these Canadian cases possessed a reputation that approached the level of notoriety that the principal defamer in Oriental had. They were merely ordinary citizens who ostensibly had an axe to grind.
[39] Because damages in defamation are for injury to reputation, it is quite evident that the standing of the defamer is relevant to the degree of injury. In my view, there is a continuum of damages that is commensurate with the standing, or lack of it, of the defamer. The words of a dishevelled tramp in a street corner would be far less capable of causing damage than that of the CEO of a multi-national company.
[40] I turn now to consider the circumstances of the defendant. Mr Singh emphasises the following features in the present case:
(a) The defendant had a widespread reach through the Blog, which attracted a high number of views and had won an award from “TheSmartLocal.com” for being one of the “Most Popular Singapore Blogs” in 2013.
(b) The defendant had “represented himself to be a person who promised to speak the truth and to present accurate information on issues concerning Singaporeans”.
[41] In relation to the first point, viz, the reach of the defamatory publication, I am of the view that the popularity of the Blog, while indicative of its reach, is not necessarily indicative of the credibility of the defendant. In any case, I certainly do not think that the popularity of the Blog (which averaged around 355 views per day in 2013) and the manner in which his views were presented were sufficient to elevate his credibility to that of a leading opposition politician for instance, or to imbue his words with the gravitas they would have had had they been in a publication with an international circulation.
[42] As for the second point, Mr Singh makes reference to how the defendant had used the blog as a platform for the discussion of social and political issues and how he had viewed himself as an alternative to the mainstream media. He also points to the defendant’s portrayal of himself as the voice of truth, and that the defendant had considered himself to have a significant standing amongst Singaporeans. I accept that the defendant had made many representations in the Blog to that effect. But there is nothing to show that he had in fact enjoyed such standing – there is no evidence of his perceived credibility or the influence he actually wielded. I would compare this with the situation in Barrick Gold Corporation v Lopehandia et al 71 OR (3d) 416 (“Barrick”), which is discussed further below at [54]. In Barrick, the defamatory statements resulted in inquiries to the Toronto Stock Exchange as well as its shareholders in respect of those allegations. As Blair JA noted at [40], “[a]n inquiry of that nature from a regulatory agency governing a public company is not to be taken lightly”. There is nothing to suggest that the allegations in the present case were treated with the same import, particularly given the gulf in the relative standings of the plaintiff and defendant. Notwithstanding his attempts to fashion himself as an investigative journalist of sorts, the defendant has never sought to conceal the fact that he is merely an ordinary citizen writing on his personal blog; there was no pretence that he had any information that others were not privy to that would have lent credence to his allegations.
[43] In these circumstances, I am of the view that the defendant’s standing points to a lower award of damages in comparison to the other cases involving the defamation of public leaders in Singapore.
The mode and extent of the publication
[44] It is trite law that the wider the extent of publication, the greater the award of damages for defamation: Peter Lim at [33]. In this regard, it was not disputed that the Article was hosted on the Blog from 15 to 21 May 2014, where it could be viewed in its entirety either as a standalone entry on the sub-page (“the Sub-Page”) or on the home page of the Blog (“the Home Page”).
[45] The defendant provided statistics on the number of views that the Article garnered during this period, as compiled by the webhost of the Blog. They showed that the Sub-Page had been accessed 9,122 times prior to its removal from the Blog on 21 May 2014. Additionally, the number of views that the Home Page garnered during the relevant period were as follows:
[46] The defendant sought to downplay the extent of the reach of the Article, asserting that the Article had only been read by 3,558 people (being 39% of the 9,122 times the Sub-Page was accessed prior to its removal). He arrived at this percentage in the following manner. Although the total number of views of the Blog in May 2014 was 1,121,870, only 440,432 were unique visitors, ie, 39% of the total views. According to the defendant, this same percentage should be applied in relation to views of the Sub-Page to determine the number of unique individuals there. I have my doubt as to whether it is appropriate to use the total views of the Blog as the basis for estimating the number of distinct individuals who viewed the Sub-Page; unlike the Home Page, which is likely to be the first point of access for repeat visitors to the Blog, it is unlikely that visitors would have gone back to the Sub-Page on subsequent occasions.
[47] In any case, the figure of 3,558 does not account for the instances on which the Article was viewed on the Home Page. In this regard, the defendant suggests that the number of views of the Home Page is not indicative of the number of individuals who viewed the Article, since they could be that of repeat visitors to the Blog or visitors who were simply viewing the non-defamatory material hosted on the Blog. There is, in my view, greater force to this argument. Nevertheless, I agree with Mr Singh that the spike in viewers of the Home Page after the publication of the Letter of Demand, and the drop in viewership after the Article was removed from the Blog, suggests that a large number of the 95,433 views could be attributed to distinct individuals who sought the Defamatory Material in the Article after it had received some publicity in the mainstream media and elsewhere. In any case, as Mr Singh highlights, even if I were to accept the defendant’s basis for the calculation of distinct viewers of the Article, there would still have been another 39% of 95,443, amounting to 37,223 individuals, who viewed the Article on the Home Page, a not insubstantial number.
[48] The defendant argues that the spike in the number of views from 19 May 2014 indicates that many of these visitors to the site would have been interested in his being sued by the plaintiff rather than the Article. It may well be, as the spike in the number of views of the Blog from 19 May 2014 shows, that the publicity generated by the commencement of legal action by the plaintiff and the publication of the Letter of Demand in the Blog were what drew interest to the Blog. But the reasons for viewing the Blog have little relevance to the extent of its reach. The most that could be said is that many of these visitors to the Blog would have known, at the time of viewing, that the defendant was facing the threat of being sued for defamation on account of the Defamatory Material and therefore exercised a greater degree of scepticism as to its contents. This would be a relevant factor in the assessment of damages.
[49] Both the plaintiff and defendant also draw my attention to the mode of the publication (ie, making the Defamatory Material available on a website), albeit for different reasons. Mr Singh highlights the potential for vast and rapid spread in relation to defamatory material posted online, referring to the decision of the UK Court of Appeal in Cairns v Modi [2013] 1 WLR 1015 (“Cairns”). In Cairns, the defendant had posted a defamatory message (“the Tweet”) on Twitter. The judge found, by consent, that there were 65 immediate publishees to the Tweet. Notwithstanding that, he held that a court should not confine the assessment of damages only to the publication to the original publishees, but should take into account the propensity of defamatory messages to “percolate through underground channels and contaminate hidden springs” (at [26]). Lord CJ held at [27]:
[50] In the same vein, the author of Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 3rd Ed, 2010) says at para 20.11:
[51] Indeed, subsequent events showed that the Defamatory Material did “percolate” soon after its publication by the defendant, facilitated no doubt by the ease by which it could be reproduced and disseminated. The defendant did not dispute that that the Defamatory Material was republished or linked to on 11 other blogs and websites, nor did I think it would have come as any surprise to him given the nature of the allegations.
[52] The defendant, on the other hand, argues that the publication of the Defamatory Material on the Blog warrants the lowering of damages against him. In essence, he contends that that the context in which the defamation was made detracted from the credibility of the defamatory allegations. Specifically, the fact that the Defamatory Material had been published on a blog weighs against its credibility and accordingly, reduces its defamatory sting. He emphasises that “a blog is not subject to oversight, editorial review and professional pressures to provide accurate and unbiased information”, and that “[t]he internet is known to be transient and unregulated to a large extent”. It should be stressed that this is a submission distinct from that on the defendant’s standing – the defendant’s argument, as I understand it, is that defamatory material posted on a blog is necessarily given lesser credence by virtue only of the medium on which it is hosted.
[53] I note that the context in which a defamatory remark is made is not one of the factors that have been commonly listed in our courts. Notwithstanding that, it is clear to me that the factors listed above at [21] were not intended to be exhaustive. Indeed, Peter Lim at [7] states that the “circumstances that are relevant and should be taken into account include” [emphasis added] those factors. The mode in which the publication was made was also considered in Lee Kuan Yew v Davies Derek Gwyn and others [1989] 2 SLR(R) 544 (“LKY v Davies”), in which the court found (at [132]) the fact that “[t]he libels appeared in a reputable and influential publication with worldwide circulation … read generally by people in the business and financial communities and the intelligentsia” to be aggravating.
[54] Neither the defendant nor the plaintiff cited any authority specifically addressing blogs as a species of internet defamation. Nevertheless, there have been judicial pronouncements on the credibility of defamatory material on the internet, albeit in relation to bulletin board posts. In Nigel Smith v ADVFN Plc and others [2008] EWHC 1797 (QB) (“ADVFN”) at [14]–[17], the English High Court held that such communications are not taken as seriously as “they are often uninhibited, casual and ill thought out” and “it is often obvious to casual observers that people are just saying the first thing that comes into their heads”. The majority of the Court of Appeal for Ontario in Barrick, however, came to a different conclusion. Barrick concerns a businessman who had embarked on “a systematic, extensive and vicious campaign” of internet postings relating to the plaintiff. This comprised numerous messages posted on bulletin or message boards on various websites, attacking the plaintiff’s claim to ownership over one of their mining properties and accusing the plaintiff of numerous acts of criminal conduct. Blair JA, delivering the judgment of the majority, held at [38]:
[55] I see some force in the defendant’s arguments in that the Blog was not an institutional site – it did not have the backing of any organisation from which it could draw credibility, nor did it pretend to. However, unlike the defamatory statements in ADVFN and Barrick, this was not merely a bulletin board post written flippantly or in haste, nor was it incoherent or rambling. This was a website which had existed since 2012 and, according to the defendant, contained close to 400 articles. The Article was written in a well-structured and grammatical manner, bolstered by charts and statistics from verifiable sources and accompanied by quotes purportedly from persons of repute. There is no reason to believe this was not the standard in most if not all the other articles. In my opinion, there is no hard and fast rule that publication in a blog would mean that an article is less likely to be believed. What matters is the impact of the Article on the objective reader. It is probably true that the credibility of an article published in the blog of a person who is not well known would be lower than one in an edited journal. However a well-written article in such a blog would be taken more seriously than one that is poorly written, or poorly presented. The fact that the Article is well presented would give it greater credibility than a less well written one in a personal blog. In my judgment this quality of the Blog raises its impact above that of a run-of-the-mill blog. But it would be much less influential than a traditional newspaper.
The defendant’s apology
[56] The parties agree that an immediate withdrawal of the Defamatory Material coupled with an apology by the maker of the defamatory statement is a mitigating factor. In Cairns, the Court of Appeal held at [24] that the “rapid publication of the withdrawal of a defamatory statement, accompanied by an apology, together with an admission of its falsity given as wide publicity as the original libel diminishes its impact more effectively than an apology extracted after endless vacillation”. The dispute before me is whether the apology by the defendant was truly unreserved and sincere.
[57] The defendant points to the fact that the Article was removed from the Blog on 21 May 2014, less than a week after it was published, and that he had published his apology and undertaking in the 23 May Articles two days thereafter. The apology and undertaking continue to remain on the Blog. The defendant also emphasises that he had reiterated his apology several times in his then-solicitor’s letters to the plaintiff’s solicitors, and that the Article in full can no longer be found on the internet. I note in passing that the defendant does not say that the Defamatory Material can no longer be found on the internet, though I am of the view that it is of little relevance to the mitigation value of his apology. Taking all of the above into account, the defendant submits that the apology and retraction are matters tending to mitigate damages: see Lee Hsien Loong v Singapore Democratic Party and others and another suit [2009] 1 SLR(R) 642 (“LHL v SDP”) at [72].
[58] Mr Singh does not contend that the apology, which was in terms requested by the plaintiff, was ineffective on its face. However, he casts doubts over the sincerity of the defendant’s apologies, contending that they were made in order to “enable [the defendant] to get away without paying damages and to use … the response to the libel to get further into the public eye by having a debate with the [p]laintiff”. In particular, he points to the fact that the defendant had continued to make the Letter of Demand, containing the Defamatory Material, available on the Blog for more than a year. He also directs my attention to the 24 May Article, in which the defendant had stated that “the apology was made only in relation to the perceived suggestion of ‘misappropriation’”. In this regard, he says that the apology was not sincere, and submits that the authorities support the proposition that an apology that is neither unreserved nor sincere is an aggravating factor.
[59] I am not persuaded that the reasonable inference to be drawn from the continued availability of the Letter of Demand on the Blog is that the apology was false. The defendant accepts that he would have read the Letter of Demand and that he would have seen that it reproduced the Defamatory Material. What Mr Singh appears to suggest is that this shows that the defendant had deliberately left the Letter of Demand on the Blog as a means of maintaining the Defamatory Material in the public domain, contrary to his undertaking. I do not think that this is sufficiently supported by the evidence before me.
[60] I next consider the significance of the phrase “perceived suggestion of ‘misappropriation’” in the 24 May Article. The defendant sought to provide an explanation as to what this meant during his cross-examination:
[61] Mr Singh contends that the phrase conveys the meaning that the defendant was only apologising for an allegation that was perceived only by the plaintiff and which the defendant himself did not believe the Article to contain. Mr Singh argues that this paints a picture of the defendant being bullied into apologising by the plaintiff. He also says that the defendant’s explanation contradicts the defendant’s affidavit of evidence-in-chief (“AEIC”), in which he stated at para 45:
[62] As I understand it, the defendant’s explanation is that the phrase “perceived suggestion of misappropriation” was intended to mean that he had no intention of making any such allegation. That is, “perceived” means perceived by the reasonable person and not only by the plaintiff. I accept his explanation. This phrase, when read in the context of the 24 May Article, did not suggest that he was contesting the falsity of his allegations of criminal conduct against the plaintiff; it simply indicated that he personally did not believe the Article contains the libel. This is entirely consistent with paragraph 45 of his AEIC.
[63] It is important to flag out at this juncture that this is the constant thread that runs through the defendant’s arguments (and indeed, the material before me) in the present proceedings – the defendant’s case, essentially, is that he has never deviated from his apology and retraction of this particular allegation of criminal misappropriation. That is, a distinction should be drawn between his comments relating to the management of the CPF monies and the defamation which he has published. This is also relevant to the assessment of the defendant’s conduct and is discussed further below.
[64] I now consider how an apology serves to mitigate damages. Gatley at para 29.2 states that the “purpose of an apology is to appease the injured feelings of the person defamed and to undo the harm done to his reputation in consequence of the publication”. The mitigatory effect of an apology must therefore be assessed with a view towards the fulfilment of its consolatory and vindicatory aims, bearing in mind the defamatory imputation of the Article for which damages are to be quantified. This is a distinct inquiry from whether an act or publication is deemed to be aggravating.
[65] I proceed to examine the defendant’s apology in that light and also in the context of his actions immediately after the apology was posted. He removed the Article from the Blog on 21 May 2014 and on 23 May 2014, sent the Apology Letter to the plaintiff’s solicitors and published it on the Blog. However, one day after this, on 24 May 2014, when his request to waive damages was rejected by the plaintiff, he posted the 24 May Article on the Blog. He also provided a link to the Video, posted on YouTube. On 25 May 2014, he sent the First Email to members of the international media, followed by the Second Email. These are described in [9]–[14] above. In my view, those publications have the effect of diluting the force of the Apology Letter. In Adelson v Associated Newspapers Ltd (No 2) [2009] EMLR 10 (“Adelson”) at [72]–[74], the English High Court accepted the plaintiff’s submission that “an apology that is not full or frank does not appease the feelings of the person defamed and does not undo the harm to the claimant's reputation”. Adelson involved a defendant who had advanced a substantive defence of justification containing 64 paragraphs of particulars. The defendant was, at the same time, publicly asserting the truth of its defence of justification and offering to make a statement in open court acknowledging that the defamatory allegations that were the subject of the plea of justification was “absolutely and utterly false”. Similarly, in Seow Khee Leng, the defendant there admitted not only that he had meant to qualify his apology, but that his statements were understood as such.
[66] The general public who have read the 23 May Articles would have seen that the defendant had acknowledged that the allegation that the plaintiff had criminally misappropriated monies from the CPF was “false and completely without foundation”. Although nothing in the defendant’s subsequent publications over the next few days changed that position as far as the allegation of criminal misappropriation was concerned, the disinterested observer would conclude from the acts of the defendant subsequent to the publication of the Apology Letter that he was not contrite: he posted the 24 May Article on the Blog where he qualified his apology, he posted the Video on YouTube in which he accused the plaintiff of using the law to silence him, and he sent out emails to the international media containing similar accusations. Clearly, the articles and emails that followed the publication of the Apology Letter in the Blog would have done little to appease the injured feelings of the plaintiff notwithstanding the unequivocal terms of the Apology Letter. As for the second purpose of undoing the harm done by the libel, the post-apology publications would have undone any mitigation effect that the publication of the Apology Letter had achieved.
The conduct of the defendant and his purported malice
[67] Mr Singh submits extensively on this point, arguing that the conduct of the defendant demonstrates malice on his part that warrants an award of aggravated damages. As stated in Gatley at para 9.21:
[68] In the context of a defamation action, the use of the term malice has not been restricted to its ordinary meaning of spite or ill-will, but has also been taken to include “some wrong or improper motive”: see LKY v Davies at [112]. Malice can be inferred by the defendant’s conduct at any time and not just immediately prior to the making of the defamatory statement; whether before or after the publication of the defamatory material, or during the course of litigation: see Gatley at para 32.45. In particular, it can be inferred from the defendant’s demeanour and attitude at trial or from the publication of allegations which are patently false: see LHL v SDP at [104] and [140]. It was held in Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 2 SLR(R) 971 at [53] that the maker of a defamatory statement made “recklessly, without considering or caring whether it be true or not” is “treated as if he knew it to be false” and had acted in malice.
[69] Mr Singh invites me to infer malice on the part of the defendant from, inter alia, the following:
(a) The defendant had published patently false allegations when he was either aware of the falsity of the Defamatory Material from the start or was reckless as to its truth.
(b) The defendant had caused the libel to be widely published and republished.
(c) The defendant had repeated the Defamatory Material even though he had no belief in its truth from the start.
I address each of these aspects of the defendant’s conduct in turn.
The publication of a patently false allegation
[70] The defendant testified, and Mr Singh does not contend otherwise, that he had never operated under the impression that the plaintiff had actually misappropriated monies from the CPF. What Mr Singh does dispute is the defendant’s assertion that the defamation was wholly unintentional. That is, the defendant claims that he did not know that the Defamatory Material conveyed the defamatory meaning as I had found in LHL v Roy Ngerng. Malice, being a subjective state of mind, is not made out if the defendant’s version is true.
[71] The defendant proffered several explanations in support of his claims of innocent publication. First, he stated in his opening statement that “the unfortunate juxtaposition of the [City Harvest Church trial] and the issue of CPF was purely unintended” as he “was [only] used to dealing with socio-political commentaries” and not “personalities”. Second, when questioned as to his use of the word “misappropriated”, he claimed that he was not aware and therefore was not referring to criminal misappropriation as set out in the Penal Code (Cap 224, 2008 Rev Ed). Third, he further stated during his cross-examination that the Article was directed at the government and not the plaintiff.
[72] I am not convinced by any of the defendant’s explanations, and am of the view that he did in fact know of the imputation that the Defamatory Material carried. His first explanation (ie, that he had not intended to draw parallels between the City Harvest Church trial and the issue of the CPF) is, in my judgment, completely untenable given the use of the phrase “uncanny resemblance”, and is undermined by his later explanation that he had only intended to show how the government was routing the CPF funds between certain state-related entities. Neither am I persuaded, as the defendant appears to suggest, that his use of the word “misappropriation” was intended to be independent of any connotations of criminal wrongdoing. Putting aside my difficulty in understanding how an allegation of the taking of monies from a state-administered pension fund was not an allegation of criminal wrongdoing, the defendant himself conceded during his cross-examination that he was aware, having read the Channel News Asia article, that misappropriation was a crime for which the accused persons in the City Harvest Church trial were charged. As for the distinction that the defendant drew between the government and the plaintiff, I agree with Mr Singh that there is no reason why the defendant would have used the plaintiff’s photograph and referred to him by name had he truly intended to refer only to the government as an entity independent of the plaintiff. I therefore find that the defendant had in fact published the Article despite knowing that it was defamatory of the plaintiff.
[73] Mr Singh contended that the publication of the Defamatory Material was an act calculated by the defendant to “boost the viewership of the Blog and bolster his standing in the community”, which he had sought to achieve by crafting the Article in a sensational manner and by timing its publication to maximise its effect and circulation. He points to the fact that the defendant had been aware of the Blog’s falling viewership and of the high degree of public interest that the City Harvest Church trial was generating.
[74] While I do not think that there is sufficient evidence to show that the defendant had bided his time and exploited the notoriety of the City Harvest Church trial in order to maximise its effect, I am satisfied that the circumstances viewed in their totality at least show that the defendant had cynically defamed the plaintiff in order to increase viewership of the Blog. Having found that the defendant was aware of the defamatory meaning of the Article at the time of its publication, there seems to be no other reason as to why he would have published the Article other than to boost the viewership of the Blog and his credentials as a socio-political critic.
[75] Even if I am wrong and his motives for the publication of the Article were independent of any desire for self-promotion, that does not detract from a finding of malice on the part of the defendant. Regardless of his motives, he had clearly published an article containing assertions, the truth of which he was not just reckless to, but which he had actually known to be false and injurious to the reputation of the plaintiff. This is further aggravated by his conduct subsequent to the publication of the Article as discussed below.
Increasing the reach of the Defamatory Material
[76] Mr Singh points to the publication of the 19 May Article as further evidence of the defendant’s malice, arguing that the defendant had used it to draw more attention to the Defamatory Material. This is because the 19 May Article reproduced the Letter of Demand, which would have displayed not just the Defamatory Material but also the links to the Article. The defendant, on the other hand, denies that he had any intention to do so. He first claimed during cross-examination that he “[did] not remember the contents of the letter because [he] was in shock and fear” and that it “went out without [his] knowing”.
[77] In my view, the credibility of the defendant’s claims of having experienced “shock and fear” is greatly diminished by the contents of the 19 May Article and the 20 May Article. The defiance of the defendant is manifested in his call to the readers of the Blog to “stand up and fight”. I am not convinced by the defendant’s claim that he had been unaware that the Defamatory Material was reproduced in the Letter of Demand as he had conceded in cross-examination that he had read the Letter of Demand and was aware of its contents. In my view, the defendant knew that the Letter of Demand would attract much public interest. He would therefore have known that the publication of the 19 May Article, which reproduced the Letter of Demand, would greatly increase the reach of the Defamatory Material and the likelihood of its republication.
[78] What is also of significance is that unlike the 24 May Article and the Video, there had not been any apology at the time the 19 May Article was published, nor was there any distinction drawn in the 19 May Article between the defendant’s allegation of criminal conduct by the plaintiff and his general criticisms of the CPF. The reasonable reader of the 19 May Article would therefore have understood the defendant to be maintaining the truth of his assertions, at least until the publication of his apology on 24 May 2014.
[79] Mr Singh also refers to the publication of the 20 May Article. He argues that its publication is aggravating given that it “reminded the readers of the Blog to read the earlier comparisons between the CPF monies and the City Harvest Church case”. This, Mr Singh says, is an example of how the defendant “sought to use every opportunity to promote himself and rub salt to the wound”. I am unable to agree. Mr Singh does not point to any actionable libel in the 20 May Article, in my view rightly so. In that article, the defendant was making his case as to why the government was wrong in its CPF policy. Whether those arguments are valid is not relevant; what is beyond doubt is his right to make and publish them. There was no direct reference to the Article or the allegations therein, and to find that it was aggravating in the manner that Mr Singh contends would be to limit the defendant’s right to free speech simply on the basis that they could have led to the Defamatory Material, a finding which I am not prepared to make.
The defendant’s post-apology conduct
[80] I now turn to the defendant’s conduct subsequent to his apology, which includes:
(a) The publication of the articles on the Blog between 24 and 28 May 2014.
(b) The posting of the Video on YouTube.
(c) The sending of the emails to persons including members of the media.
(d) The publication of Court documents containing the Defamatory Material on the Blog.
(e) The publication of articles on the Blog on 9 and 30 June 2015, in which he claimed to have been persecuted for his views.
I refer to them collectively as “the Subsequent Publications”.
[81] A recurring theme of political persecution emanates from these materials and which continued into the hearing – clearly, the defendant saw himself to be, or at least sought to fashion himself as, a martyr, a bastion of truth which would be crushed under the weight of oppression and tyranny. Mr Singh submits that they show that the defendant had portrayed the plaintiff as being unreasonable and as “someone who was out to persecute him for his advocacy of CPF-related issues” despite knowing this was false.
[82] These submissions were made with specific regard to the 26 May Article and the Video respectively, but could fairly be made in respect of the Subsequent Publications as a whole and I address this accordingly. I think it is fair to say that the Subsequent Publications did cast the plaintiff in a highly unflattering light, to say the least. They appeared to suggest that the plaintiff was using the present suit not just to vindicate his reputation but to quell political dissent, or even to prevent investigation into the mismanagement (dishonest or otherwise) of the CPF monies. During cross-examination, the defendant appeared to suggest that a distinction ought to be drawn, in relation to what he had said in the Subsequent Publications, between the government and the plaintiff. That is, they should be read to mean that it was the government that had such improper motives. There is little merit to this argument – it is clear from the Subsequent Publications that the defendant himself drew little distinction between the two, often alternating between them within the same paragraph and the same narrative. In any case, as his continued acts of publication showed, there was no indication that he had truly believed that he was prevented from writing about the CPF. This was not denied by the defendant during his cross-examination:
[83] This being the case, quite aside from the defamatory imputation that the plaintiff had criminally misappropriated monies from the CPF, it could well be argued that the defendant had compounded the defamation by alleging that the present suit was brought for improper motives. Indeed, the emails sent by the defendant to members of the media appeared to be of the same nature, with the defendant stating in the First Email that “[t]he reason why the government wants to use the law to silence me is because I had exposed the truth about our retirement funds, which has exposed them of their deceit”, and stating in the Second Email that “[i]t is clear that [the plaintiff] is trying to eliminate the evidence of the corruption from my blog”. What Mr Singh would have me do, in essence, is to find that a second statement that is potentially defamatory in itself is aggravating of a first defamatory statement for which damages are being assessed.
[84] It is not entirely clear as to the nexus the defendant’s subsequent conduct (be it the publication of a subsequent defamatory article having a different defamatory meaning or otherwise) must have to the original defamatory statement. In other words, must the subsequent conduct aggravate the injury arising from the defamation for which the defendant has been sued in order for it to constitute an aggravating factor? The position in England, as set out in Collins Stewart Ltd v The Financial Times Ltd [2006] EMLR 5 (“Collins”) at [24] to [27], appears to be that it must:
[85] As was the case in Collins, it was entirely open for the plaintiff to have sued the defendant on the basis of allegations that the plaintiff had brought the suit for the improper motives which I highlighted. This does not in any way reflect any view on my part as to the merits of such a claim. Indeed, it is difficult for the court to form a view without a proper consideration of all relevant matters including any defences that might be available to the defendant. Putting aside the difficulties that arise in the quantification of damages in the absence of the consideration of such factors, my discomfort also lies in providing what could be essentially a backdoor admission for an unproven tort in the assessment of damages – I have not heard the parties on whether the Subsequent Publications really did convey such a defamatory imputation and whether the defendant would be able to avail himself of any defences.
[86] Notwithstanding its appeal, it appears that the narrow approach as set out in Collins is inconsistent with that taken in LKY v Jeyaretnam (HC), at least to the extent that the casting of aspersions over a plaintiff’s motives in the defamation action in question constitutes an aggravating factor . In LKY v Jeyaretnam (HC), Chua J held at [70] that the defendant’s approval of the name of a fund was aggravating as it impugned the plaintiff’s motives in bringing the action. This was upheld by the Court of Appeal in Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1979–1980] SLR(R) 255 (“Jeyaretnam v LKY (CA)”) at [17]. In the present case, I am satisfied that the Subsequent Publications did similarly convey the meaning that was found to be aggravating in Jeyaretnam v LKY (CA), ie, the present suit was commenced as “an attack on democracy” rather than to vindicate the plaintiff’s reputation. I am therefore constrained to find, on the authority of Jeyaretnam v LKY (CA), that the Subsequent Publications are aggravating.
The defendant’s conduct in the present proceedings
[87] Mr Singh argues that the defendant’s conduct in the present proceedings was aggravating of the damages to be awarded to the plaintiff. This, he says, is because the defendant had disputed issues that were previously uncontended and had “carefully designed” his cross-examination of the plaintiff to “aggravate and cause further hurt to the [p]laintiff’s reputation”. Mr Singh refers me to GCT v CSJ at [54], which he says is an example of a court having regard to a defendant trying to go back on what was earlier admitted to be common ground between parties in assessing aggravated damages.
[88] In my view, GCT v CSJ does not assist the plaintiff’s case in the broad manner as argued by Mr Singh. In GCT v CSJ, the court took into account the defendant’s subsequent conduct in denying that he had uttered the defamatory statements in question and his plea of justification in his defence as being relevant to the assessment of damages. But that was because it cast doubt over the sincerity of the defendant’s apology. The nature of the defendant’s resilements pointed out by Mr Singh, which relate to the extent of the publication and republication of the Defamatory Material, do not qualify his apology in that manner. It must also be borne in mind that the defendant was not legally represented in the hearing for the assessment of damages; some leeway must therefore be given for any infractions, if they be such.
[89] With this in mind, I turn to Mr Singh’s submission that the defendant had, in a manner akin to the defendants in LHL v SDP, exploited the opportunity to cross-examine the plaintiff for improper purposes. In LHL v SDP at [129]–[131], Belinda Ang Saw Ean J held as follows:
[90] The question, however, is the extent to which the irrelevance of cross-examination can be taken as aggravating. Goh Chok Tong v Jeyaretnam Joshua Benjamin [1997] 3 SLR(R) 46 at [195] suggests that the conduct in trial must reinforce the defamation to warrant aggravated damages:
[91] While the High Court judge there was found on appeal to have erred in his assessment of damages, this aspect of his findings was not overruled. Nevertheless, the approach taken by the High Court judge (which was upheld by the Court of Appeal) appeared to be less restricted than the paragraph above suggests. At [199] of that judgment, the High Court judge held that a sufficient nexus to the defamatory words could be formed where the cross-examination on irrelevant matters causes further harm to the plaintiff:
[92] In the present proceedings, there were instances that appeared to show that the defendant had used the hearings as an opportunity for an “open dialogue” as to the purported lack of transparency in the administration of the CPF monies (as he had sought in the 23 May Articles) and for scoring political points rather than the conduct of his case. However, these were largely isolated incidents. Much of the irrelevance in cross-examination was attributable to his eagerness to put forward his case, which, as I understood it, involved the use of objective evidence to demonstrate that it was evident from the information in the Article that he could not have been acting in malice – an approach which often appeared to be at odds with his acceptance of the defamatory import of the Article. He would also occasionally embark on points that were best left for submission and had to be reined in, but that is not uncommon of litigants who appear without the benefit of counsel. The tangents on which the defendant had gone off did not denigrate the plaintiff save for his revisiting of the Defamatory Material. But I accept that this was an attempt to show his purported lack of malice. However I find the defendant’s comments that the plaintiff was “disproportionate in using the law against his citizen which he has a duty to protect” to be aggravating. Considered in its entirety, I do not find that the defendant’s conduct in the trial to be objectionable in view of the fact that he had to conduct the trial by himself and had to respond to any point that was raised with little time to consider it, a feat that, I might add, many trained lawyers find intimidating. His conduct was certainly nothing approaching that of the defendants in the cases cited to me.
The chilling effect on freedom of expression
[93] In both his opening statement and closing statement, the defendant stressed repeatedly the chilling effect that a large award of damages would have on free speech in Singapore while making numerous references to the plaintiff’s position as a holder of public office. Annexed to his opening statement, and presented as part of his submissions, were a “legal opinion” by the International Commission of Jurists (“the IC Jurists”), an international non-government organisation whose primary focus appears to be human rights; and an amicus brief authored by the Center for International Law (“the CIL”), which describes itself as “a Philippine registered non-governmental organization dedicated to the promotion of free expression in the Asian region”. As I understand it, the defendant’s argument is that lower damages ought to be awarded against him because of the plaintiff’s status as the head of government.
[94] As Mr Singh points out, these arguments are not novel and have been canvassed at length by our courts. In Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 (“Tang v LKY”) at [113]–[119], the Court of Appeal held:
[95] Tang v LKY continues to be good law in Singapore (save possibly for one aspect which I discuss below), and the holding of the Court of Appeal as I have reproduced above is sufficient to dispose of the defendant’s arguments in this regard. I would nevertheless like to voice my opinions on some of the points raised by the defendant as well as the submissions of the IC Jurists and CIL, which do not appear to pay sufficient heed to the nature of the allegations or the confines of my decision in LHL v Roy Ngerng.
The argument from truth
[96] Singaporeans enjoy a constitutional right to freedom of speech that is enshrined in Art 14(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). This provides that “every citizen of Singapore has the right to freedom of speech and expression”. But this is not an absolute right; Art 14(2)(a) of the Constitution allows Parliament to impose “such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence”. Thus Parliament is constrained in that any law derogating from this right must be for the limited purposes prescribed.
[97] There are different philosophical justifications for the right to free speech. Three primary arguments can be identified: the argument from truth, the argument from democracy, and the argument from human dignity (see, eg, Dario Milo, Defamation and Freedom of Speech (Oxford University Press, 2008) (“Freedom of Speech”) at pp 55–79; Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) (“Singapore Constitutional Law”) at paras 14.006–14.020). No one theory prevails over the others. Nevertheless, it has been observed that “aspects of defamation law predominantly reflect the first two theories, and defamation law betrays a bias for the argument from democracy”: see Freedom of Speech at p 55.
[98] The classic exposition of the argument from truth, as encapsulated in the works of the theorists John Milton and John Stuart Mill, says that opinions, both true and false, should be protected so as not to deprive society of “the opportunity of exchanging error for truth” and a “clearer perception and livelier impression of truth”: see John Stuart Mill, “Of the Liberty of Thought and Discussion” in On Liberty (1869) ch 2 <http://www.bartleby.com/130/2.html> (accessed 8 October 2015)). This is premised on an assumption that the absolute truth will eventually emerge. In more recent times, the argument from truth has been conceptualised in an alternative manner, which considers truth to be relative. What is “true” is simply what emerges from open discussion and argument to be accurate and/or rational: see Singapore Constitutional Law at para 14.011. This is expressed in Holmes J’s powerful and widely-cited dissent in Abrams v United States 250 US 616 (1919) at 630, in which he states:
[99] The merits of the “competition of the market” rationale was discussed by the Court of Appeal in Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52 (“Review Publishing”) at [279]–[285], which questioned its applicability to false statements of fact (as opposed to opinions) – the core of the tort of defamation. Putting aside the observations of the Court of Appeal at [285] that “[o]ur political culture places a heavy emphasis on honesty and integrity in public discourse on matters of public interest, especially those matters which concern the governance of the country” (which I have addressed above in relation to the gravity of the defamation), there is force in the criticism that there is simply “no interest in being misinformed”: see Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127 (“Reynolds (HL)”) at 238. Essentially, the point that is made is that there is no benefit to a system in which false statements of fact are freely disseminated, relying only on the “competition of the market” to expose them. This perhaps lays bare the disjoint between theory and practice; as Freedom of Speech states at p 57, “history has taught us that falsehood frequently prevails over truth with deleterious societal consequences”. Through the competition of ideas, the best ones surface. But there is no benefit in permitting the free dissemination of false assertions of fact that destroy a person’s reputation.
The argument from democracy
[100] The defendant’s submissions do not make this explicit, but they appear to be based on the argument from democracy. He says that the award of “extravagant damages” sends the signal to other Singaporeans that they will have to “self-censor and keep [their] thoughts to [themselves]”. This chilling effect arises because of the unusual nature of civil law defamation actions: plaintiffs need only prove that the offending material is defamatory. There is no need to prove fault (defamation being a tort of strict liability), and the burden of proving the truth of the defamatory material lies with the defendants: see Andrew T Kenyon, “Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice” (2004) 28 MULR 406 at p 407. The result, the defendant says, is that the “ability of Singaporeans to be engaged and to improve Singapore” is compromised.
[101] I pause here to note that the defendant has not been prevented from speaking on the purported mismanagement of the CPF monies, nor has he been prevented from criticising the plaintiff or any other politician. Indeed, he has published almost 400 articles, many of which were critical of government policies. What the law of defamation prevents him from doing is to besmirch the “integrity, honesty, honour, and such other qualities that make up the reputation of a person”: (per Peter Lim at [13]) unless he is able to prove the truth of his allegations or can rely on the other defences of fair comment, privilege, or qualified privilege. In fact, as the defendant’s publications subsequent to the Article show, he had in fact continued to speak up on matters relating to the CPF even after he had apologised for the Article.
[102] Broadly understood, the defendant’s argument is that the process of democracy requires the unfettered exchange of ideas between individuals, an exchange that would be constrained where these views and opinions are given under the threat of sanction (monetary or otherwise). This is entirely consonant with the argument from democracy as elaborated on in Singapore Constitutional Law at para 14.017:
[103] The argument from democracy is epitomised by the Australian approach to the law of defamation. In Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (“Lange v ABC”), the High Court of Australia distilled from the system of representative government provided under the Australian Constitution a freedom of political communication. In a joint decision by all members of the court, it held at 115–116:
[104] Similarly, judicial pronouncements from England indicate that their courts have recognised the argument from democracy as justification for freedom of expression. In the seminal case of Reynolds (HL) at 200, which developed what is now referred to as the Reynolds privilege, Lord Nicholls of Birkenhead said:

The judgment continues past this page. Read the rest at eLitigation.

Lee Hsien Loong v Roy Ngerng Yi Ling

Laws this judgment relies on

Grounds of decision

Introduction

The background facts

The Article

The plaintiff’s letter of demand

The defendant’s subsequent publications

The defendant’s apology and offer of damages

The subsequent acts of the defendant

The quantification of damages for defamation

The nature and gravity of the defamation and the natural indignation of the court

The position and standing of the plaintiff and the defendant

The mode and extent of the publication

The defendant’s apology

The conduct of the defendant and his purported malice

The publication of a patently false allegation

Increasing the reach of the Defamatory Material

The defendant’s post-apology conduct

The defendant’s conduct in the present proceedings

The chilling effect on freedom of expression

The argument from truth

The argument from democracy