Piong Michelle Lucia v Yuk Ming Cheung and others

Quentin Loh JC:

[1] The Plaintiff, Vice President, Finance of Pan Sino International Holdings Ltd (“Pan Sino”), a Cayman Island Corporation listed on the Hong Kong Stock Exchange, (“HKSE”), sued the Defendants for defamation. The 1 Defendant was an auditor sent by the 2 Defendant to audit the accounts of Pan Sino. The 2 Defendant was a company incorporated and based in Hong Kong and were appointed by Pan Sino to be their auditor and to audit its annual accounts. The 3 Defendant was a company incorporated in Hong Kong under the control of or closely associated to the 1 and 2 Defendants and provided corporate secretarial services to clients of the 1 and 2 Defendants. These facts appeared from the Statement of Claim and the Plaintiff’s Affidavit affirmed on 25 August 2009.

[2] The Plaintiff obtained leave under O 11 r 1(c), (f), (p) and (q) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to serve the Writ on the Defendants in Hong Kong. Various applications were made. The appeals before me concerned two applications:

AR Ang Ching Ping heard these applications on 26 January 2010 and granted the stay, holding that the Defendants had discharged their burden in showing that Hong Kong was a distinctly more appropriate forum, and that there were no special circumstances requiring the trial take place in Singapore. She dismissed the Plaintiff’s application for judgment. Costs were also awarded against the Plaintiff. The Plaintiff appealed against those decisions. After hearing counsel, I dismissed the appeal with costs on 4 March 2010. The Plaintiff wrote in for further argument, I acceded to the request and after hearing further argument, I saw no reason to change my mind. The Plaintiff appealed against my decision on 31 March 2010.

[3] The Writ of Summons, endorsed with a Statement of Claim was filed on 29 July 2009. In the Statement of Claim, the Plaintiff alleged the following defamatory acts:

The Plaintiff also alleged that she was the CEO and substantial shareholder of Hesley Cocoa, which was intended for public listing on the Singapore Stock Exchange and that she was widely known as the founder and key person behind Hesley Cocoa; she had been involved in businesses in Singapore, Indonesia and Hong Kong for many years. The Plaintiff alleged aggravating factors in support of her claim for damages.

[4] Numerous affidavits were filed by the parties and further facts emerged from these affidavits. The 1 Defendant filed affidavits on behalf of all the Defendants. The subparagraphs below set out some of the facts alleged in the 1 Defendant’s Affidavit of 16 October 2009.

[5] From the affidavits filed, there was obviously going to be substantial dispute on the facts when the matter went to trial. However it was fairly clear what the issues were likely to be in the defamation claim.

[6] The principles applied in deciding the appeal were well settled. There was a considerable body of Singapore case law covering the area. There is little to be gained by repeating them here.

[7] Both counsel accepted, quite rightly, that the principles in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) were to be applied here. Those principles were well known and well set out in Singapore Civil Procedure 2007 (Sweet & Maxwell, 2007) at para 11/1/9 and Jeffrey Pinsler’s Singapore Court Practice 2009 (LexisNexis: 2009) at pp 145 – 148. From these texts, it was settled law to consider the alleged facts and issues in two stages with the latter stage broken down further into two:

Yet when this matter was argued before AR Ang she asked counsel for the Plaintiff, Ms Tan:

Despite her claims of having roots here, Singapore being her home and being of substantial means, the Plaintiff lived in rented premises (see para12(a), Plaintiff’s Affidavit filed on 23 November 2009). I was therefore left with a question mark in my mind where the Plaintiff resided. The fact that she still had her permanent residency in Singapore did not necessarily mean she spent most of her time here. On her own evidence and her pleaded case her business interests were in Indonesia, Singapore and Hong Kong and her business reputation had been seriously injured in Hong Kong, Indonesia, Germany and Singapore.

[9] The Plaintiff contended that the libels were published in Singapore as the three emails at [3(a)-(c)] above were sent to LKS and his email account was with Starhub. I pointed out that it was quite possible, if Mr Lau was in Indonesia or outside Singapore at that time, he could have accessed his email account outside Singapore, in which case the publication would have been outside Singapore. Ms Tan accepted that possibility but said that LKS lived in Singapore. LKS appeared to be a Singapore citizen as he owned landed property of 346.7 square metres at 43 Jalan Anggerek, Singapore. In an affidavit filed on 24 November 2009, Rudi Zulfian, the Chief Executive Director of Pan Sino, said LKS was the Chairman of Pan Sino. I assume that LKS therefore opened and read his emails in Singapore.

[10] The Plaintiff then contended that her business reputation had been seriously harmed in Singapore. The Plaintiff relied on Berezovsky v Michaels [2000] 1 WLR 1004 where a Russian businessman, who frequently visited England because of business and because of his family who were staying there, sued the defendant publisher, who was in New York, over the publication of an article on the plaintiff alleging he was a prominent Russian businessman who also held a senior post in the Russian government, but was in fact a leader of organised crime and corruption in Russia. The article also named another plaintiff, another Russian businessman, as one of the former’s criminal associates. Approximately 785,000 copies of that publication were sold in the USA and Canada, 19,000 copies in England and Wales and about 13 in Russia. On an application to dismiss or stay the actions, the High Court held that England was not the most appropriate jurisdiction for the trial of the action and stayed the same. On appeal, new evidence was admitted to show that the article was known to executives of financial institutions and it had deterred them from entering into or continuing London-based negotiations with companies with which the plaintiffs were associated. The Court of Appeal allowed the appeal and lifted the stay, holding that England was prima facie the appropriate forum for the trial of any substantial complaint arising out of the English circulation of a foreign publication, that the plaintiffs connections with the USA were slight and that a trial in Russia, though the place of their strongest connection, would nevertheless be unsuitable. England was therefore the appropriate jurisdiction. The House of Lords agreed holding that the publication in England of an internationally disseminated libel constituted a separate tort so as to permit the bringing of an action in England in respect of the publication in England; the court had to give regard to the principle that the jurisdiction in which a tort was committed was prima facie the natural forum for the dispute. The plaintiffs had significant connections with, and reputations to protect in, England and accordingly the trial of the actions would proceed in England.

[11] The Plaintiff also relied on Bata v Bata [1948] WN 366, (1948) 92 Sol Jo 574 where the court accepted that the material part of the cause of action in libel was not the writing but the publication, that being the very essence of actionable defamation. There the defendant wrote a circular letter in Zurich libelling the plaintiff, who was chairman of a company in England, but who personally lived in Ontario, Canada. That circular letter was addressed to the deputy manager and managing director of the company in England. The English court therefore had jurisdiction to hear the case as the libels were published to persons living in England.

[12] Ms Tan submitted, inter alia, that Singapore was the natural forum because the Plaintiff’s reputation had been injured in Singapore. She submitted that the Plaintiff’s reputation had suffered badly by the libel. In her submission she went so far as to say that the Singapore cocoa factory had to be closed down as a result of the libels thereby causing the Plaintiff severe financial loss. With respect, I do not find any such evidence on the material before me. Paragraph 7 of the Plaintiff’s Affidavit filed on 24 November 2009 stated:

On perusal, exhibit “MLP-2” appeared to be some coloured brochure describing Hesley Cocoa as a wholly owned subsidiary of Pan Sino and with a picture of some building or buildings in the lower one third of the page. It did not refer at all to JTC let alone withdrawal of its support. In Rudi Zulfian’s Affidavit of 23 December 2009, he echoed the above:

[13] Nowhere in the Statement of Claim does the Plaintiff say how:

came to the knowledge of the JTC. In fact, a very material fact like the withdrawal of the JTC’s support and damages flowing from that withdrawal were not mentioned at all as damages suffered as a result of the alleged libels in the Statement of Claim.

[14] There was also no evidence or explanation as to why, after the Plaintiff or Hesley Cocoa or Pan Sino had put in S$11 million into the factory in Singapore and after the factory was already constructed, the JTC would withdraw the support of their subsidies just because of the alleged libels set out in the Statement of Claim. The exhibit “RZ-7” in Rudi Zulfian’s Affidavit showed a JTC letter dated 13 September 2006 (referring to the JTC’s offer letter dated 3 March 2006, which was accepted on 2 May 2006), which waived the annual rent from 7 June 2006 to 28 February 2007, and stated that the previous payment of S$68,537.54 would be for the period 1 to 31 March 2007. There was nothing about a subsidy or a withdrawal of the same. The second exhibit, “RZ-8” was a Channel News Asia Newsflash of 25 September 2006 of 1657 hours, stating inter alia, that Pan Sino was investing US$250 million in a cocoa processing plant in Singapore, and that Pan Sino would pump in US$130 million in the first phase. There was a statement at the end that “The group plans to finance its Singapore operations from listing proceeds derived out of Hong Kong.” There were two other newspaper articles which did not add much except that Pan Sino, listed in Hong Kong, was the third largest cocoa trader in Indonesia and the factory in Jurong Industrial Estate would be built in two phase – the first phase would be completed “by the end of next year” which by the date of the newspaper report, ie, 26 September 2006, meant December 2007. With these large figures being given to the press, it was difficult to see how (as there was no explanation or documentation) because of the withdrawal of a JTC subsidy, the project was no longer feasible or floundered.

[15] It was clear from the affidavits filed that the Defendants would run defences like justification and/or qualified privilege. It was also clear the Plaintiff would allege malice, to defeat qualified privilege, and that the matters alleged were not true.

[16] From the authorities, the writing of the libel was not the important factor in deciding where the tort was committed. Its publication determined the place where the tort was committed. Giving the Plaintiff the benefit, 3 of the libels by email to LKS were published in Singapore. But the letters to Mr Liu of Platinum Securities Ltd and to Tricor were published in Hong Kong. The letter to GWB was published in Germany. The letter to Portcullis was published in the BVI and probably in Singapore when it was sent to Mr Mohan Abraham.

[17] Pan Sino was listed in Hong Kong and was in liquidation. All its papers would be with the liquidator in Hong Kong. Getting any of those papers brought to Singapore was highly unlikely. Whether the Defendants acted properly as auditors or not was something which would involve the practice of auditors in Hong Kong as well as the professional body in Hong Kong. This would include issues of whether they were over zealous, and whether they acted in accordance with accepted practice of auditors in Hong Kong. These witnesses would be in Hong Kong. The 1 Defendant deposed that there were earlier qualified or adverse auditor’s reports before the Defendants were appointed as auditors. Rudi Zulfian denied this. I noted that none of these earlier auditor’s reports were exhibited in his two affidavits. The Defendants said they would call the previous auditors as witnesses to prove what they said was true. They too were in Hong Kong. Mr Liu and Platinum Securities Ltd were in Hong Kong, as was Tricor, the share registrar. Complaints had been allegedly lodged with the Securities and Futures Commission in Hong Kong, complaints has been lodged with the Hong Kong Police over the theft of shares. The relevant documentary evidence lay in Hong Kong and it was likely that material and relevant documents were with the liquidator and the authorities in Hong Kong. The material witnesses were in Hong Kong and could be compelled to attend by subpoena. There was no suggestion that the law on defamation was significantly different from Singapore or that procedurally the Plaintiff would suffer any particular or peculiar disadvantages there as a result of a different legal system.

[18] As noted above, the Plaintiff had not shown how any of the documents sent to GWB, Mr Liu of Platinum Securities Ltd, Tricor or their contents had been made know generally to people in Singapore. The only one in Singapore was LKS. He was the chairman of Pan Sino and the Plaintiff’s landlord and colleague and I cannot see him broadcasting to the JTC or all and sundry the contents of the 3 emails he received, a fortiori, if he is more than just her landlord.