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Grounds publishedDecided 7 Oct 2009
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Court of Appeal

Review Publishing Co Ltd and Another v Lee Hsien Loong and Another Appeal

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[2009] SGCA 46Case no. CA 163/2008, 164/2008

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  1. Chan Sek Keong CJ (delivering the judgment of the court):

  2. Introduction

  3. [1] The present two appeals before us, Civil Appeal No 163 of 2008 (“CA 163”) and Civil Appeal No 164 of 2008 (“CA 164”), are against the decision of the High Court judge (“the Judge”) in summary judgment applications filed in two separate defamation suits (see Lee Hsien Loong v Review Publishing Co Ltd [2009] 1 SLR 177 (“the Judgment”)).

  4. [2] CA 163 arises from Suit No 539 of 2006 (“Suit 539”). The plaintiff in that action, who is the respondent in CA 163, is Mr Lee Hsien Loong (“LHL”), the Prime Minister of Singapore. CA 164 stems from Suit No 540 of 2006 (“Suit 540”). The plaintiff in that action, who is the respondent in CA 164, is Mr Lee Kuan Yew (“LKY”), the Minister Mentor in the Prime Minister’s Office and a senior Cabinet Minister. The defendants in Suit 539 and Suit 540 (which suits will be referred to collectively as “the Defamation Suits”) are the same, namely, Review Publishing Co Ltd (“RP”), the publisher of Far Eastern Economic Review (“FEER”), and Mr Hugo Restall (“HR”), the editor of FEER as well as the author of the article which is the subject matter of the Defamation Suits (“the Article”). The Article, titled “Singapore’s ‘Martyr,’ Chee Soon Juan”, was published in the July/August 2006 issue (Vol 169 No 6) of FEER (“FEER (Vol 169 No 6)”) at pp 24–27.

  5. [3] On 23 September 2008, the Judge granted summary judgment in favour of LHL and LKY (collectively, “the Respondents”) on the grounds that the natural and ordinary meaning of the words in the Article which were alleged to be defamatory (“the Disputed Words”) was the defamatory meaning pleaded and contended for by the Respondents, and that RP and HR (collectively, “the Appellants”) had no defence to the Defamation Suits.

  6. The background

  7. The Article

  8. [4] The Appellants published the Article in FEER (Vol 169 No 6) (at pp 24–27) after an interview with Dr Chee Soon Juan (“CSJ”), the secretary-general of the Singapore Democratic Party (“SDP”). We set out below the Article in its entirety (with paragraph numbers added in square brackets for ease of reference):

  9. [5] The Disputed Words (as pleaded by the Respondents) are set out in paras 9–13 of the Article (see the italicised part of the quotation in the preceding paragraph). The question “[h]ow many libel suits have Singapore’s great and good wrongly won, covering up real misdeeds?”, which is essentially a reiteration of the corresponding question in para 13 of the Article, is also given especial prominence by being reproduced in enlarged font in a box printed at the top of the last page of the Article (ie, p 27 of FEER (Vol 169 No 6)) so as to catch the eye of the reader.

  10. The proceedings in the High Court

  11. [6] On 22 August 2006, the Respondents commenced the Defamation Suits against the Appellants. In respect of LKY, it was pleaded that:

  12. [7] In respect of LHL, it was originally pleaded in his statement of claim (“SOC”) that:

  13. We shall hereafter refer to the original pleaded meaning of the Disputed Words in relation to LHL (as set out above) as “the Original Meaning”.

  14. [8] In addition to relying on the natural and ordinary meaning of the Disputed Words, the Respondents also relied on their innuendo meaning (ie, the meaning which the Disputed Words bore by way of innuendo).

  15. [9] On 30 August 2007, the Respondents, via Summons No 3833 of 2007 where Suit 540 was concerned and Summons No 3834 of 2007 where Suit 539 was concerned, applied for summary judgment for the following reliefs (see the Judgment at [2]):

  16. It should be noted that the Respondents’ applications for summary judgment (“the Summary Judgment Applications”) were based on the natural and ordinary meaning of the Disputed Words, and not on their innuendo meaning. It should also be noted that the Respondents sought, as an alternative to summary judgment, the striking out of substantial portions of the Appellants’ pleadings (specifically, the Appellants’ first amended defence in Suit 539 and the Appellants’ first amended defence in Suit 540).

  17. [10] The Summary Judgment Applications were heard by the Judge on 15 and 16 May 2008. The Appellants’ main arguments before the Judge against the grant of summary judgment can be summarised as follows:

  18. (a) the Disputed Words did not refer to the Respondents;

  19. (b) the natural and ordinary meaning of the Disputed Words was not the defamatory meaning contended for by the Respondents; and

  20. (c) the Appellants had substantive defences, specifically, the “substantive defences of justification …, fair comment …, qualified privilege …, public interest privilege … and neutral reportage” [emphasis in original omitted].

  21. [11] At the end of the hearing, the Judge reserved judgment. Subsequently, on 25 June 2008, the Judge directed the parties to address the court on the following two issues:

  22. It is reasonable to assume that the Judge, in posing these two questions to the parties, was of the view that, in relation to LHL, the Disputed Words were capable of bearing the same meaning as that pleaded by LKY and not just the Original Meaning, which was the meaning that LHL relied on in his application for summary judgment.

  23. [12] On 18 July 2008, the Appellants and the Respondents filed their respective written supplemental submissions on the above two issues, and, on 25 July 2008, they filed their respective supplemental reply submissions.

  24. [13] Meanwhile, on 23 July 2008, LHL applied via Summons No 3239 of 2008 for leave to amend his SOC so as to plead an alternative meaning of the Disputed Words (“the New Meaning”). Essentially, LHL sought to include in his SOC the same meaning of the Disputed Words as that pleaded by LKY, as follows:

  25. The New Meaning is set out in the italicised part of the above quotation.

  26. [14] On 18 August 2008, the Judge granted leave for LHL to amend his SOC to plead the New Meaning. LHL’s amended SOC was filed on the same day. The Judge also granted the Appellants leave to make consequential amendments to their first amended defence in Suit 539 (if any) by 5.00pm on 15 September 2008. On 15 September 2008, the Appellants filed their second amended defence for Suit 539. As will be seen later, this second amended defence did not address or plead justification in respect of the New Meaning.

  27. The decision below

  28. Reference to the Respondents and the meaning of the Disputed Words

  29. [16] The Judge, in a carefully-reasoned judgment spanning 106 pages, made the following findings in relation to whether the Disputed Words referred to the Respondents and whether they were defamatory of the Respondents in their natural and ordinary meaning:

  30. (a) The following phrases in the Disputed Words referred to the Respondents (see the Judgment at [36]–[38] and [43]–[45]):

  31. (i) “the government” in para 11 of the Article;

  32. (ii) “Singaporean officials” in para 13 of the Article; and

  33. (iii) “Singapore’s great and good” in that same paragraph (ie, para 13 of the Article).

  34. Further, as conceded by the Appellants’ counsel, the expression “Singaporean officials” in para 13 of the Article was referable to LKY (see the Judgment at [31]).

  35. (b) In relation to LKY, the Disputed Words bore the defamatory meaning pleaded by LKY, viz, that he, like Mr T T Durai (“Durai”), the former chief executive of the National Kidney Foundation (“NKF”), was “corrupt … and … [had] been using libel actions to suppress those who would question [sic] to avoid exposure of his corruption” (see the Judgment at [88]).

  36. (c) In relation to LHL, the Disputed Words did not bear the Original Meaning set out at [7] above, which was pleaded as the alternative meaning after LHL amended his SOC (see the Judgment at [99]). However, the Disputed Words did bear the New Meaning, which was the same as the meaning pleaded by LKY (see the Judgment at [100]).

  37. [17] The Judge gave the following main reasons for finding that the Disputed Words bore the meaning asserted by the Respondents:

  38. (a) The ordinary reasonable person would know that the Respondents had at various times successfully sued for defamation and would also be aware generally of the scandal surrounding the NKF and Durai (“the NKF Saga”) (see the Judgment at [66]). The Appellants themselves had also admitted that the following matters were within the general knowledge of the public (see the Judgment at [64]–[65]):

  39. (i) the NKF Saga;

  40. (ii) the protest staged by certain members of the SDP on 11 August 2005 (“the SDP protest”); and

  41. (iii) the various defamation suits commenced by the Respondents, including Suit No 261 of 2006 and Suit No 262 of 2006 (“the SDP proceedings”), which were proceedings by the Respondents against the SDP and eight of its members in respect of (inter alia) two articles published in or around February 2006 in the SDP’s newsletter, The New Democrat Issue 1 (“the New Democrat articles”).

  42. (The details of the NKF Saga, the SDP protest and the SDP proceedings are set out at [36]–[37] below.)

  43. (b) The Article contained more than just a passing reference to the NKF and Durai (see the Judgment at [80]). It detailed how the NKF Saga erupted and drew a comparison (at para 11) between “the failure of the Government to supervise [the] NKF and the fact that the Government [controlled] huge pools of money in CPF [the Central Provident Fund] and GIC [the Government of Singapore Investment Corporation Pte Ltd], both of which [were] said to be ‘highly nontransparent’” (see the Judgment at [84]).

  44. (c) The association which the Article made with the NKF and Durai was “more than a mere suggestion of extravagance or abuse of power or some sort of financial impropriety and … [instead] suggest[ed] corruption on the part of LKY” (see the Judgment at [85]). This was “defamation by implication by associating institutions which the Government, ie, LKY (and LHL) [ran], with [the] NKF and Durai” (ibid).

  45. (d) The suggestion made in paras 12 and 13 of the Article was similar to that made in the New Democrat articles, namely (see the Judgment at [86]):

  46. (e) Reading para 13 of the Article in view of the immediately preceding reference in para 12 to the NKF’s successful libel suit in 1998 and the manner in which the truth about Durai’s and the NKF’s practices subsequently came to light, the message to the ordinary reasonable person was that the Respondents, like Durai, had (as para 13 of the Article put it) “wrongly won” libel suits and had deliberately used such suits to cover up real misdeeds, ie, their corruption. Under such circumstances, the ordinary reasonable person would be left in no doubt that the imputation in the Article was that the Respondents were unfit for office (see the Judgment at [87] and [100]).

  47. [18] In the Judgment, the Judge also explained why he considered it appropriate to allow LHL to amend his SOC so as to plead the New Meaning (see the Judgment at [101]–[114]). The Judge was of the view that, unlike the application in Chun Thong Ping v Soh Kok Hong [2003] 3 SLR 204 (“Chun Thong Ping”), a decision relied on by the Appellants to object to the proposed amendment, LHL’s application for leave to amend his SOC was filed before any decision was made on the Summary Judgment Applications and the proposed amendment was not to add a new cause of action, but to attribute an additional meaning (ie, the New Meaning) to the Disputed Words (see the Judgment at [105]–[106]).

  48. [19] Although he allowed LHL to amend his SOC to plead the New Meaning (which, the Appellants contended, was a more defamatory meaning) as an alternative to the Original Meaning, the Judge proceeded to give his views on what the legal position would have been if no amendment had been made to LHL’s SOC. His views were as follows (see the Judgment at [118]–[144]):

  49. (a) The approach exemplified in Slim v Daily Telegraph Ltd [1968] 2 QB 157 (“Slim”), which was followed by this court in Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 2 SLR 310 (“JJB v LKY (1992)”) at 320–321, [24]–[25] as well as Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 3 SLR 337 (“Goh Chok Tong”) at [43] and [46], was that the court was entitled to find that the words alleged to be defamatory (“the offending words”) bore a less defamatory meaning than the meaning pleaded by the plaintiff, but was not entitled to find that those words bore a more defamatory meaning. In contrast, a more flexible approach was adopted in Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 (“Chakravarti”), where the Australian High Court held that the court was permitted to find a meaning which was more defamatory than the pleaded meaning (see the Judgment at [135]).

  50. (b) In determining the meaning of the offending words, the court should not be obliged to find a meaning within the perimeters of the pleadings and should not be precluded from finding a different and more defamatory meaning than that pleaded by the plaintiff (see the Judgment at [141]).

  51. (c) The consequence of the court’s determination of the meaning of the offending words was another matter. In this regard (ibid):

  52. (d) In the instant case, the New Meaning of the Disputed Words was not substantially different from the Original Meaning and would, in the first place, have been covered by LHL’s original pleading. Thus, even if LHL had not amended his SOC, summary judgment could still have been granted to LHL on the basis of the New Meaning (see the Judgment at [144]).

  53. The defences raised by the Appellants

  54. [20] After determining the natural and ordinary meaning of the Disputed Words, the Judge proceeded to consider the various defences raised by the Appellants. He eventually found that the Appellants had no viable defence that would justify granting them leave to defend. His findings may be summarised as follows:

  55. (a) In relation to the defence of justification, the Appellants only sought to justify their own version of the meaning of the Disputed Words and not the defamatory meaning contended for by the Respondents, which was also the meaning that the Disputed Words were found to bear. As such, “the defence of justification [fell] away” (see the Judgment at [145]).

  56. (b) The defence of fair comment was not applicable as those statements in paras 10–13 of the Article which were alleged by the Respondents to be comments (“the Relevant Statements”) were statements of fact instead; and, even if those statements were comments, they were not comments based on facts (see the Judgment at [152]). The fact that some of the allegations in the Relevant Statements had been couched as questions rather than statements was irrelevant (see the Judgment at [153]).

  57. (c) The Appellants could not rely on a derivative qualified privilege based on what we shall hereafter term the “right-of-reply privilege” of CSJ, ie, the right which CSJ had to reply to the Respondents’ attacks on his character. This was because the allegations pertaining to corruption in the Article exceeded the scope of CSJ’s right-of-reply privilege, which formed the basis of the derivative qualified privilege claimed by the Appellants (see the Judgment at [163]–[164]).

  58. (d) The privilege laid down by the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (“Reynolds (HL)”) – ie, “the Reynolds privilege” (examined at [186]–[235] below) – as well as the offshoot of this privilege (viz, the neutral reportage defence) were not part of the law of qualified privilege in Singapore. The position in Singapore on qualified privilege was, instead, that established by the Court of Appeal in Aaron v Cheong Yip Seng [1996] 1 SLR 623 (“Aaron”) (see the Judgment at [219]–[221]).

  59. (e) The Appellants’ argument on the Disputed Words’ lack of defamatory impact (ie, that, even if the Disputed Words were defamatory, they could not alter the Respondents’ reputation in Singapore) was erroneous and should be rejected. The law of defamation was not only concerned with the depreciation in the value of the plaintiff’s reputation, but also involved an “essential element of vindication” (see Tang Liang Hong v Lee Kuan Yew [1998] 1 SLR 97 at [111] (cited at [229] of the Judgment)). If the Appellants’ contention were valid (see the Judgment at [230]):

  60. Such a legal position, the Judge held, was unsupportable.

  61. [21] In respect of the conclusion set out at sub-para (d) of [20] above, it should be noted that the Judge arrived at that conclusion after reviewing the relevant cases from different common law jurisdictions. Apart from holding himself bound by higher authority (ie, Aaron) to reject the Reynolds privilege, the Judge made two observations relating to this defence. First, this defence was “influenced by” [emphasis added] (see the Judgment at [211]) Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”), but “that influence in itself [did] not necessarily mean that [Reynolds (HL)] should not apply in Singapore” (see the Judgment at [211]). Second, the neutral reportage defence was simply an extension of the Reynolds privilege (see the Judgment at [220]).

  62. [22] The Judge also made some additional observations on other related issues. He noted that s 12 of the Defamation Act (Cap 75, 1985 Rev Ed) (“the Defamation Act (1985 Rev Ed)”) “already provide[d] for qualified privilege for a newspaper [in Singapore]” (see the Judgment at [222]). He opined that whether the scope of such privilege should be extended was a matter for Parliament to decide, and the court should be slow to extend that privilege (see the Judgment at [226]). Lastly, the Judge added that the neutral reportage defence applied only “where the publication [did] not adopt the views of the maker of the statement” (see the Judgment at [227]). In the instant case, the Article conveyed the message that the views expressed therein, especially those at paras 10–13 (which, the Judge held, constituted the part “where the sting [was] carried” (see the Judgment at [227])), were those of HR and not of CSJ (ibid).

  63. The issues on appeal

  64. [23] Before us, the Appellants raised eight grounds of appeal as follows:

  65. (a) The Judge erred in taking into account inadmissible extrinsic evidence in ascertaining the meaning of the Disputed Words, and in effect determined the innuendo meaning rather than the natural and ordinary meaning of those words.

  66. (b) The Disputed Words did not allege that LKY was corrupt.

  67. (c) The Disputed Words did not allege that LHL was corrupt.

  68. (d) The Judge erred in allowing LHL to amend his SOC after the hearing of the Summary Judgment Applications was over and the parties had made their final submissions on those applications.

  69. (e) The Judge was wrong in deciding that the defence of justification did not apply in the present case, given especially that, after accepting the Respondents’ meaning of the Disputed Words, he failed to afford the Appellants an opportunity to amend their pleadings so as to justify the meaning found by the court. (It should be noted that the Appellants made this particular argument not only in relation to Suit 539 (where LHL amended his SOC to plead the New Meaning), but also in relation to Suit 540 (where LKY did not make any changes to the pleaded meaning of the Disputed Words).)

  70. (f) The Judge mischaracterised the Relevant Statements as statements of facts when they were actually comments, and thus erred in holding that the defence of fair comment was not sustainable.

  71. (g) The Judge was wrong in deciding that the defence of derivative qualified privilege based on CSJ’s right-of-reply privilege did not apply, and mistakenly thought that the allegations made against the Respondents in the Article were more serious than the Respondents’ allegations against CSJ.

  72. (h) The Judge erred in refusing to acknowledge that the Reynolds privilege and its offshoot, the neutral reportage defence, were part of the law of qualified privilege in Singapore and was wrong to exclude those defences. If, however, the Judge was right in holding that the Reynolds privilege and the neutral reportage defence did not form part of Singapore’s common law, the Appellants could still invoke what may be called the “traditional qualified privilege defence” in view of the special facts of this case.

  73. [24] The Respondents, on their part, contended that the Judge was entirely correct in law in his findings and reasoning. In addition, in respect of the meaning of the Disputed Words in relation to him, LHL stated that he “reserve[d] the right” to contend that the Original Meaning was “the true meaning of the [Disputed] Words” in the event that this court either disagreed with the Judge’s finding on the meaning of the Disputed Words or ruled that he (LHL) ought not to have been granted leave to amend his SOC.

  74. [25] We propose to deal with the Appellants’ grounds of appeal (and the respective arguments of the parties in relation thereto) in the order in which they have been set out at [23] above. As we are of the view that the second and third grounds of appeal (ie, grounds (b) and (c)) are connected with the first ground of appeal (ie, ground (a)), and as these three grounds are all essentially concerned with the issue of what the natural and ordinary meaning of the Disputed Words is, we shall consider them together.

  75. Grounds (a), (b) and (c): The meaning of the Disputed Words

  76. Overview

  77. [26] The Appellants’ argument vis-à-vis the meaning of the Disputed Words is that those words neither alleged nor meant that either LKY or LHL was corrupt, contrary to what the Respondents alleged and what the Judge found. Under the law of defamation, the offending words may be defamatory (broadly speaking) in two senses, namely (see Doris Chia & Rueben Mathiavaranam, Evans on Defamation in Singapore and Malaysia (LexisNexis, 3rd Ed, 2008) (“Evans on Defamation”) at p 12 as well as Goh Chok Tong ([19] supra) at [44]):

  78. (a) in their natural and ordinary meaning, which includes any meaning capable of being inferred from the offending words standing on their own in addition to their literal meaning; and

  79. (b) in their innuendo meaning, ie, in some other meaning (apart from the natural and ordinary meaning) which, although not defamatory from the viewpoint of the ordinary reasonable person, is nonetheless defamatory from the viewpoint of people with knowledge of the special meaning of the offending words or the relevant extrinsic facts.

  80. As mentioned earlier (at [9] above), the Respondents relied on only the natural and ordinary meaning of the Disputed Words in the Summary Judgment Applications.

  81. The applicable principles

  82. [27] The test for determining the natural and ordinary meaning of the offending words in a defamation action is well settled in England and, likewise, Singapore. Essentially, the court decides what meaning the words would convey to an ordinary reasonable person, not unduly suspicious or avid for scandal, using his general knowledge and common sense. It is irrelevant what meaning was intended by the maker or publisher of the statement (ie, the defendant) or what meaning was actually understood by the plaintiff. In Microsoft Corporation v SM Summit Holdings Ltd [1999] 4 SLR 529 (“Microsoft Corporation”), this court summarised the test as follows (at [53]):

  83. (In this regard, reference may also be made to Bank of China v Asiaweek Ltd [1991] SLR 486 at 492, [16]; JJB v LKY (1992) ([19] supra) at 318–319, [19]; Gatley on Libel and Slander (Patrick Milmo & W V H Rogers eds) (Sweet & Maxwell, 11th Ed, 2008) (“Gatley”) at para 3.16; and Evans on Defamation at pp 12–13.)

  84. [28] It is important to reiterate that the natural and ordinary meaning of the offending words is not confined to their literal or strict meaning, but includes inferences or implications that the ordinary reasonable person may draw from those words in the light of his general knowledge, common sense and experience (see Microsoft Corporation at [53]; see also Gatley at paras 3.16–3.17 and Evans on Defamation at p 14). In this regard, it is instructive to refer to Lord Reid’s comments in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 (“Rubber Improvement Ltd”) at 258 (which were endorsed by this court in Microsoft Corporation at [54] as well as in Goh Chok Tong at [20]), as follows:

  85. [29] Inferences or implications which the ordinary reasonable person may draw based on his general knowledge, common sense and experience are entirely permissible. It must be appreciated that such inferences or implications are not the same as inferences or implications based on extrinsic evidence, which evidence is not admissible as a matter of law in the construction of the natural and ordinary meaning of the offending words (see Microsoft Corporation at [53]). The following passage by Lord Morris of Borth-y-Gest sets out the distinction between these two types of infererences or implications clearly (see Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362 (“Jones”) at 1370–1371):

  86. [30] The characteristics of the ordinary reasonable person are also important. As pertinently noted by the Judge at [49] of the Judgment:

  87. This court (in Microsoft Corporation at [54] and Goh Chok Tong at [25]) adopted the characterisation of the hypothetical ordinary reasonable person set out by the English Court of Appeal (“the English CA”) in Skuse v Granada Television Limited [1996] EMLR 278 (“Skuse”) at 285, which was as follows:

  88. [31] The ordinary reasonable person has also been described in many other colourful ways. For instance, he has been said to be a person:

  89. (a) who is “fair-minded” (see Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71), “law-abiding” (see Lau Chee Kuan v Chow Soong Seong [1955] MLJ 21 at 22) and a “right-thinking [member] of society generally” (see Workers’ Party v Tay Boon Too [1972-1974] SLR 621 at 628, [52]);

  90. (b) who “does not live in an ivory tower and … is not inhibited by a knowledge of the rules of [documentary] construction” (see Rubber Improvement Ltd at 258); and

  91. (c) who can be assumed to possess “general knowledge and experience of worldly affairs” (ibid).

  92. Ultimately, all these descriptions seek to emphasise the point that the ordinary reasonable person is very much an average rational layperson, neither brilliant nor foolhardy, and not idiosyncratic in his behaviour or disposition. As stated by Lord Reid in Rubber Improvement Ltd at 259:

  93. The Appellants’ arguments on the meaning of the Disputed Words

  94. [32] The Appellants’ main arguments on the meaning of the Disputed Words may be summarised as follows:

  95. (a) In attributing to the ordinary reasonable person general knowledge of certain events (“the Relevant Events”) such as the NKF Saga, the SDP protest and the various defamation suits brought by the Respondents, including the SDP proceedings, the Judge took into account irrelevant extrinsic evidence, which was not admissible in determining the natural and ordinary meaning of the Disputed Words. Instead of imbuing the ordinary reasonable person with “general knowledge” [emphasis added in bold italics], which would not include knowledge of the Relevant Events, the Judge effectively imbued this hypothetical person with “specific knowledge” [emphasis added; underlining in original omitted] of these matters.

  96. (b) Even if all the Relevant Events were within the general knowledge of the ordinary reasonable person, bearing in mind that this hypothetical person was not avid for scandal, he would not have come to the conclusion that the Disputed Words meant that the Respondents were corrupt.

  97. (c) It was wrong of the Judge to take into account “masses of extrinsic evidence” in the form of newspaper clippings as well as the decisions of V K Rajah J in Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR 582 (“Chee Siok Chin”), Belinda Ang Saw Ean J in Lee Hsien Loong v Singapore Democratic Party [2007] 1 SLR 675 (“Lee Hsien Loong (HC)”) and this court in Lee Hsien Loong v Singapore Democratic Party [2008] 1 SLR 757 (“Lee Hsien Loong (CA)”) in determining the natural and ordinary meaning of the Disputed Words.

  98. (d) The Disputed Words (especially the words “Singaporean officials” and “Singapore’s great and good” in para 13 of the Article) did not refer to the Respondents and the Judge had relied on extrinsic evidence to find that they referred to the Respondents.

  99. (e) The Judge was wrong to rely on the Malaysian case of Hasnul bin Abdul Hadi v Bulat bin Mohamed [1978] 1 MLJ 75 (“Hasnul”) to find that the NKF and/or Durai had become symbolic of corruption and that any person mentioned in connection with either of them was similarly tainted, given especially that Hasnul was a case decided based on the innuendo meaning of the offending words. Although defamation by implication was possible, such implication must be derived from the offending words themselves and not from “extraneous” (as the Appellants put it) or extrinsic materials.

  100. Our decision on the Appellants’ arguments and the meaning of the Disputed Words

  101. [33] The Appellants’ first argument vis-à-vis the meaning of the Disputed Words (as set out at sub-para (a) of [32] above) relates to the general knowledge of the ordinary reasonable person, while the rest of the arguments pertain essentially to the approach taken by the Judge in determining the natural and ordinary meaning of the Disputed Words. Given the established test in defamation law for determining the natural and ordinary meaning of the offending words (see [27] above), the state of the ordinary reasonable person’s general knowledge plays a pivotal role in this respect. As such, we shall first address this issue.

  102. The state of the ordinary reasonable person’s general knowledge

  103. [34] The state of the general knowledge of the ordinary reasonable person will naturally be affected and shaped by what is common knowledge in the public domain and by significant (public) events which would reasonably be in the mind of the ordinary reasonable person.

  104. [35] The Judge found, on the evidence, that there was no dispute between the parties that the ordinary reasonable person would be aware of the following matters (see the Judgment at [59]):

  105. [36] It was the Respondents’ case both before the Judge and in the present appeals that the Relevant Events, all of which occurred before the Article was published, were matters in the public domain. The Relevant Events consisted mainly of the following:

  106. (a) the various defamation suits commenced over the years by the Respondents, in which they successfully obtained damages and/or apologies from the persons whom they sued;

  107. (b) the NKF Saga, which commenced with the trial on 11 July 2005 of what we shall hereafter term “the NKF libel suit”, ie, the libel action brought by the NKF and Durai against Singapore Press Holdings Ltd (that suit culminated in Durai withdrawing the action, subsequently being arrested by the Corrupt Practices Investigation Bureau (“CPIB”) and, following investigations carried out by the police and the Inland Revenue Authority of Singapore on the NKF’s former board of directors as well as an independent audit conducted by KPMG, charged under the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the current PCA”) (see the Judgment at [60]));

  108. (c) the SDP protest, which took place on 11 August 2005 outside CPF Building and which involved several members of the SDP, including CSJ and his sister, Chee Siok Chin (“CSC”) (see the Judgment at [62]); and

  109. (d) the SDP proceedings (see further [37] below).

  110. [38] The Judge accepted that all the Relevant Events were in the public domain and that the ordinary reasonable person “would have been aware generally [of them]” [emphasis added] (see the Judgment at [66]). In contrast, the Appellants’ position was that these events would not have been within the ordinary reasonable person’s general knowledge, and, being instead in the nature of extrinsic evidence, were inadmissible to prove the state of the ordinary reasonable person’s general knowledge. At para 16 of their written case for the present appeals, the Appellants argued:

  111. [39] The issue which we have to decide apropos the state of the ordinary reasonable person’s general knowledge is simply this: was it wrong in law for the Judge to regard knowledge of the Relevant Events as part and parcel of the general knowledge of the ordinary reasonable person?

  112. [40] We are of the view that the Judge was not wrong in taking the above view (viz, that the Relevant Events formed part of the ordinary reasonable person’s general knowledge). All these events (save for some of the defamation suits mentioned in sub-para (a) of [36] above) happened relatively shortly (ie, within about one year) before the publication of the Article. The NKF Saga was in the news, both offline and online, for months. The public apologies issued by six of the defendants in the SDP proceedings were also much publicised, having regard to the fact that those six defendants were members of the SDP. Their apologies were published in The Straits Times and Lianhe Zaobao on 3 May 2006, less than three months before the Article was published. Both of these newspapers have a very large readership in Singapore.

  113. [41] Indeed, the Relevant Events were all extensively reported and featured in the local press, as can be seen from the numerous media reports adduced by the Respondents. In fact, by the time the Article was published, most, if not all, of the Relevant Events had gained notoriety among the general public in Singapore because of the extensive coverage of and the intensive discussions about these events in the media (and on the Internet). The mass circulation of the daily newspapers published in Singapore in four languages entailed that the Relevant Events became common knowledge among the people living here. Specifically, in respect of the NKF Saga, there was huge public outrage after details of the benefits enjoyed by the NKF’s former management, especially Durai, were exposed at the trial of the NKF libel suit and reported in the local press. The NKF Saga was a very traumatic event for the hundreds, if not thousands, of ordinary Singaporeans who had made cash contributions to the NKF for its charitable work. They felt betrayed by Durai, and were outraged when the truth surfaced that they had been deceived into believing that the NKF was spending the bulk of its funds for the benefit of needy kidney patients. It was thus unsurprising that Rajah J noted in Chee Siok Chin ([32] supra) that (at [121]):

  114. [42] Here, we should remind ourselves that the finding or opinion of Rajah J in Chee Siok Chin on this issue of fact (ie, whether the NKF Saga was a matter of general knowledge) is not binding on the Judge, and the Judge did not make his finding based on the views expressed by Rajah J in Chee Siok Chin but, rather, based on all the materials placed before him. Given these materials, it would indeed be surreal if we were to conclude that the ordinary reasonable person had no general knowledge of all of the Relevant Events, especially the NKF Saga. In our view, this point is unarguable.

  115. [43] In this regard, the Respondents’ counsel reminded us that the Appellants, in opposing the Summary Judgment Applications, had proceeded on the mistaken basis that the Respondents’ case for summary judgment was based on the innuendo meaning of the Disputed Words when it was actually the natural and ordinary meaning of those words which the Respondents relied on. In so doing, the Respondents’ counsel submitted, the Appellants had in fact unconditionally admitted that the Relevant Events were indeed in the public domain and/or constituted public knowledge. This submission is borne out by the written submissions dated 8 May 2008 which the Appellants filed for the Summary Judgment Applications, where it was stated:

  116. [44] At para 19 of the same written submissions (ie, the Appellants’ written submissions dated 8 May 2008), the Appellants further made the following comments:

  117. [45] Counsel for the Respondents also reminded us that, when the Appellants realised that they should not have made the admissions outlined at [43]–[44] above, they applied unsuccessfully to withdraw those admissions on the ground that they had made a mistake in opposing a case which the Respondents had not put forward (see the Judgment at [64]–[65]). Before us, counsel for the Appellants merely reiterated the arguments which he had made to the Judge as to why the Relevant Events were extrinsic evidence and should not have been treated as being in the public domain, without reference to the Appellants’ own admissions in this regard. We should add that it would not have mattered one bit even if the Appellants had not made those admissions. In our view, the evidence that, by the time the Article was published, the Relevant Events had entered the public domain and were within the general knowledge of the ordinary reasonable person is so overwhelming that the Appellants’ attempt to argue to the contrary is merely forensic jousting for the sake of disputing every conceivable point.

  118. [46] For all of the above reasons, we are of the view that the Judge was fully entitled and correct to treat knowledge of the Relevant Events as part of the general knowledge of the ordinary reasonable person. Contrary to the Appellants’ contention, these events were definitely not extrinsic evidence. We turn now to examine, first, whether an ordinary reasonable person with general knowledge of these events would infer that the Disputed Words were referable to the Respondents and, second, what meaning those words would convey to him.

  119. Were the Disputed Words referable to the Respondents in the mind of the ordinary reasonable person?

  120. [47] One of the Appellants’ main arguments before us was that the Judge was wrong to find that the expressions “Singaporean officials” and “Singapore’s great and good” in para 13 of the Article were naturally, by themselves, referable to the Respondents, and that the Judge had made this finding only with the aid of extrinsic evidence.

  121. [48] It is trite law that, to succeed in an action for defamation, the plaintiff must prove not only that the defendant published the offending words, but that those words were published of the plaintiff (see Price Waterhouse Intrust Ltd v Wee Choo Keong [1994] 3 SLR 801 (“Price Waterhouse”) at 809, [17]; Knupffer v London Express Newspaper, Limited [1944] AC 116 (“Knupffer”) at 118–119; Lee Hsien Loong (HC) ([32] supra) at [18] and [30]; Gatley ([27] supra) at para 7.1; and Evans on Defamation ([26] supra) at p 45).

  122. [49] The test is an objective one, and it is simply whether the ordinary reasonable person who, at the material time, was aware of the relevant circumstances or special facts (if any) would reasonably understand the plaintiff to be referred to by the offending words (see Price Waterhouse at 809, [18] and 811, [24] as well as Knupffer at 119). In A Balakrishnan v Nirumalan K Pillay [1999] 3 SLR 22 (“A Balakrishnan”), this court held that, having regard to the article which contained the offending words and the publicity given to the plaintiffs as members of an organising committee that had organised an event called “Tamil Language Week” (which was the subject matter of that article), a reasonable person who was acquainted with the plaintiffs, on reading the article, would come to the conclusion that the offending words referred to the plaintiffs even though the plaintiffs were not expressly identified in the article. It follows from the decision in A Balakrishnan that the plaintiff need not be expressly referred to by name in the offending words; it is also immaterial whether or not the defendant intended to refer to the plaintiff (see Price Waterhouse at 809, [18] and Knupffer at 119; see also generally Gatley at paras 7.2 and 7.5 as well as Evans on Defamation at pp 45–47).

  123. (1) Whether the Disputed Words were referable to LKY

  124. [50] In determining whether the offending words are referable to the plaintiff, the context in which the words are used is relevant as it is in that context that the question of reference to the plaintiff is to be determined (see A Balakrishnan at [22]). In the present case, the Article was ex facie about the role of CSJ as an opposition politician and a self-proclaimed martyr in Singapore’s political landscape. But, pervading the Disputed Words as well as other parts of the Article were references to LKY by name (see, eg, the phrase “the answer lies with strongman Lee Kuan Yew himself” at para 9 of the Article as well as the references to “Lee Sr.” and “elder Mr. [Lee]” at para 17 and para 19 respectively of the Article).

  125. [51] The Appellants themselves had also accepted on two occasions that the Disputed Words referred to LKY. First, in their reply submissions dated 14 May 2008 filed for the Summary Judgment Applications, the Appellants stated the following at paras 76–77:

  126. [52] Second, at the hearing of the Summary Judgment Applications on 16 May 2008 before the Judge, counsel for the Appellants conceded that the words “Singaporean officials” in para 13 of the Article referred to LKY:

  127. [53] As for the word “government” in paras 10 and 11 of the Article, this word ordinarily means the body of persons who govern the State. It could refer to either the Cabinet collectively or the entire apparatus of a state’s system of government. The fact that the offending words refer to a class or body of persons (as opposed to a specific individual) is not, ipso facto, a bar to a successful claim in defamation so long as the ordinary reasonable person can conclude that “the statement about the body [of persons] is capable of being interpreted as referring to the individual” (per Rajah J in Chee Siok Chin ([32] supra) at [68]; see also Knupffer ([48] supra) at 119 and Lee Hsien Loong (HC) ([32] supra) at [35]). Of course, the larger the class of persons covered by the offending words, the less likely it is that the ordinary reasonable person would reach such a conclusion (see Gatley ([27] supra) at para 7.9 and Evans on Defamation ([26] supra) at pp 55–56).

  128. [54] In the present case, it would not be difficult for the ordinary reasonable person to associate the word “government” in (inter alia) para 10 of the Article, especially in the context of the phrase “squeaky-clean government” in that same paragraph, with LKY as he is almost universally acknowledged as the architect of Singapore’s corruption-free government. As the Appellants themselves stated at para 77 of their reply submissions dated 14 May 2008, LKY’s “power and influence in Singapore is known to all readers and is a matter of public interest in the region” [emphasis added]. We therefore fully agree with the Judge’s reasons (at [35]–[36] of the Judgment) for holding that the term “government” in the Disputed Words was referable to LKY, bearing in mind especially that para 9 of the Article also referred to LKY specifically as “strongman Lee Kuan Yew” [emphasis added]. As the Judge stated in the Judgment:

  129. (In this regard, reference may also be made to Sykes v Fraser (1974) 39 DLR (3d) 321 and Christchurch Press Co Ltd v McGaveston [1986] 1 NZLR 610, where claims for defamation succeeded in respect of statements that made an attack on a class and specifically referred to the plaintiffs concerned at the same time.)

  130. [55] As for the words “Singapore’s great and good” in para 13 of the Article (which, as mentioned at [5] above, were reproduced prominently in enlarged font in a box at the top of the last page of the Article), those words were used in the context of the assertion in that same paragraph that “Singaporean officials [had] a remarkable record of success in winning libel suits against their critics”. The ordinary reasonable person would know of the many defamation actions commenced by LKY against a large number of politicians and newspapers, which actions have been given wide media coverage in Singapore. In our view, there can be no doubt that the words “Singapore’s great and good” in para 13 of the Article also (and perhaps mockingly) referred to LKY as one of these persons.

  131. (2) Whether the Disputed Words were referable to LHL

  132. [56] Unlike LKY, who was referred to by name in the Disputed Words, LHL was not referred to by name in the Disputed Words, although he was referred to as “[LKY’s] son” at para 9 of the Article (which forms part of the Disputed Words). LHL was also expressly referred to in other parts of the Article falling outside the Disputed Words either by his full name (see, eg, paras 3 and 16 of the Article) or as “Prime Minister Lee” (see, eg, para 17 of the Article).

  133. [57] As mentioned earlier, the law of defamation does not require that the offending words must expressly refer to the plaintiff by name; it is sufficient so long as the ordinary reasonable person knows or has reason to believe that the plaintiff is being referred to by those words. Lord Reid gave the following example in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243:

  134. [58] In Lord Reid’s example, a reference to a child was accepted as a sufficient reference to the child’s parent where the parent was the plaintiff. In our view, there is no reason why the converse (ie, a reference to a parent) cannot be a sufficient reference to the child of that parent where it is the child who is the plaintiff. In the instant case, the ordinary reasonable person would know that LKY has only one son serving in the Government, namely, LHL, the Prime Minister of Singapore. Further, para 16 of the Article expressly used the word “son” when referring to LHL by his full name (see the passage “[a]ll these tensions will erupt when strongman Lee Kuan Yew dies. … Power may have officially passed to his son, Lee Hsien Loong …” [emphasis added]). In the context of the Article, the reference to “son” in the phrase “his son … will have a price to pay” at para 9 of the Article (which forms part of the Disputed Words) must necessarily mean LHL.

  135. [59] As for the term “government” in the Disputed Words, it must similarly be referable to LHL in the context of the Article. It is common knowledge that LHL, as the Prime Minister of Singapore, is the head of the Government in Singapore (see Lee Hsien Loong (HC) ([32] supra), where Belinda Ang J, in holding that the New Democrat articles were referable to LHL, reasoned (at [39]) that “[t]he ordinary reader would be aware that … the ‘one individual’ must be the person at the top, namely, the secretary-general of the [People’s Action Party] and the Prime Minister of Singapore – ie LHL”). Furthermore, the first explicit reference to LHL in the Article was at para 3, where he was referred to as “Singaporean Prime Minister Lee Hsien Loong”. This was followed by the reference in the next sentence to “his government’s persecution of the opposition” [emphasis added]. In our view, there can be no doubt that the term “government” in the Disputed Words likewise referred to LHL.

  136. [60] Turning to the phrase “Singaporean officials” in para 13 of the Article, the Appellants, although conceding in the court below that this expression referred to LKY, denied that it referred to LHL (see the Judgment at [31]). In our view, the Appellants’ position is untenable. If it is accepted that the word “officials” in the phrase “Singaporean officials” referred to LKY, that word must, as a matter of common sense, refer to LHL as well since he is the Prime Minister of Singapore and the head of the Government. As noted by the Judge, the word “officials” was used “in the plural, not the singular” (see the Judgment at [44]). LHL was the first government official referred to in the Article (see para 3 thereof), even before any reference to LKY was made, and he (LHL) was mentioned specifically in his capacity as the Prime Minister, the head of the Government. Furthermore, the word “officials” in para 13 of the Article was also used in the context of libel suits commenced by “Singaporean officials”. This is significant as it is common knowledge in Singapore that LHL, like LKY, has sued many politicians and the press for defamation in Singapore.

  137. [61] Lastly, with regard to the words “Singapore’s great and good” in para 13 of the Article, the reasons why these words were referable to LKY would equally apply in relation to LHL. For these reasons, we fully agree with the Judge’s finding that the Disputed Words referred to LHL as well.

  138. The meaning of the Disputed Words in relation to the Respondents

  139. (1) The meaning of the Disputed Words in relation to LKY

  140. [62] Turning now to the meaning of the Disputed Words, we consider first their meaning in relation to LKY. The pleaded meaning of the Disputed Words apropos LKY is that he is unfit for office because he is corrupt and has set out to sue and suppress those who question him for fear that such questions would expose his corruption (see [6] above).

  141. [63] In their defences, the Appellants pleaded in relation to both of the Respondents that the natural and ordinary meaning of the Disputed Words was instead as follows (and this was the meaning which they sought to justify):

  142. [64] The Respondents disagreed that the Disputed Words conveyed to the ordinary reasonable person the meaning alleged by the Appellants as set out in the preceding paragraph. The Respondents’ case was essentially that the Disputed Words meant that the Respondents were “corrupt”. This, it was argued, was the cumulative effect of all the unfounded allegations made against the Respondents in the Disputed Words, starting with para 9 of the Article, which quoted CSJ as saying that LKY had “accumulated enough skeletons in his closet that he knows that when he is gone, his son and the generations after him will have a price to pay” [emphasis added]. The Article proceeded to question in para 10 “whether Singapore deserve[d] its reputation for squeaky-clean government” [emphasis added] and then seamlessly launched (in the same paragraph) into the “scandal” [emphasis added] involving the NKF and Durai (ie, the NKF Saga).

  143. [65] According to para 10 of the Article, this scandal:

  144. The Article described (at para 11) this scandal as a “gift for the opposition” and suggested (in the same paragraph) that the scandal “had wider implications too” [emphasis added]. Paragraph 11 of the Article then immediately made reference to the Government’s control of huge pools of public money in the Central Provident Fund (“CPF”) and the Government of Singapore Investment Corporation Pte Ltd (“GIC”), both of which were described as “highly nontransparent”. The same paragraph went on to refer to the Government’s control over spending on public housing in Singapore and described the funds for refurbishing apartment blocks as “a bribe for districts that vote for the ruling party” [emphasis added]. Paragraph 11 ended with the statement that “Singaporeans have no way of knowing whether officials are abusing their trust as Mr. Durai did” [emphasis added]. Not satisfied with having made all these statements, HR went on to assert at para 12 of the Article that “[i]t gets worse” [emphasis added], and drew further parallels in paras 12–13 between the successful libel suit brought by the NKF in 1998 (before the NKF and Durai met their nemesis in the NKF libel suit (as defined at [36] above)) and the defamation suits commenced by “Singaporean officials” (see para 13 of the Article) and “Singapore’s great and good” (ibid), who had “a remarkable record of success in winning libel suits against their critics” [emphasis added] (ibid). Paragraph 13 then concluded with two questions: “how many other libel suits have Singapore’s great and good wrongly won, resulting in the cover-up of real misdeeds?” [emphasis added] and “are libel suits deliberately used as a tool to suppress questioning voices?” [emphasis added].

  145. [66] As is apparent, although the Article was ex facie about CSJ’s role as an opposition politician in Singapore, the fulcrum of the Article was really the NKF Saga, which HR used as a basis of comparison with the way in which (according to the Disputed Words) Singapore had been governed by the Respondents. The striking feature of the Disputed Words was the deliberate association and/or comparison which they made between, on the one hand, the highly secretive way in which Durai ran the NKF and, on the other hand, the way in which (according to para 11 of the Article) “[t]he government control[led] huge pools of public money in the [CPF] and the [GIC], both of which [were] highly nontransparent”. This, the Article suggested, meant that Singaporeans had no way of knowing whether government officials were abusing their trust just as Durai had abused the public’s trust in the NKF. A further association and/or comparison was made between the NKF’s successful libel suit in 1998 and the successful libel suits brought by “Singaporean officials” (per para 13 of the Article) and “Singapore’s great and good” (ibid). Defamation by implication (through association and/or comparison) is a well-known principle in the law of defamation (see further [91] below). This is illustrated by Chee Siok Chin ([32] supra) and Lee Hsien Loong (HC) ([32] supra), both of which were not only reported by the local media, but also publicised in regular postings on the SDP’s website.

  146. [67] In Chee Siok Chin, three of the participants in the SDP protest (including CSC) commenced proceedings for declarations that the Ministry for Home Affairs and the Commissioner of Police had acted in an unlawful or unconstitutional manner in ordering them to disperse during the SDP protest as well as in seizing the placards which they were holding and the T-shirts which they were wearing. Whether or not the declarations sought ought to be granted turned on, inter alia, whether the printed words on those T-shirts and placards were prima facie insulting or abusive for the purposes of ss 13A and/or 13B of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the Miscellaneous Offences Act”). In relation to this point, Rajah J observed (at [121] of Chee Siok Chin):

  147. [68] In the later case of Lee Hsien Loong (HC), which concerned the SDP proceedings, Belinda Ang J held that the term “NKF” had become a byword for corruption and financial impropriety, and concluded that the New Democrat articles, in associating the NKF and/or Durai with the Respondents (who were the plaintiffs in the SDP proceedings), were defamatory of the Respondents. At [58]–[61] of Lee Hsien Loong (HC), she said:

  148. [69] As mentioned earlier (see sub-para (c) of [32] above), the Appellants argued that the Judge should not have considered Chee Siok Chin and Lee Hsien Loong (HC) (as well as Lee Hsien Loong (CA) ([32] supra), where this court refused to grant CSJ leave to file an appeal out of time against the decision made in Lee Hsien Loong (HC)) in determining the natural and ordinary meaning of the Disputed Words. The Appellants’ complaint was that the Judge had relied on the findings in these cases even though they concerned different facts and subject matters. Counsel for the Appellants also pointed out that, in Chee Siok Chin, Rajah J had only referred to the NKF as being associated with financial impropriety and/or lack of integrity, but not corruption. Thus, the Appellants’ counsel argued, it was wrong of Belinda Ang J in Lee Hsien Loong (HC) to rely on Rajah J’s observations in Chee Siok Chin to find that the NKF and/or Durai had become “bywords for corruption” [emphasis added in bold italics] (see Lee Hsien Loong (HC) at [58]). It followed that, in the court below, the Judge was wrong to rely on Rajah J’s observations in Chee Siok Chin and Belinda Ang J’s finding in Lee Hsien Loong (HC) to support his own finding that the Disputed Words meant that the Respondents were corrupt.

  149. [70] The Appellants’ counsel further argued that, although Durai had been charged with (inter alia) an offence under s 6(c) of the current PCA, the essence of the offence charged was not corruption but deception of his principal (ie, the NKF), and that, in any case, Durai had not been convicted of the charge yet when the Article was published. The Appellants’ counsel submitted that there was a distinction between corruption and financial impropriety, and the former did not include the latter. However, when asked by this court what he understood to be the meaning of “corruption”, the Appellants’ counsel merely answered that whatever meaning was ascribed to “corruption” could not possibly include financial impropriety.

  150. [71] In response, counsel for the Respondents clarified that the Respondents had cited Chee Siok Chin and Lee Hsien Loong (HC) merely to make the point that the local courts had previously found that the words “NKF” and/or “Durai” had come to mean something in Singapore, ie, corruption. He submitted that the Judge had reached his conclusion on the natural and ordinary meaning of the Disputed Words only after a careful consideration of the actual words used and the inferences which the ordinary reasonable person would draw, having regard especially to that person’s knowledge of the events relating to the NKF Saga that were in the public domain. In the Respondents’ view, the observations and findings in Chee Siok Chin and Lee Hsien Loong (HC) merely showed what was generally known to the ordinary reasonable man in the street. The Judge did not have to rely on those two cases to reach his own conclusion on what the natural and ordinary meaning of the Disputed Words was. The Respondents’ counsel also argued that the Appellants, in claiming a derivative qualified privilege based on CSJ’s right-of-reply privilege – which right, the Appellants contended, entitled CSJ to make the comments stated in the Article even if those comments amounted to imputations of corruption as he had been accused by the Respondents on previous occasions of being “a liar, … a traitor to Singapore, … ‘cancerous’[,] ‘lacking in integrity’ [and] ‘dishonest’” [emphasis in original] – had thereby accepted that corruption could encompass a host of misdeeds including financial impropriety.

  151. [72] The word “corrupt” has a broad meaning both in ordinary usage and also in law. The following meanings, among others, of “corrupt” (as an adjective) are given in Encarta World English Dictionary (Kathy Rooney chief ed) (Bloomsbury, 1999) at p 426:

  152. The Shorter Oxford English Dictionary on Historical Principles (C T Onions ed) (Clarendon Press, 3rd Ed Reprint, 1991) gives the following meanings, among others (at vol 1, p 431):

  153. And, in Anandan Krishnan, Words, Phrases & Maxims Legally & Judicially Defined (LexisNexis, 2008), the definition given is as follows (at vol 4C(II), p 487):

  154. [73] As can be seen from these definitions, the word “corrupt” covers a wide range of wrongdoings, including unlawful, immoral or dishonest acts, abuse of office for personal gain and financial impropriety. In the present case, the key question is simply how the ordinary reasonable person, with the general knowledge that he has of the Relevant Events, would read and understand the Disputed Words, given especially the association which the Disputed Words made between the Respondents on the one hand and the NKF and/or Durai on the other. What would such a person understand to be the meaning or sense of the Disputed Words in the context in which they appeared, especially when the rhetorical question “[h]ow many libel suits have Singapore’s great and good wrongly won, covering up real misdeeds?” (which was essentially a reiteration of the corresponding question in para 13 of the Article) was given especial prominence by being reproduced in enlarged font in a box at the top of the last page of the Article? What was the message intended to be conveyed by those words if, contrary to the Respondents’ submissions, they did not mean that the Respondents had exploited the law of defamation to cover up their “real misdeeds” (per para 13 of the Article)?

  155. [74] We consider first the Appellants’ argument that the Disputed Words did not allege corruption in so far as Durai was not charged with corruption even though he was charged under s 6(c) of the current PCA. The Appellants contended that a charge under s 6(c) of the current PCA was in law only a charge of cheating (and not one of corruption) because L P Thean J had described a charge under s 6(c) of the Prevention of Corruption Act (Cap 241, 1985 Rev Ed) (“the 1985 PCA”), which is the predecessor of s 6(c) of the current PCA, as such in Knight v PP [1992] 1 SLR 720. In that case, Thean J observed (at 728, [20]) that s 6(c) of the 1985 PCA “[did] not imply any corruption at all”, but was “[i]n effect … an offence of cheating” (ibid).

  156. [75] We do not think that this argument by the Appellants has any merit for a number of reasons. First, in Knight v PP, the conduct of the accused in using a false invoice to obtain a larger government vehicle loan than the loan which he could actually have obtained was redolent of cheating rather than corruption. But, this does not necessarily mean that all charges under s 6(c) of the current PCA do not have an element of corruption in them. It is not inconceivable that some other kind of dishonest act (different from the conduct of the accused in Knight v PP) falling within s 6(c) of the current PCA may be regarded as corrupt conduct.

  157. [76] Second, the main reason why Thean J said that s 6(c) of the 1985 PCA did not imply corruption was that, while the word “corruptly” was used in ss 6(a) and 6(b) of that Act, it was not used in s 6(c) thereof (see Knight v PP at 728, [20]). Under the current PCA, the word “corruptly” likewise appears only in ss 6(a) and 6(b), but not s 6(c). It must not, however, be overlooked that dishonesty is an integral element of corruption, and, in this regard, it is pertinent that Thean J went on to say in Knight v PP that the offence under s 6(c) of the 1985 PCA “[did] imply an element of dishonesty” (ibid). This, in our view, is obviously correct as the conduct delineated in that subsection would not otherwise have been proscribed. We also note that Thean J added that a charge under s 6(c) of the 1985 PCA was more serious than a charge under s 417 of the Penal Code (Cap 224, 1985 Rev Ed) of cheating (ibid).

  158. [77] Third, if a person is reported to have been charged under the current PCA, it is certainly more likely for the ordinary reasonable person to infer that the charge which the accused faces involves an element of corruption than to infer that the charge in question “does not imply any corruption at all” (per Thean J in Knight v PP at 728, [20]).

  159. [78] Finally, we note that the heading of s 6 of the current PCA indicates that the provision is targeted at corruption. Section 6 of this Act reads:

  160. [79] In our view, the Appellants’ argument that a charge under s 6(c) of the current PCA is not a corruption charge is an academic contention that is beyond the ken of the ordinary reasonable person, and therefore has little practical relevance. For the purposes of the present appeals specifically, the question is what the ordinary reasonable person would have understood a charge under s 6(c) of the current PCA to connote, especially when it was widely reported that Durai was being investigated by the CPIB and was facing two charges of corruption (see [80] below). It seems to us that the ordinary reasonable person would associate this information with corruption rather than with cheating. In any case, the question of whether the offence under s 6(c) of the current PCA is one of corruption or one of cheating or fraud is, in our view, less important than the question of how the ordinary reasonable person would perceive or understand the association made by the Article between, on the one hand, LKY (and LHL) and/or the other government agencies mentioned therein and, on the other hand, the NKF and/or Durai. As we mentioned earlier, the ordinary reasonable person is one who “can read in an implication more readily than a lawyer” (see Skuse ([30] supra) at 285), and he is “guided not by any special [for instance, the knowledge of law that a lawyer possesses] but only by general knowledge” [emphasis added] (see Jones ([29] supra) at 1371).

  161. [80] In support of their contention that the ordinary reasonable person with the relevant general knowledge would read and understand the association of LKY (and LHL) with the NKF and/or Durai in the Disputed Words as suggesting corruption on the part of LKY (and LHL), the Respondents cited numerous media reports published at the time of the NKF Saga which stated that Durai was being investigated for corruption. We set out the significant reports below:

  162. (a) In an article titled “Unusual transactions prompt CAD probe on NKF: minister” published in the 20–21 August 2005 issue of The Business Times, it was reported, inter alia, that:

  163. (b) In an article titled “Durai arrested, will face charges filed by CPIB” published on the front page of The Straits Times on 18 April 2006, it was reported, inter alia, that:

  164. (c) In an article titled “Ex-NKF chief Durai charged with graft” published in The Business Times on 19 April 2006, it was reported, inter alia, that:

  165. (d) In an article titled “Former NKF chief faces two corruption charges” posted on Channel NewsAsia’s website on 18 April 2006, it was reported, inter alia, that:

  166. [81] The Appellants argued that all these media reports, just like the cases of (inter alia) Chee Siok Chin ([32] supra) and Lee Hsien Loong (HC) ([32] supra), were extrinsic evidence that could not be relied on to determine the natural and ordinary meaning of the Disputed Words. We agree that these media reports cannot dictate the meaning to be given to the Disputed Words, but we see no reason why they cannot be taken into account as a relevant factor in determining how the ordinary reasonable person would view the NKF Saga and, consequently, the association of the Respondents with the NKF and/or Durai in the Disputed Words. These reports could perhaps be said to be extrinsic evidence that Durai was associated with corruption at the time they were published. But, by the time the Article was published, the association of the NKF and/or Durai with corruption would have entered the public consciousness, given the intense publicity and extensive coverage given to the NKF Saga in the local media. In other words, by the time the Article was published, the association of the NKF and/or Durai with corruption was no longer extrinsic evidence.

  167. [82] In our view, it is significant that the NKF Saga:

  168. (a) centred on, inter alia, questionable practices and transactions by the NKF’s former board of directors, which was headed by Durai;

  169. (b) involved various investigations by the police and other authorities (especially the CPIB), which eventually led to criminal charges being pressed against Durai and other former directors of the NKF; and

  170. (c) was given extensive coverage in the local media, especially via numerous reports which stated that Durai was being investigated and would be charged with graft.

  171. Given these factors, the ordinary reasonable person would in all probability associate the NKF and/or Durai with grave financial impropriety, abuse of power and/or dishonest practices. These are serious misdeeds which fall readily within the ambit of corruption, and they were indeed described as corruption by the press in its reports. It seems to us highly artificial to say that such misdeeds, especially financial impropriety on the part of a government minister, would mean something less than corruption to the ordinary reasonable person, especially when we have regard to the broad meaning of “corrupt” referred to at [72] above. We are therefore not surprised that Rajah J in Chee Siok Chin and Belinda Ang J in Lee Hsien Loong (HC) found that the NKF and/or Durai had, in the mind of the ordinary reasonable person, come to symbolise financial impropriety and/or corruption.

  172. [83] We agree with counsel for the Respondents that Chee Siok Chin and Lee Hsien Loong (HC) are useful in showing that the NKF and/or Durai have come to mean something in Singapore, and we also agree with the conclusions reached by the court in these two cases. It seems to us that this was all that the Judge took notice of when he referred to these two cases (see the Judgment at [75]–[78]). Contrary to what the Appellants contended, it is clear to us that the Judge arrived at his conclusion on the natural and ordinary meaning of the Disputed Words after a careful consideration of the words themselves, and did not blindly rely on the decisions made in these two cases. We return now to the Disputed Words themselves.

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