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Tan Hing Sing and another v Tan Check Peng - [2013] SGDC 190 (26 June 2013)

26 June 2013

Deputy Registrar Gillian Koh Tan:

1 This is an assessment of the amount of damages payable by the defendant, Mr Tan Check Peng, to the plaintiffs, Mr Tan Hing Sing (“Mr Tan”) and Mr Chan Shoo Shong @ Chan Kait Young (“Mr Chan”), for defamation.

2 Mr Tan, Mr Chan and the defendant were community leaders within the Hainanese community at the relevant time. Mr Tan had previously served as a committee member of both the Hainan Hwee Kuan, which is an umbrella body representing the interests of the Hainanese community in Singapore, and the Hainan Tan Clan Association (“the Tan Clan Association”). He was also a member of a number of other Hainanese clan associations, including the Hainan Society, and had previously worked as the Managing Director of two hotels, namely Dickson Court Hotel and Boon Wah Hotel. Mr Chan has held a number of different posts in the Hainan Hwee Kuan and was a member of the Shun Yi Association.

3 The defendant has been a member of the Tan Clan Association since 1984 and served as the association’s Vice President from 1995 to 2009. He was then elected as the association’s Deputy President and served in this capacity until December 2011.

4 On 16 August 2009, at the 4th Management Committee Meeting of the Tan Clan Association, the defendant addressed the meeting in Mandarin and said the following words:

As a committee member, he is not allowed to tarnish the image of the Association at will. Let me tell everyone a thing of the past. The period when Hing Sing and Shoo Shong were manipulating the Association was the darkest time in the history of the Association.

5 These words were recorded in the written minutes of the meeting. The minutes were read and discussed at the 5th Management Committee Meeting of the Tan Clan Association on 25 October 2009.

6 On 15 June 2010, the plaintiffs brought an action in the District Court against the defendant in the tort of defamation. On 13 September 2011, interlocutory judgment was entered against the defendant by consent of the parties. Parties agreed that damages were to be agreed or assessed. As parties were unable to reach an agreement on the quantum of damages payable, the matter came before me for assessment.

7 The plaintiffs’ case was that the words, in their natural and ordinary meaning, were understood to mean that the plaintiffs had improperly, unethically and/or immorally tarnished the reputation of the Tan Clan Association or manipulated the Tan Clan Association. The words also implied that the plaintiffs had breached their duties as members or committee members of the Tan Clan Association by behaving improperly, unethically and/or immorally.

8 Each plaintiff testified about the effect of the defendant’s defamation on his reputation and standing.

9 Mr Tan testified in court on 25 July 2012 and completed giving his evidence. The next tranche of the assessment of damages was fixed on 30 October 2012.

10 On 21 September 2012, Mr Tan passed away. Following this, Mr Tan’s son, Tan Jee Loke, was substituted for Mr Tan and made a party to the action. The defendant did not object to this.

11 In his affidavit of evidence in chief, Mr Tan said that he had enjoyed a good reputation in business circles and within the hotel industry. Mr Tan highlighted that his profile had been published in the Chinese newspapers several times. Mr Tan said that he had suffered humiliation, embarrassment and grave mental anguish as a result of the defendant’s words. Friends and business associates avoided him and declined his invitations to social functions.

12 Under cross-examination, Mr Tan admitted that in May 2012, he had competed in an election for a seat on the management committee of the Hainan Hwee Kuan but had lost the election. Mr Tan admitted that this election loss had nothing to do with the defendant’s words. He also admitted that his membership status in the other grassroots and community associations he was active in had not been adversely affected by the defendant’s words. He had severed his links with the hotel industry and had not been involved in any businesses, other than a small-scale family business, since 2008. The defamation had had no impact on the family business in question.

13 In Mr Chan’s affidavit of evidence in chief, he said that he previously had a good reputation in business circles. He also highlighted that his profile had been published in the Chinese newspapers several times. He asserted that he had suffered much humiliation and embarrassment as a result of the defendant’s words. Many friends had shunned him. Rumours about what the defendant had said had spread to non-Hainanese friends. This caused him to suffer grave mental stress.

14 In cross-examination, Mr Chan said that although he continued to be a member of Hainan Hwee Kuan after the defamatory words were spoken, news of the defendant’s words had spread beyond the Tan Clan Association and Hainan Hwee Kuan. He asserted, generally, that “people from Malaysia and China” had found out about what the defendant had said. He also claimed that his friends from other associations, like the Shun Yi Association, had heard about the defendant’s words and had asked him about it. Some felt that he had “made a mess” in managing the Tan Clan association.

15 Mr Chan admitted that he had been expelled from the Tan Clan Association in 2007 because he had been asked by the defendant to pay legal costs for an unrelated matter and he had refused to do so. Mr Chan testified that he had not been engaged in any businesses for more than ten years.

16 The defendant did not take issue with the plaintiffs’ interpretation of the relevant words. Instead, the defendant’s position was that the plaintiffs were not entitled to substantive damages and that the defendant could not be held responsible for any subsequent republication of the words.

17 In the defendant’s affidavit of evidence in chief, he said that 22 persons had attended the 4th Management Committee Meeting on 16 August 2009. The meeting was a closed door meeting. The words were recorded in the minutes and a “warning stamp”, with the words “INTERNAL DOCUMENTS”, was stamped on each page of the minutes. The minutes were circulated only to the 33 committee members of the Tan Clan Association. Ordinary members were not given a copy of the minutes, although they could apply to refer to the minutes.

18 In cross-examination, the defendant said that the Tan Clan Association had a regulation against circulating matters that were brought up during meetings. Compliance with this regulation was taken seriously, as evidenced by the “INTERNAL DOCUMENTS” stamp that was placed on each page of the minutes. The defendant had never asked to expunge the defamatory words from the minutes of the meeting as he felt that he had said the words “in good faith” and minutes could only be amended if there was evidence that the committee member in question had not actually said the words that were recorded. He admitted that he had not apologised to the plaintiffs.

19 It is trite law that in determining the quantum of damages to be awarded in defamation cases, the court will take into account a number of factors, including the nature and gravity of the defamation; the conduct, position and standing of the plaintiff and defendant; the mode and extent of publication; the conduct of the defendant from the time the defamatory statement was published to the moment of the verdict; the failure to apologise and retract the defamatory statement and the presence of malice: Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 at [7].

20 It was clear that circulation of the defamatory words was limited. A total of 22 persons, excluding the defendant, were in attendance at the 4th Management Committee Meeting of the Tan Clan Association on 16 August 2009. The words were recorded in written minutes which were circulated to 33 committee members and confirmed at the 5th Management Committee Meeting on 25 October 2009.

21 While it was theoretically possible for ordinary members or members of future or newly-constituted management committees of the Tan Clan Association to ask to inspect the minutes, no evidence was led to show that this had actually taken place.

22 As to the issue of whether the committee members had gone on to spread news of what the defendant had said to other parties, I note that the only evidence on this emanated from the plaintiffs themselves. Even then, the plaintiffs’ evidence came in the form of very general, broad assertions that “friends”, “associates”, “non-Hainanese friends” and “people from Malaysia and China” had come to hear about the defendant’s words.

23 In any event, I agreed with counsel for the defendant’s submission that the defendant should not be held responsible for any republication of his words to persons outside the committee members of the Management Committee of the Tan Clan Association.

24 In Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [180] – [182], it was held that where a party did not procure the republication of defamatory material, the republication could not be said to be the natural and probable consequence of the original publication. This applied even in a situation where the party in question knew that following his publication of the defamatory material (in police reports), there would be intense interest from members of the public and the media in obtaining a copy of the police reports.

25 Applying Tang Liang Hong , I am of the view that any republication of the defamatory words to persons other than the committee members of the Tan Clan Association could not be viewed as a natural and probable consequence of the defendant’s publication of the words at the 4th Committee Meeting. In making this finding, I accepted the defendant’s evidence that a strict view was taken of disclosing matters that had been discussed at the meetings to persons outside the Tan Clan Association. The fact that the words “INTERNAL DOCUMENTS” were clearly stamped on each page of the minutes amply buttressed the defendant’s evidence in this regard.

26 It is clear from Tang Liang Hong at [184] that a party who is not responsible for republications of defamatory material cannot be held liable for any damage occasioned by the republications of the same. I therefore find that the defendant was not liable for any damage occasioned by the spreading of his words outside the Tan Clan Association.

27 The defendant should therefore only be held liable for damages arising from the publication of his words to the 33 committee members of the Tan Clan Association, who either attended the 4th Committee Meeting or received the minutes containing the words thereafter.

28 Given this limited publication of the defendant’s words, the next issue for determination is the extent of damage suffered by the plaintiffs as a result of the defamation.

29 On this point, it was not disputed that Mr Tan continued to be a member of the Tan Clan Association and the Hainan Hwee Kuan even after the defamatory words were published. He also confirmed that while he had not been successful in winning a seat on the management committee of the Hainan Hwee Kuan, this had nothing to do with the defendant’s actions. Mr Tan further admitted that his membership status in the other associations in which he held membership had not been adversely affected. He also confirmed that he had stopped being involved in businesses, except a small-scale family business, from 2008 (that is, before the defamatory words were uttered), and that this family business had not been adversely affected by the defendant’s words.

30 The only evidence that Mr Tan offered with respect to the damage suffered by him was an assertion, in his affidavit, that he had suffered humiliation, embarrassment and mental anguish as a result of the words and that certain friends had started to avoid him. I was prepared to accept this, but only in respect of the 33 committee members of the Tan Clan Association.

31 In like vein, while Mr Chan claimed that many friends had shunned him and that news about the defendant’s words had spread to persons outside the Hainanese community and to persons overseas, I am only prepared to accept that he suffered some humiliation and embarrassment in respect of the 33 committee members of the Tan Clan Association.

32 In this regard, I took into account Mr Chan’s admission that his expulsion from the Tan Clan Association in 2007 was unrelated to the defamation and that he had not been engaged in any business for more than ten years.

33 The defendant submitted that nominal damages of $10 should be awarded to each plaintiff. Counsel for the defendant contended that no evidence had been presented to show that the plaintiffs had “suffered any adversity” in the Tan Clan Association. The plaintiffs did not lose memberships and were not forced to resign leadership positions within the association or any related association as a result of the defamation. It was also highlighted that the plaintiffs were retirees who were not in paid employment or engaging in business activities at the material time.

34 The plaintiffs, on the other hand, contended that each of them should be awarded damages of $40,000. In submitting that this figure was appropriate, the plaintiffs relied on Kay Swee Pin v Singapore Island Country Club [2008] SGHC 143.

35 Before setting out the principles and case precedents that guided my decision, I turn first to the plaintiffs’ submission that Kay Swee Pin was a relevant case precedent for the assessment of damages in the present case.

36 In Kay Swee Pin , the plaintiff’s membership in a country club was suspended for a period of one year. The plaintiff brought an application to set aside the suspension order and sought compensation for the loss of use of the club’s facilities during the period of suspension. Her application was dismissed by the High Court, but this decision was reversed on appeal. The Court of Appeal reversed the suspension order and ordered that damages be assessed by a High Court Registrar.

37 The plaintiff in Kay Swee Pin sought damages for deprivation of her membership rights and privileges, damages for humiliation, embarrassment, anguish and mental distress caused by the wrongful suspension as well as aggravated, exemplary and punitive damages. The High Court awarded the plaintiff a sum of $40,000 for mental distress sustained as a result of the wrongful suspension of her club membership and further awarded the plaintiff a sum of $32,000 as damages for deprivation of her membership rights and privileges.

38 I was not persuaded by the plaintiffs’ contention that the court should rely on Kay Swee Pin in determining the quantum of damages to be awarded in the present case.

39 It is clear from Kay Swee Pin at [33] that the claim in that case was for breach of contract, in that the club in question had wrongfully suspended the plaintiff’s membership in breach of the terms of contract found in the constitution and rules of the club. The High Court went on to observe that the claim for damages therefore arose from a contractual breach and that the contractual principles of damages should be considered in assessing the quantum of damages payable.

40 The High Court also made clear in Kay Swee Pin at [60] that a claim for damages arising from a defamation action would be wholly independent of a claim for mental distress arising from breach of contract:

[T]here is a distinction between the damages sought for reputational losses on the one hand, and damages for mental distress and humiliation and so forth, on the other. These constitute separate categories of losses: the recovery of one should not deprive the pursuit of the other.

41 The present case was framed as a claim for the tort of defamation. There is therefore no basis for referring to the award made in Kay Swee Pin for damages for mental distress arising from a contractual breach.

42 Instead, it would be more appropriate to refer to cases where awards for defamation were made and where the circulation of the defamatory words was limited to a clearly defined group of persons. In this regard, it bears noting that the defendant’s defamatory words were disseminated in a controlled environment to a limited number of persons. Twenty-two persons were present at the committee meeting in question and the minutes of the meeting were circulated to 33 persons.

43 In TJ System (S) Pte Ltd and Others v Ngow Kheong Shen (No 2) [2003] SGHC 217, awards of $20,000 - $30,000 were made to each of five plaintiffs. The defendant had sent an email to 15 colleagues, imputing the possible commission of the criminal offence of bribery by the 1st plaintiff company or the 1st plaintiff’s imminent prosecution for a corruption offence. The 2nd and 3rd plaintiffs were directors of the company and were each awarded $30,000, while the 4th and 6th plaintiffs were sales staff of the company and were each awarded $20,000. In making this lower award to the 4th and 6th plaintiffs, the High Court noted that their careers were not at the same stage of progression as the 2nd and 3rd plaintiffs.

44 In Yeo Nai Meng v Ei-Nets Ltd and Anor [2004] 1 SLR(R) 153, the plaintiff was defamed by the defendants who published reports which impugned the plaintiff’s conduct in respect of a company, which was a subsidiary of a company known as Plan B Technologies Pte Ltd (“Plan B”). The plaintiff was a shareholder and director of Plan B. The defamatory words were understood to mean that the plaintiff had committed fraud and gross misconduct against the subsidiary company, breached the Companies Act and committed criminal misappropriation. The reports were published to four persons. The plaintiff was awarded damages of $80,000 and this was affirmed by the Court of Appeal on appeal.

45 I was of the view that the sting of the defamatory words in the present case was substantially less serious than the words used in both TJ System and Yeo Nai Meng . The defendant made no suggestion, for example, that the plaintiffs had committed criminal offences. The imputation that the plaintiffs had manipulated or deceived the Tan Clan Association was closer to an allegation of mismanagement, rather than an allegation of criminal wrongdoing or malfeasance. I was therefore of the view that the awards in the present case should be in a significantly lower bracket than the awards in TJ System and Yeo Nai Meng , which started at $20,000.

46 Further support for a significantly lower award to be made in the present case can be found in the fact that the plaintiffs did not lose memberships and were not forced to resign leadership positions within the relevant associations as a result of the defamation. I also took into account the fact that the plaintiffs were elderly retirees who were not engaged in business investments and who did not have paid careers at the material time.

47 That said, I disagreed with the defendant’s position that only nominal damages should be awarded to each plaintiff. The Court of Appeal has made clear that even in cases where a defendant’s reputation is not severely harmed, damages should be awarded for the distress suffered by the defamed party. In Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86, the Court of Appeal observed at [52] – [54] that:

In CA 92/2000, Mr Chew appealed against the amount awarded as damages to Mr Arul on the ground that it was excessive. It was submitted that the judicial commissioner should have awarded Mr Arul nominal damages because there was no damage to his reputation. It was also submitted that aggravated damages should not have been awarded.

General damages serve three functions. Firstly, they act as a consolation to the plaintiff for the distress he suffered from the publication of the statement. Secondly, they repair the harm to his reputation. Thirdly, they serve to vindicate his reputation (see Gatley on Libel and Slander (9th Ed) at pp 201-202).

In Ratcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 at 528, Bowen LJ pointed out that "the law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation". In this case, Mr Arul testified that he had the impression that the committee members of the club did not think that he had a stained character. Furthermore, Mr Vince Khoo Thiam Siew, the only witness for Mr Arul, testified that he and the other members of the committee accepted Mr Arul's explanation that he had been acquitted. Admittedly, such evidence shows that Mr Arul's reputation was not severely damaged, but this does not mean that his reputation did not suffer at all. In any case, damages should also be awarded as compensation for the distress suffered by Mr Arul. The judicial commissioner was fully aware of this. In [311] of his grounds of decision ([30] supra ), he stated as follows:

... The plaintiff is a practising advocate and solicitor of more than 30 years and was at the time of the publications the vice-president of the Club ... The plaintiff gave evidence that he was hurt and I have no reason to disbelieve him. Compensatory damages must be given both for his hurt feelings and the reduction in his standing before his social peers in the [committee]. The anxiety and uncertainty which the plaintiff is subjected to in the litigation must also be taken into account ... [Emphasis added]

48 In like vein, there was evidence that the plaintiffs, both of whom were active members of the Hainanese community who had held leadership positions in clan and other associations, were hurt by the defendant’s words. The words were disseminated to 33 persons who were active leaders within the same community and it is reasonable to find that the plaintiffs suffered some reduction in standing before these persons whom they considered to be peers. I also took into account that the defendant had not apologised to the plaintiffs or in any sort of relevant forum.

49 For the foregoing reasons, I was of the view that an award of $10,000 to each plaintiff is appropriate and I ordered accordingly.

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