www.ipsofactoJ.com/archive/index.htm [1986] Part 3 Case 10 [CA,S'pore]    

 

COURT OF APPEAL, SINGAPORE

 

Jeyaretnam

- vs -

Goh

Coram

CJ WEE CJ

KC LAI J

FA CHUA J

19 AUGUST 1984

Judgment

KC Lai, J

(delivered the judgment of the Court)

  1. In the course of directing his party’s political campaign to retain the Anson seat in a parliamentary by-election, the defendant held a conference with the media at which he said, inter alia, that he was ‘inclined to believe’ that the plaintiff, an opposition candidate in the by-election, had engineered an exodus of some two-thirds of the audience who had attended the inauguration of the Singapore Democratic Party (SDP), a political party which was friendly to the plaintiff and which had invited the plaintiff as its guest speaker.

  2. In a claim in the High Court for damages and an injunction arising out of the slander, the plaintiff’s claims were dismissed with costs. LP Thean J held that although the words spoken were defamatory of the plaintiff the slander was not actionable because the defamatory words were not calculated to disparage the plaintiff in the discharge of his office as secretary general of the Workers’ Party (WP). That finding was sufficient to dispose of the plaintiff’s claims. The learned trial judge, however, went on to hold that at any rate the defendant had successfully established the defence of fair comment and further that the plaintiff had failed to prove that the defendant in uttering the slander was actuated by express malice, which, if established, would have disentitled the defendant the defence of fair comment. The learned trial judge, however, rejected the defendant’s plea that the slander was uttered on an occasion of qualified privilege.

  3. Being dissatisfied with the decisions of the learned trial judge, the plaintiff brought this appeal challenging the validity of all three conclusions as recited earlier of the learned trial judge. No cross-appeal was filed by the defendant. Accordingly, the issues whether the words spoken were defamatory and whether they were spoken on an occasion of qualified privilege are no longer in contention. However, the defendant has filed a respondent’s notice in which it is stated that if, as contended by the plaintiff, the learned trial judge had erred in holding that the words complained of were not calculated to disparage the plaintiff in his office as secretary general of WP the defendant will contend in any case that the learned trial judge had correctly dismissed the plaintiff’s claim for damages for slander because the plaintiff’s said office was an office of honour or credit and not an office of profit and the particular words complained of by the plaintiff were not actionable without proof of special damage, and there was no such proof in this case.

  4. The plaintiff is and was at all material times the secretary general of WP. On 26 October 1981 he was a candidate of his party in a by-election conducted to elect a Member of Parliament for the constituency of Anson. The defendant is the First Deputy Prime Minister in the government of Singapore. He was at the material time Minister for Heath and Second Minister for Defence and the First Organising Secretary of the Peoples’ Action Party (PAP), the party in government. In that capacity he was responsible for his party’s election activities and so far as the Anson by-election was concerned he was responsible to secure the election of the PAP candidate.

  5. In para 4 of his amended statement of claim the plaintiff averred that at a conference held for the media on 26 October 1981 the defendant ‘falsely and maliciously’ spoke of the plaintiff and of his office as the secretary general of WP the following words:

  6. SDP had their inaugural earlier this month. Mr. Jeyaretnam attended. After Mr. Jeyaretnam had spoken, he left the hall, and when he left the hall 200 participants left with him. I believe the exodus was engineered. I don’t think it was, it did not speak well for the SDP. It shows that the crowd, the limited crowd still look towards Mr. Jeyaretnam, for the time being as a leader of the opposition. But I am inclined to believe that the exodus was contrived by the leader of the Workers’ Party to show who is boss at this stage. And surely Mr. Chiam cannot take that trick lightly.

  7. By para 6 of the amended statement of claim the plaintiff claimed that the words in their natural and ordinary meaning meant and were understood to mean that he was an opportunist, a man of base and dishonourable motives, seeking only to promote himself, to gain power for himself, and had shown by his conduct that he was not genuinely sincere in building up a credible and constructive opposition in Parliament but was out solely to seek his own glory and was accordingly unfit to hold the office of a Member of Parliament.

  8. The defendant denied in his amended defence that the words bore the meanings attributed to them and further denied that he spoke or published the said words of or concerning the plaintiff in the office of secretary general of WP or of or concerning the plaintiff’s fitness as a Parliamentary candidate. In para 3 of the amended defence the defendant set out ipsissima verba the words which had preceded and followed the words complained of by the plaintiff. A reading of the entire quotation will show the textual context in which the offending words were uttered.

  9. By para 4 of the amended defence the defendant claimed that at any rate the words spoken by him were fair comment, spoken without malice, upon a matter of public interest, namely, the conduct of the leaders of the opposition parties, and upon the several particulars of facts set out within sub-paras 4(i) to (vii) thereof. The defendant also relied on s 9 of the Defamation Act (Cap 32, 1970 Ed) which provides that in an action for slander in respect of words consisting partly of allegations of fact and partly of expression of opinion,

    a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

  10. The defendant also claimed that the occasion of publication of the said words was an occasion of qualified privilege. This averment was not seriously pursued at the trial and LP Thean J properly rejected this defence which, as we had noted earlier, is no longer in issue.

  11. The defendant in para 7 of the amended defence asserted that the words complained of were not actionable without proof of special damage and no special damage was alleged.

  12. In his amended reply by which issues were joined, the plaintiff made the specific plea that the words complained of were not fair comment but were allegations of deliberate defamatory conduct against him. Further, it was alleged that the defendant was actuated by express malice in speaking the words, for which four particulars of facts set out in sub-para 2(i) to (iv) of the amended reply were relied upon.

  13. At the trial it was established that the SDP held its inauguration on 21 September 1981 at the Singapore Conference Hall auditorium. There were about 300 participants. Chiam See Tong, the Secretary General of SDP, invited the plaintiff as secretary general of WP to speak at the inauguration. The plaintiff was the first to speak after the leaders of SDP had welcomed the participants and the office-bearers had been sworn in. LP Thean J found that the plaintiff was the most popular man that evening at the auditorium, receiving rounds of applause before and during his speech. He spoke at great length. One of those who attended the inauguration was Leslie Fong Yim Leong, the deputy editor of The Straits Times who also covered the by-election. In his evidence he said that after the plaintiff ‘finished the speech, he picked up his papers, came down the stage and left the hall. Almost immediately after (the plaintiff) left the hall people from all parts of the hall stood up and made their way out. I heard rustles of people getting up and the people leaving took no extra care to do so quietly. My estimate is that about 150 people left.’ According to Leslie Fong, only 100–120 remained in the hall 20 minutes after the plaintiff’s departure. One other journalist, Giam Meng Teck, gave evidence and substantially confirmed the evidence of Leslie Fong. The plaintiff’s departure was neither mentioned nor explained to the audience. It transpired that the plaintiff had to keep a dinner appointment at his home and that he had told Chiam See Tong about having to leave the meeting after his speech.

  14. On 14 October 1981 a writ was issued for the Anson by-election. From then until nomination day there was no public announcement of any electoral alliance between WP and SDP. A newspaper, the then New Nation reported on 20 October 1981 that both Chiam See Tong, the secretary general of SDP, and the plaintiff were keeping ‘mum’ and that one week previously Chiam See Tong had said that his party Chairman, Fok Tai Loy, would be a likely candidate but Chiam See Tong refused to confirm this piece of news. The Straits Times carried a report on what transpired at the nomination centre on nomination day. Leslie Fong and his assistant, Edward Wee, filed the report. It was reported on 22 October 1981 that when Chiam See Tong arrived at the nomination centre he had said: ‘Yes, we are going in’ which Leslie Fong said in evidence he understood to mean that SDP would be contesting the by-election; that the situation became ‘curiouser and curiouser’ when Chiam See Tong, SDP chairman Fok Tai Loy and the plaintiff were huddled together inside the hall; and that SDP chairman was reported to have said that ‘the two parties did not really come to terms over the candidacy for Anson until they met inside the hall’.

  15. The said report also mentioned that after the close of the nomination Chiam See Tong read a statement stating, inter alia, that SDP on learning that the plaintiff was contesting the by-election had graciously withdrawn their candidate. It was implicit in the statement that if another person had been nominated by WP, the SDP would have fielded their candidate for the by-election.

  16. It was in those circumstances that the defendant conducted the conference for the media as part of his campaign to secure the return of the PAP candidate nominated for the Anson by-election. In the course of the conference the defendant uttered the words complained of which LP Thean J found were defamatory of the plaintiff. LP Thean J said in his judgment:

    The sting lay in the suggestion or implication that the plaintiff took advantage of a gesture of goodwill from the SDP — a party with which the WP had good relations — on the occasion of the SDP’s inauguration for a purely selfish and self-serving purpose and engineered or contrived an exodus of a large section of the audience at the inauguration so as to project himself as the ‘boss’ and leader of the opposition to the party in power. The words imputed to the plaintiff dishonourable or discreditable conduct or motive or a lack of integrity and such an imputation in my opinion was defamatory of the plaintiff.

  17. It is now convenient to turn to the grounds of appeal. The plaintiff contends that the learned trial judge had erred in law in holding that the words complained of were not calculated to disparage him in the office as secretary general of WP. The plaintiff reminds us that the learned trial judge had found that the words imputed dishonourable or discreditable conduct or motive or a lack of integrity, that the defendant in another part of his verbal statement at the conference had stated that the defendant’s comments were on their conduct as leaders of the opposition parties and not on their conduct as private individuals, that he had attended the SDP inauguration in his capacity as the secretary general of WP and that the defendant had implied that he had taken advantage of a gesture of goodwill from a friendly political party. Relying on Thean J’s finding that ‘the words imputed to the plaintiff dishonourable or discreditable conduct or motive or a lack of integrity’, the plaintiff contends that Robinson v Ward (1958) 108 LJ 491 is clearly distinguishable. We will revert to this case later.

  18. Learned counsel for the defendant in reply says that in this action for slander the defendant had in his amended defence contended that the words complained of were not actionable and that that plea touched on the scope of s 5 of the Defamation Act (Cap 32, 1970 Ed) which is in identical terms with s 2 of the Defamation Act, 1952 of England (the 1952 Act).

    Section 5 of the Defamation Act reads:

    In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

  19. We are invited by counsel for the defendant to review and state the common law on the actionability of slanderous words before the passage of s 2 of the 1952 Act. At common law for words to be actionable without proof of special damage the words had to be spoken

    1. in the way of a claimant’s office; and

    2. that the words must have disparaged the claimant in that office.

    Learned counsel for the defendant further submitted that the common law also made a distinction between offices of profit on the one hand and offices of honour or credit on the other. An action for slander lay at common law without proof of special damage in respect of an office of profit because the common law was prepared to presume the fact that special damage had been suffered: see Alexander v Jenkins [1892] 1 QB 797 to which we will also later return to remind ourselves of what fell from the lips of Lord Herschell.

  20. However, as learned counsel stresses before us, at common law words were not actionable without proof of special damage in respect of an office of honour or credit unless the words complained of imputed corrupt or dishonest conduct, or of misconduct in the discharge of the duties of that office of honour.

  21. Learned counsel for the defendant goes on to submit that the effect of the passage into law of s 2 of 1952 Act was simply to remove the requirement that the defamatory words had to be spoken of a claimant ‘in the way of his office’. Learned counsel argues that s 2 altered nothing else. Proceeding on that line of argument, learned counsel for the defendant submits that in England after the 1952 Act, and in Singapore now, in order for slanderous words to be actionable without proof of special damage,

    1. it must have disparaged the claimant in his office; and

    2. if that office is an office of honour, the slanderous words must have imputed corrupt or dishonest conduct, or misconduct, in the discharge by the claimant of his duties of that office.

    Learned counsel relies on Robinson v Ward (supra). Robinson and Ward were Freemasons. At an annual general meeting of the Lodge of Instruction, of which Robinson was a preceptor, Ward was alleged to have uttered words which meant that Robinson was not a fit and proper person to be a preceptor of a masonic lodge and that he was not a fit and proper person to join a masonic lodge.

  22. LP Thean J correctly set out what was decided in Robinson v Ward by Diplock J (as he then was) in the following terms:

    Diplock J (as he then was) held that in an action for slander for words alleged to have been spoken of a plaintiff touching his office, where such office was one of honour and not of profit and no special damage was proved, it was necessary in order to show that the words were calculated to disparage the plaintiff in his office within s 2 of the Defamation Act, 1952 to establish, in accordance with decisions prior to that Act, that the words imputed to the plaintiff some want of integrity or corrupt or dishonest conduct in the discharge of his office. That decision has stood the test of time for more than 25 years and has been quoted with acceptance by learned text book writers to be correct: see vol 28, Halsbury’s Laws of England (4th edn) para 55 and Gatley on Libel and Slander (8th edn) para 174.

  23. One of the decisions decided prior to the 1952 Act is Alexander v Jenkins (supra) where the Court of Appeal in England had reviewed the standard of proof required as regards pecuniary loss in an action for slander of a person which suggested unfitness of that person to hold an office of honour. The Court of Appeal followed the much earlier case of Onslow v Horne 2 WB1 750; 96 ER 439 and held, and we quote from the headnote as it is in our view accurate, that ‘(w)ords spoken of a man who had been elected to the office of town councillor of a borough, alleging that he is an habitual drunkard and unfit for the office of town councillor, are not actionable, in the absence of special damage’. In consequence the claimant in that case who succeeded at the trial failed in the appeal.

    The issue in the Court of Appeal was succinctly stated by Lord Herschell in the course of arguments in these terms:

    The only point on which the Court wish to hear you (i.e. counsel for claimant who succeeded below but who eventually failed in the appellate court) is whether there is any authority for holding that an action can be maintained for an imputation of a man who holds an office, not of profit, but what has been called an office of credit and honour, when the conduct imputed would not have led to his being deprived of the office.

  24. After pointing out that courts in the past had not required special damage to be proved in an action for slander against a claimant in his office of profit because of the practical and evidentiary rule of presumption of pecuniary losses in those cases, Lord Herschell at pp 801–802 said:

    Now, it having been held that there is a distinction between that which is actionable, in the case of offices of honour or credit as compared with the case of an office of profit, the ground upon which the action has been said to be maintainable in the former case, certainly in some of the authorities, would seem to be this, that the language used has been such as, if true, would shew that the man ought to be deprived of his office, and therefore involves a risk of exclusion from that office. No case, I think, has been cited to the court which cannot be supported on that ground. In the case of an imputation on a justice of the peace, there was certainly a risk of deprivation. The language used, if true, would have justified deprivation, and shewn that it was proper and perhaps necessary. So in the case of an action by a churchwarden, where there was an imputation on him of misconduct in his office, he too might have been deprived. But, as l have said, it is not necessary to go so far today as to deal with the case of an imputation on a man of misconduct in his office. All we have to deal with is merely an imputation of unfitness for the office — and there is no case in which an action of slander has been held to lie for an imputation that a man by reason of his conduct is unfit for an office, except where, by reason of that misconduct, if it existed, he could have been deprived of the office.

  25. It will be seen that what fell from the lips of Diplock J in Robinson v Ward harked back to what was stated by the Court of Appeal in Alexander v Jenkins (supra).

  26. Accordingly, in our judgment LP Thean J was correct in concluding that this action could have been dismissed on the sole ground that the plaintiff, not having alleged or proved special damage as regards his office of honour, namely, that of the secretary general of WP, had failed to establish that the words complained of were actionable without proof of special damage. LP Thean J was correct in finding in effect that quite apart from not being calculated to disparage the plaintiff in his office, the words were not actionable because they did not impute to the plaintiff the kind or quality of misconduct which have rendered the words actionable without proof of special damage. Looked at another way, we agree, as counsel for the defendant urges, that the words did not impute to the plaintiff the kind of misconduct which could, or even might, have resulted in the plaintiff being deprived of his office. In the context of this case we very much doubt if straight — thinking members of WP would in all the circumstances have removed the plaintiff as secretary general for having exploited the SDP inauguration to his and to WP’s political advantage. We therefore reject this ground of appeal.

  27. We now turn to the plaintiff’s criticisms of LP Thean J’s conclusion that the defendant has succeeded in establishing his defence of fair comment. No criticism is made by the plaintiff of the four elements, which, in his judgment, the learned trial judge said the defendant must establish in order to succeed on the plea of fair comment. These four elements in the words of LP Thean J are:

    1. the words complained of are comment, though it may consist of or include inference of facts;

    2. the comment is on a matter of public interest;

    3. the comment is based on facts, and

    4. the comment is one which a fair-minded person can honestly make on the facts proved.

  28. As regards element (ii) the plaintiff concedes that if the words complained of are comment, the comment is on a matter of public interest. His main criticisms relate to elements (i) and (iii). In considering element (i) the learned trial judge found that the defendant first addressed himself to certain facts he had gathered from the press or of which he had been informed by a defence witness DW2 Seah Seng Kwang (whose evidence we would advert to later) and had drawn from those facts the inference that the exodus of about 200 persons at or about the same time of the plaintiff’s departure from the hall or immediately after was engineered or contrived by the plaintiff to show who was the boss at that stage. LP Thean J stated these facts in the following words (p 188 of the record of appeal):

    (a)

    the vacillating attitude of the SDP as regards contesting the by-election;

    (b)

    the inauguration of the SDP at which the plaintiff spoke as a guest speaker;

    (c)

    the departure of the plaintiff immediately after his speech and

    (d)

    the exodus of a large section of the audience, about 200 persons, at about the same time of the plaintiff’s departure or immediately thereafter.

  29. The learned trial judge also found that the inference drawn by the defendant from these facts was a comment and not a bare or naked statement of facts and was the defendant’s belief or conclusion on these facts.

  30. The plaintiff contends that the learned trial judge was wrong in coming to the conclusion that the inference drawn by the defendant was comment. His argument is that the learned trial judge’s conclusion was based on a wrong construction of the expression ‘left with him’ to mean ‘left at about the same time of the plaintiff’s departure or immediately thereafter’ because by the use of the preposition ‘with’ the defendant meant that after the plaintiff left the hall 200 participants ‘accompanied him’ or ‘left in unison with him’. We reject this argument as being, in our opinion, founded on a pedantic quibble over the word ‘with’. In our opinion the interpretation of LP Thean J was in accord with the context in which the word was used and in consonance with the popular usage of the word as spoken in Singapore. In our judgment the words complained of are plainly comment.

  31. As regards element (iii) the learned trial judge found that the comment was based on facts which the defendant had proved and which facts we have earlier set out. The plaintiff advances the same argument as to the proper construction of the preposition ‘with’ in the context of the words ‘left with him’ and on that argument submits that the learned trial judge erred in finding that the comment was based on fact. We reject this argument.

  32. Next, LP Thean J considered element (iv). In directing himself on the limits of fair comment, LP Thean J considered the judicial pronouncements in Merivale v Carson (1888) LR 20 QBD 275 — per Lord Esher MR. at pp 280-281 and Silkin v Beaverbrook Newspapers [1958] 2 All ER 516 per Diplock J (as he then was) at p 520. LP Thean J then said in his judgment:

    Applying the objective test as laid down in the pronouncements I have just quoted at great length and on the basis of those facts as proved before me, in my judgment a fair- minded person could at that time have honestly arrived at the conclusion as the defendant did. It is significant that the defendant in arriving at this conclusion did consider the alternative conclusion, i.e. that the exodus from the SDP’s inauguration was spontaneous but in such a case it did not reflect too well on the SDP, and he ruled out this alternative. Now the conclusion which the defendant arrived at may not be impartial; obviously it cannot be so. That conclusion may be biased, may be prejudiced, may be grossly exaggerated or may even be wrong; it may be a conclusion I cannot and do not agree. But it is one which falls within the allowed limit of fair comment: it is a conclusion which a fair-minded person on the basis of those facts could have honestly arrived at. In my judgment the defendant has succeeded in establishing the four elements necessary to found his defence of fair comment.

  33. Before us the plaintiff seeks to challenge these conclusions on the ground that the comment was not ‘fair’. In support of his contention that the comment was not ‘fair’ the plaintiff

    1. again refers to the alleged misstatement of the defendant about 200 people leaving ‘with’ the plaintiff, and

    2. alleges that the defendant had not known of the plaintiff’s departure from the hall when the comments were made.

    We have said enough on A. As for B it arose in this way. The defendant in examination-in-chief stated that he had relied on two press reports in English when he made the comment. During cross-examination the plaintiff pointed out to the defendant that the two press reports contained nothing about the plaintiff’s departure after making the speech. The defendant’s memory was obviously jogged and his answer was that his branch party worker had told him about it. DW2, Seah Seng Kwang, was traced overnight and gave evidence the following day to the effect that he had told the defendant about the exodus following the departure of the plaintiff from the hall after the speech. Seah Seng Kwang’s evidence was believed by LP Thean J. The plaintiff during the argument persistently refuses to accept that the defendant had a genuine and perfectly understandable lapse of memory and makes the bald and, in our view, quite unwarranted and unjustified assertion that Seah Seng Kwang’s evidence was fabricated. LP Thean J had the benefit of seeing and hearing the defendant and Seah Seng Kwang and, reading the notes of evidence, we are satisfied that Seah Seng Kwang had quite properly refused to be drawn into any issue not relevant to his testimony. This ground of appeal also fails.

  34. Finally, the plaintiff submits that LP Thean J was wrong in holding that he had failed to discharge the burden of proving that the defendant was actuated by express malice, the existence or otherwise of which is again a question of fact: see Gatley on Libel and Slander (8th Ed) para 793. LP Thean J found that the facts relied upon by the defendant in support of the plea of fair comment were true. Having found that there was a basis for the comments, LP Thean J directed himself on the authority of Horrocks v Lowe [1975] AC 135 as to the honesty of the views asserted by the defendant. He found that ‘there was no ground for disbelieving (the defendant) that the belief (the defendant) entertained was a genuine and honest one’. In our judgment there is no basis for attacking LP Thean J’s finding that the defendant was not actuated by express malice.

  35. Before we part with this judgment we find it necessary to reiterate that as an appellate court we have to accord to findings of facts of a trial judge the greatest respect and ought not to disturb them unless we are satisfied that the trial judge had reached a wrong decision and that in the context of this case ‘any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions’: see the speech of Lord Thankerton in Thomas v Thomas reported under the name of Watt (or Thomas) v Thomas 1947 SC (HL) 45; Watt (or Thomas) v Thomas [1947] AC 484. These principles have been repeatedly applied by the Privy Council in several cases including Khoo Sity Hoh v Lim Thean Thong [1912] AC 323; 2 BLSS 331, Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41 and Muthusamy v Ang Nam Cheow [1978-1979] SLR 25 .

  36. For these reasons the appeal is dismissed with costs.

    Judgment below

    LP Thean J

  37. On 21 September 1981 the Singapore Democratic Party (SDP), a registered political party in Singapore, held its inauguration at the Singapore Conference Hall auditorium starting at 6.30pm. To this inauguration was invited the plaintiff who was at that time and still is, the secretary-general of the Workers’ Party (WP), another registered political party in Singapore. At the time when the plaintiff was invited he intimated to Chiam See Tong, secretary-general of the SDP, that he (the plaintiff) had a dinner engagement on the same evening as the inauguration and would therefore have to leave after his speech, and this was acceptable to the SDP.

  38. The plaintiff and the chairman of the WP, Wong Hong Toy, attended the SDP’s inauguration, and as a guest speaker the plaintiff took his seat at the rostrum in the company of the leaders of the SDP, whilst his chairman sat with the audience. The plaintiff was the first main speaker after words of welcome from the leaders of the SDP, adoption of the SDP’s constitution and the swearing-in ceremony of the office bearers of the SDP. The plaintiff was the only guest speaker and was the most popular man that evening; he received rounds of applause even before he spoke and he made a fairly long speech. After his speech he left the meeting and at that time or immediately following his departure a large section of the audience also left. In fact, from that time onwards, people began to trickle out of the hall, presumably because the meeting was quite prolonged; it did not really conclude until 10.30pm or thereabout.

  39. On the following day the popularity of the plaintiff at the SDP’s inauguration was reported in the Business Timesas follows:

    If applause were considered a good measure of popular support, Mr JB Jeyaretnam, secretary-general of the Workers’ Party, was definitely the most popular person at the Conference Hall last night.

    Ironically, the occasion was the inauguration of the Singapore Democratic Party. Mr Jeyaratnam, the guest speaker received four rounds of loud hand claps — before he uttered his first words — as he was introduced.

    Several of the some 300-strong audience even walked out after his speech …

  40. On 14 October 1981 a writ was issued for a Parliamentary by-election for the constituency of Anson, and the nomination day for candidates for the by-election was fixed for 21 October 1981 and the by-election was to be held on 31 October 1981. On 20 October 1981, on the eve of the nomination day, the following report appeared in the then afternoon newspaper, New Nation under the heading, ‘Chiam, Jeya keep mum’:

    Today is the eve of Nomination Day for the Anson by-election but the Workers’ Party and the Singapore Democratic Party are still keeping mum.

    Mr JB Jeyaretnam, secretary-general of the Workers’ Party, said party members will meet today but declined to elaborate.

    Mr Chiam See Tong, secretary-general of SDP, said last week that his party chairman, Mr Fok Tai Loy, is a likely candidate for the by-elections. But this morning, he would not confirm this. However, he maintained that the party will be contesting.

    The United People’s Front secretary-general, Mr Harbans Singh, has said that he will be contesting.

    The PAP has named Mr Pang Kim Hin as its candidate for the by-election on 31 October.

  41. On the nomination day, the People’s Action Party (PAP) nominated Pang Kim Hin, as their candidate and the WP nominated the plaintiff as their candidate for the by-election. The SDP on seeing that the plaintiff was nominated did not field a candidate to contest the by-election.

  42. The defendant is the Minister for Defence and Second Minister for Health in the government. He was appointed the first organising secretary of the PAP on 17 April 1979 and has continued to hold that post. As such he was responsible for, inter alia, the party’s election activities. He was therefore most concerned at securing the return of the PAP’s candidate at the by-election. On 26 October 1981 he held a press conference at Blair Plain at which representatives of the media, such as the press and Singapore Broadcasting Corp, were present. At that conference the defendant spoke, among other things, the following words:

    SDP had their inaugural (sic) earlier this month. Mr Jeyaretnam attended. After Mr Jeyaretnam had spoken, he left the hall, and when he left the hall 200 participants left with him. I believe the exodus was engineered. I don’t think it was a spontaneous exodus. If it was, it did not speak well for the SDP. It shows that the crowd, the limited crowd still look towards Mr Jeyaretnam, for the time being, as a leader of the opposition. But I am inclined to believe that the exodus was contrived by the leader of the Workers Party to show who is boss at this stage. And surely Mr Chiam cannot take that trick lightly.

  43. These are the words complained of by the plaintiff as defamatory of him and the present proceedings were initiated by the plaintiff against the Defendant claiming damages and injunction. The plaintiff claims that the words complained of in their natural and ordinary meaning were defamatory of him: they meant and were understood to mean that the ‘plaintiff was an opportunist, a man of base and dishonourable motives, seeking only to promote himself, to gain power for himself, and had shown by his conduct that he was not genuinely sincere in building up a credible and constructive opposition in Parliament but out solely to seek his own glory and was accordingly unfit to hold the office of a Member of Parliament. He further claims that the words were calculated to injure him in his office as leader of a political party and in aspiring to be a Member of Parliament. By this further plea the plaintiff is in effect invoking s 5 of the Defamation Act (Cap 32), to which I shall revert later. The defendant denies that the said words in their natural and ordinary meaning were defamatory of the plaintiff as alleged or at all and that they were calculated to disparage the plaintiff in his office as the secretary-general of the WP. The defendant further raises two other defences, namely: first, the said words were fair comment spoken without malice upon a matter of public interest, namely, the conduct of leaders of the opposition parties, including the plaintiff, and the conduct of members of the public prior to the Parliamentary by-election, and secondly, the occasion in which the said words were uttered was one of qualified privilege. The plaintiff joins issue with the Defendant on the latter’s defences and alleges that the defendant was actuated by malice when he said those words. There are therefore five issues before me:

    1. whether the words in their natural and ordinary meaning were defamatory of the plaintiff;

    2. if they were, whether they were calculated to disparage him in his office as the secretary-general of the WP and hence are actionable without proof of special damage under s 5 of the Defamation Act (Cap 32);

    3. whether the words complained of were fair comment on a matter of public interest;

    4. whether the occasion in which the words were spoken was one of qualified privilege, and

    5. whether the defendant was actuated by any malice in uttering the words complained of.

  44. The first issue is one purely of construction of the words complained of, and the approach to such a construction is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extend to any reference or implication from which persons can reasonably draw. As said by Lord Morris in Jones v Skelton [1963] 3 All ER 952 at p 958:

    The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v Daily Telegraph Ltd [1963] 2 All ER 151). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

    Together with the ascertainment of the natural and ordinary meaning of the words complained of to be considered is the question whether they were defamatory of the plaintiff. The test here is whether the words were calculated to expose him to hatred, ridicule or contempt in the mind of a reasonable man or would ‘tend to lower the plaintiff in the estimation of right-thinking members of society generally’ (per Lord Atkin in Sim v Stretch [1936] 2 All ER 1237).

  45. The crucial point in this issue is this: did the words complained of in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part? If they did, then inescapably they were defamatory of the plaintiff. It seems to me that in considering this issue one must bear in mind the following salient facts.

    In those circumstances the words, in my opinion, were capable of a defamatory meaning and were defamatory of the plaintiff. The sting lay in the suggestion or implication that the plaintiff took advantage of a gesture of goodwill from the SDP — a party with which the WP had good relations — on the occasion of the SDP’s inauguration for a purely selfish and self-serving purpose and engineered or contrived an exodus of a large section of the audience at the inauguration so as to project himself as the ‘boss’ and leader of the opposition parties to the party in power. The words imputed to the plaintiff dishonourable or discreditable conduct or motive or a lack of integrity and such an i mputation in my opinion was defamatory of the plaintiff.

  46. Mr Grimberg on behalf of the defendant argued,

  47. Viewed in that context and in those circumstances the words, he said, could not be defamatory. I agree that the words must be considered in the context of the whole speech made by the defendant and in those circumstances. But I do not agree that considered in the context and in those circumstances they were not defamatory of the plaintiff. Indeed, there is nothing in the contextual material of the defendant’s speech or the circumstances in which the words were spoken which could eliminate or ameliorate the asperities of the sting. Mr Grimberg next argued that the tolerance level of right-thinking persons at election time rose and a remark which might be defamatory passed ‘as a common coin at election time,’ and further that the words were spoken to representatives of the press media and their esteem of a politician would not be likely to be reduced ‘by a purely political dig’ at election time. In my view, neither of these arguments is sufficiently cogent.

  48. Mr Grimberg in the course of his lengthy submission on this point postulated an example of similar words spoken of an academic, who addressed a large symposium and left immediately thereafter followed by an exodus of a substantial part of the audience, and conceded that in such circumstances such words might be defamatory of the speaker. I have no doubt at all that in such circumstances the words if said of such a speaker would be defamatory of him. In this case I have no doubt also that the words complained of were defamatory of the plaintiff, notwithstanding that they were said of the plaintiff as a politician and in the circumstances as suggested by Mr Grimberg.

  49. I now turn to the next issue whether the words though defamatory of the plaintiff are actionable. This is an action for slander and the plaintiff has not averred or proved any special damage suffered by him. He can only succeed if he can show that the defamatory words fall within s 5 of the Defamation Act (Cap 32), which provides as follows:

    In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

  50. The only office which is relevant to this issue is the office of secretary-general of the WP which the plaintiff held at the time the defamatory words were spoken and which he still holds. The office is one of honour and not an office of profit; a fact admitted without reserve by the plaintiff. The question therefore is whether the words complained of were calculated to disparage the plaintiff in that office and the answer turns on what in law is meant by the words ‘calculated to disparage’ a person in his office, and such words as laid down by decided cases have certain signification in relation to an office of honour, as distinguished from an office of profit.

  51. Section 5 of our Defamation Act is in pari materia with s 2 of the Defamation Act 1952 of England. At common law prior to the passing of the Act of 1952 in order to maintain an action for slander by words spoken of a person concerning his office, where such office was one of honour and not of profit and where no special damage was proved, two requirements must be fulfilled:

    1. the words must impute to that person want of integrity or corrupt or dishonest conduct or other misconduct in the discharge of his office, and

    2. they must be said in the way of that office.

  52. Since the passing of the Act it is no longer necessary to satisfy the second requirement but the first requirement remains. In other words, in order to be actionable per sewithout proof of special damage, the slanderous words which are said to be calculated to disparage a person in his office, where such office is one of honour, must impute some want of integrity or corrupt or dishonest conduct or other misconduct in the discharge of that office. In the case of Robinson v Ward (1958) 108 LJ 491, in an action for slander, where the plaintiff had alleged that the defendant used words which meant and were understood to mean that the plaintiff was not a fit and proper person to be a perceptor of a masonic lodge, Diplock J (as he then was) held that in an action for slander for words alleged to have been spoken of a plaintiff touching his office, where such office was one of honour and not of profit and no special damage was proved, it was necessary in order to show that the words were calculated to disparage the plaintiff in his office within s 2 of the Defamation Act 1952 to establish, in accordance with decisions prior to that Act, that the words imputed to the plaintiff some want of integrity or corrupt or dishonest conduct in the discharge of his office. That decision has stood the test of time for more than 25 years and has been quoted with acceptance by learned text book writers to be correct: see 28 Halsbury’s Laws of England (4th Ed) para 55 and Gatley on Libel and Slander (8th Ed) para 174. I respectfully agree with the view of the law as laid down in Robinson v Ward.In my judgment the words though defamatory of the plaintiff were not calculated to disparage him in his office as the secretary-general of the WP. They did not impute any want of integrity or corrupt or dishonest conduct or any other misconduct in the discharge of that office. On this issue the plaintiff fails.

  53. My decision on the second issue is sufficient to dispose of this action. However, in view of the matters pleaded and the arguments addressed by both the Plaintiff and Mr Grimberg, I feel I should decide also the remaining three issues.

  54. On the third issue, there are four elements which the defendant must establish in order to succeed on his plea of fair comment:

    1. the words complained of are comment, though it may consist of or include inference of facts;

    2. the comment is on a matter of public interest;

    3. the comment is based on facts, and

    4. the comment is one which a fair-minded person can honestly make on the facts proved.

  55. On the first element it is useful to set out in greater detail the relevant passage of the defendant’s speech from which the words complained of were extracted. He said:

  56. I believe, reading the press reports, that SDP told the press that he was going in to contest the Anson by-election, but as it turned out, he never did. A party that purports to be serious-minded must not mislead members of the press and the public. It is not a tactical measure to fool the PAP. The PAP has announced its candidate. Then who is the SDP trying to pull the wool over the eyes? Not the PAP. I think there is a game going on between the SDP and the Workers Party — who is the leader of the opposition or whd WW be the leader of the opposition parties in the years to come. SDP had their inaugural earlier this month. Mr Jeyaretnam attended. After Mr Jeyaretnam had spoken, he left the hall, and when he left the hall 200 participants left with him. I believe the exodus was engineered. I don’t think it was a spontaneous exodus. If it was, it did not speak well for the SDP. It shows that the crowd, the limited crowd still look towards Mr Jeyaretnam, for the time being, as a leader of the opposition. But I am inclined to believe that the exodus was contrived by the leader of the Workers Party to show who is boss at this stage. And surely Mr Chiam cannot take that trick lightly.

  57. Looking at the passage as a whole it seems to me clear that the defendant at that time first addressed himself to certain facts, which he gathered from the press or of which he was informed by DW 2, namely:

    1. the vacillating attitude of the SDP as regards contesting the by-election;

    2. the inauguration of the SDP at which the plaintiff spoke as a guest speaker;

    3. the departure of the plaintiff immediately after his speech, and

    4. the exodus of a large section of the audience, about 200 persons, at about the same time of the plaintiff’s departure or immediately thereafter.

  58. The defendant then drew his own inference from these facts that the exodus was engineered or contrived by the plaintiff to show who was the ‘boss’ at that stage. It is this inference which is the thrust of the complaint of the plaintiff. To my mind this was a comment and not a bare or naked statement of facts. It contained the defendant’s belief or his conclusion based on or drawn from certain facts.

  59. On the second element, I do not think that there can be any doubt that the subject matter of the comment was one of public interest. The comment was made on an event that took place at the inauguration of the SDP and the conduct or behaviour of a candidate for a Parliamentary by-election. Such matters are clearly of public interest, and I do not think that this point merits any further discussion.

  60. The third and the fourth elements should be considered together. At this stage I would like to dispose of a point raised by the plaintiff. In his written submission the plaintiff drew my attention to the discrepancy between what the Defendant said at the press conference and what he pleaded in his defence. At the press conference the defendant, antecedent to his uttering the defamatory words, mentioned or made reference to only the following facts:

    1. that the SDP had an inauguration;

    2. that the plaintiff attended and spoke;

    3. that after the plaintiff had spoken, he left, and

    4. that some 200 participants left with him.

  61. In his defence, however, the defendant set out a number of other facts in support of his plea of fair comment. It is not clear to me precisely what the plaintiff sought to make out by picking on this discrepancy. The plaintiff then dealt with only those facts mentioned by the defendant at the press conference and sought to demonstrate that the facts were not correctly stated by the Defendant and therefore maintained that the defence of fair comment was not available. The plaintiff, however, ignored all other facts pleaded by the defendant as the basis on which the plea of fair comment is founded.

  62. On this line of argument I have two observations.

  63. I now turn to examine what facts have been proved by the defendant in support of his plea of fair comment. On the evidence the defendant has proved the following facts:

    1. The inauguration of the SDP was held on 21 September 1981 at the Singapore Conference Hall auditorium.

    2. The plaintiff was invited as the secretary-general of the WP to speak at the inauguration and he was the only guest speaker and was the first speaker after the leaders of the SDP had delivered words of welcome and the office bearers had been sworn in.

    3. There were about 300 participants at the inauguration.

    4. The plaintiff was the most popular man that evening at the auditorium, receiving rounds of applause even before he spoke, and this was reported in the issue of the Business Timeson 22 September 1980.

    5. He spoke at great length and was also applauded while he was speaking, and immediately after his speech he picked up his papers and left the hall: see evidence of DW 3.

    6. His departure was unexplained.

    7. At that time or immediately thereafter there was a large section of the audience — some 200 people — who also left the meeting. At the end of the meeting there were about 100 people remaining in the hall.

    8. On 14 October 1981 a writ was issued for the Anson by-election.

    9. As from that day to the nomination day there was no indication to the public of any electoral alliance between the WP and SDP.

    10. On 20 October 1981 a report appeared in the then New Nationthat both Chiam See Tong and the plaintiff were keeping ‘mum’ and that one week before Chiam had said that his party chairman, Fok Tai Loy, would be a likely candidate but Chiam refused to confirm.

    11. On 22 October 1981 it was reported in The Straits Timesthat when Chiam See Tong arrived at the nomination centre on the polling day, he said: ‘Yes, we are going in’; that subsequently Chiam See Tong, Fok Tai Loy and the plaintiff ‘were seen huddled together inside the hall’, and that the chairman of the SDP was reported to have said that the ‘two parties did not really come to terms over the candidacy for Anson until they met inside the hall’.

    12. It was also reported in the said issue of The Straits Times that after the close of nomination Chiam read a statement stating, among other things, that the SDP on learning that the plaintiff was contesting the by-election had graciously withdrawn their candidate, thus implying that if another person had been nominated by the WP, the SDP would field their candidate for the by-election.

  64. The next question is whether on all these facts a fair-minded person could honestly have come to the conclusion as the defendant did: that the exodus of 200 participants at the SDP’s inauguration was engineered or contrived by the plaintiff to show that he was the ‘boss’ at that stage, and there was no unity between the WP and the SDP. The test is an objective one. In Merivale v Carson (1888) LR 20 QBD 275, 280, 281. Lord Esher, MR said, at pp 280–281:

    What is the meaning of a ‘fair comment’? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It is very easy to say what would be clearly beyond that limit; if, for instance, the writer attacked the private character of the author. But it is much more difficult to say what is within the limit. That must depend upon the circumstances of the particular case. I think the right question was really left by Field J to the jury in the present case. No doubt you can find in the course of his summing-up some phrases which, if taken alone, may seem to limit too much the question put to the jury. But, when you look at the summing-up as a whole, I think it comes in substance to the final question which was put by the judge to the jury: ‘If it is no more than fair, honest, independent, bold, even exaggerated, criticism, then your verdict will be for the defendants.’ He gives a very wide limit, and, I think, rightly. Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within that prescribed limit. The question which the jury must consider is this — would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; If you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all.

  65. To the same effect were words said by Diplock J (as he then was) in his direction to the jury, in Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516, 520:

    The matter which you have got to decide, and I emphasise this again, because it is so important, is not whether you any of you, agree with that comment. You may all of you disagree with it, feel that it is comment that is not correct; but that is not the test. I will remind you of the test once more. Could a fair-minded man, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view — could a fair-minded man have been capable of writing this? That is a totally different question from the question: Do you agree with what he said?

    So in considering this case, members of the jury, do not apply the test of whether you agree with it. If juries did that, freedom of speech, the right of the crank to say what he likes, would go. Would a fair-minded man holding strong view, obstinate views, prejudiced views, have been capable of making this comment? If the answer to that is yes, then your verdict in this case should be a verdict for the defendants. Such a verdict does not mean that you agree with the comment. All it means is that you think that a man might honestly hold those views on those facts. But it is for you, the jury, not for me, the judge, to answer that question, and the answers which juries have given in cases of this kind to that question have formed the law which lies at the basis of freedom of speech in this country.

  66. Applying the objective test as laid down in the pronouncements I have just quoted at great length and on the basis of those facts as proved before me, in my judgment a fair-minded person could at that time have honestly arrived at the conclusion as the defendant did. It is significant that the defendant in arriving at this conclusion did consider the alternative conclusion, ie that the exodus from the SDP’s inauguration was spontaneous but in such a case it did not reflect too well on the SDP, and he ruled out this alternative. Now the conclusion which the defendant arrived at may not be impartial; obviously it cannot be so. That conclusion may be biased, may be prejudiced, may be grossly exaggerated or may even be wrong; it may be a conclusion I cannot and do not agree. But it is one which falls within the allowed limit of fair comment: it is a conclusion which a fair-minded person on the basis of those facts could have honestly arrived at. In my judgment the defendant has succeeded in establishing the four elements necessary to found his defence of fair comment.

  67. I now turn to the fourth issue: whether the words complained of were uttered on an occasion of qualified privilege. Mr Grimberg referred to the categories of qualified privilege as set out in para 14.01 of Duncan & Neil (2nd Ed) on p 92 and feebly argued that the defendant’s statement fell within category (a) thereof, ie statement made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them, and cited Stuart v Bell [1891] 2 QB 341 in support. He sought to found the defence of qualified privilege on the fact that at the material time there was a by-election and that the defendant as a politician had a social duty to inform representatives of the media his assessment of the political opponents and that such representatives had a corresponding duty or interest to receive it. Such an argument I am unable to accept; it is really stretching the limits of the occasion of qualified privilege and extravagantly attributing to the defendant a social duty to make the statement complained of and to the representatives of the media a corresponding duty or interest to receive it. Assuming that the defendant, being at the material time ‘the principal PAP strategist for the Anson by-election’ (as Mr Grimberg very attractively put it), had a social duty to make that statement to the representatives of the media, it is difficult to see how the latter had a corresponding duty or interest to receive it. Clearly they do not have: see Hebditch v MacIlwaine [1894] 2 QB 54. In that case the plaintiff was elected to the office of the guardian of the poor for a certain parish. The defendants who were rate-payers and entitled to vote at the election sent to the board of guardians a letter containing defamatory words of the plaintiff. Lord Esher MR said, at p 59:

    Such being the facts of the case, what was the judge called upon to consider in dealing with the question whether the occasion was privileged? He had first to consider whether the defendants, who published the defamatory matter, had any interest or duty in connection with the subject which they thus brought before the board of guardians. I am not prepared to say that they had not an interest or duty. On the contrary, I am inclined to think that they had an interest in the matter. They were electors, and had an interest in having the office filled by a person properly elected. Then the position of the board of guardians, to whom the defamatory matter was published, had to be considered. They had no interest in the matter, as it seems to me, and, as I have already said, they had no duty or power to take any action upon the communication made to them. Under these circumstances I think it clear that the occasion was not privileged.

  68. I therefore reject the defence of qualified privilege raised by the defendant.

  69. I now turn to the last issue: whether in uttering the words complained of the Defendant was at that time actuated by malice. Malice means any ill-will, spite or improper motive. The burden of proving malice rests with the plaintiff. The plaintiff here is relying on the following:

    1. The words were uttered by the defendant more than a month after the event which took place.

    2. The defendant was directing or actively assisting in the campaign to secure the election of the PAP’s candidate in a by-election and was keenly interested in the result of the election.

    3. The words uttered were a deliberate attack on the personal character and integrity of the plaintiff.

    4. The defendant published the words knowing them to be untrue and/or recklessly not caring whether they are true or false or without any honest belief.

  70. It will be convenient to deal with the allegations in sub-paras (a) and (b) together. It is true that the defendant uttered the words complained of about one month after the event. But that by itself is not evidence of malice; nor does it give rise to any inference of malice on the part of the defendant. There was a by-election and as organizing secretary the defendant was very much concerned at securing the election of the PAP’s candidate. As part of PAP’s campaign he called for a press conference at which he sought to analyse and assess his political opponents and show that there was no real unity between the WP and the SDP. Hence he referred to the unusual event at the SDP’s inauguration, the vacillating attitude of the SDP, the agreement reached between the SDP and WP at the eleventh hour just before close of the nomination at the nomination centre and proceeded to draw his inferences. It is true that the defendant wanted the PAP’s candidate to win the by-election and, of course, he was keenly interested in the results of the by-election. True also it is, that all the words and statements made at the press conference were directed towards demolishing the plaintiff as a political candidate and diminishing his chances of success at the by-election. There is nothing improper about that (apart from uttering the defamatory words on which I have decided) and such an exercise does not give rise to any inference of malice on the part of the defendant. As for the allegation in sub-para (c) relied upon by the plaintiff, there is no evidence, nor can it be inferred, that the defendant was making a personal attack on the plaintiff. On the contrary, he took pains to clarify this at the conference when he said:

    I want to make clear that any statements of mine this afternoon about the opposition parties and about their leaders are not about them as individuals but about them as politicians. In other words, I do not cast any aspersions on them as individuals. I only challenge their credentials as politicians, as people who aspire to be MPs.

  71. With regard to the last allegation in sub-para (d) that the defendant uttered the words knowing them to be untrue or recklessly not caring whether they are true or false, I find there is no basis for such an allegation. As I said before, there were facts on which the defendant could honestly make his comment.

  72. The defendant was subject to a prolonged cross-examination in which he gave his evidence with candour. Nothing has emerged therefrom or elicited from him which cast any doubt or suspicion on the bona fides of his belief that the conclusion he came to was true. I find no ground for disbelieving him that the belief he entertained was a genuine and honest one. In considering this issue I find most pertinent the following passage from the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135, 150 notwithstanding that the words complained of were uttered by the defendant in the course of an analysis of his political opponents:

    Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief’. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.

  73. Lord Diplock in that case was dealing with the question of malice affecting the defence of qualified privilege but what was said there equally applies to malice affecting the defence of fair comment. In conclusion, I find that the plaintiff has failed to discharge his burden of proving that the defendant was actuated by malice when he uttered the words complained of.

  74. Accordingly, this action is dismissed with costs.

 

Cases

Alexander v Jenkins [1892] 1 QB 797; Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41; Horrocks v Lowe [1975] AC 135; Khoo Sit Hoh v Lim Thean Tong [1912] AC 323; 2 BLSS 331; Merivale v Carson [1888] 20 LR QBD 275; Muthusamy v Ang Nam Cheow [1978-1979] SLR 25; Onslow v Horne 2 WBI 750; 96 ERBI 439; Robinson v Ward [1958] 108 LJ 491; Silkin v Beaverbrook Newspapers [1958] 2 All ER 516; Thomas v Thomas [1947] SC (HL) 45; Watt (or Thomas) v Thomas [1947] AC 484

Legislations

Defamation Act (Cap 32, 1970 Ed): s. 5

Authors and other references

Gatley on Libel and Slander (8th Ed) 

Representation

JB Jeyaretnam in person.

Joe Grimberg (Drew & Napier) for the respondent.

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