Lawrence Kwek

- vs -

Lim

Judgment

SK Chan J

1. This is an application by LKJB (the plaintiff) for an interlocutory injunction to restrain LHY (the defendant) whether by himself or his servants or agents from further publishing an alleged libel, that is to say, the words set out in the statement of claim in Suit No 199 of 1989 or words to the like effect.

2. The statement of claim of 11 paragraphs set out a number of allegations by LHY (the plaintiff in that action) that LKJB (the defendant in that action) had induced LHY to invest in a company called Sunrean Natorny Goods Pte Ltd and to become its managing director (and thereby to give up alternative employment) and that in so doing had acted negligently or had misrepresented to LHY fraudulently the economic prospects of the said company as a result of which LHY has suffered loss.

3. LKJB has filed a defence and counterclaim in Suit No 199 of 1989 denying the allegations of LHY and counterclaiming the sum of $50,000 being the unpaid consideration for the 50,000 shares in the company which LKJB has sold to LHY.

4. The present action was commenced by LKJB against LHY on 1 March 1989 for, inter alia, damages for libel after LHY had on or about 16 February 1989 sent a copy of the writ endorsed with the statement of claim in Suit No 199 of 1989 to the Head of Employment Service Department, Ministry of Labour. The publication of the statement of claim after its filing is not denied by LHY. He has however maintained that he did not do it with malice as he thought that he was entitled to do so on the ground that court documents are public documents. He has also filed a defence in this action in which he maintains that the allegations in the statement of claim are not capable of being and are not defamatory of LKJB, but that if they are, they are true in substance and in fact. Qualified privilege and fair comment have also been pleaded in the defence. Apart from the defence, it should also be noted that the statement of claim in Suit No 199 of 1989 is in itself an assertion that the matters alleged therein are true as they form the basis of LHY’s action against LKJB.

5. The application before me has been argued on one point only, that is whether the plaintiff is entitled to an interlocutory injunction to restrain the defendant from publishing the alleged libellous statements when the defendant has pleaded justification by way of defence.

6. Counsel for LKJB concedes that the English authorities on the point beginning with the decision of the Court of Appeal in Bonnard v Perryman [1891] 2 Ch D 269 are against him. However, he submits that a Singapore court should not follow these authorities as they were decided in the context of jury trials in which there is a separation of functions between judge and jury, a situation which does not obtain in Singapore. He refers to the case of Datuk Syed Kechik v Dato Yeh [1977] 1 MLJ 56 to show that the High Court in Malaysia, where defamation actions are now tried by juries, has granted an interlocutory injunction on the balance of convenience (applying the principles laid down in American Cyanamid v Ethicon [1975] AC 396) where justification was pleaded as a defence. A careful reading of the judgment in that case shows, however, that the judge found that the argument based on justification was designed to delay the proceedings, no affidavit having been filed to raise the defence, and that the purported justification of the innuendo was not tenable. In other words, there was in substance either no or insufficient plea of justification. It should however be noted that if this case decided what counsel for LKJB has submitted that it decided, it would no longer stand against the latter decision of The New Straits Times Press v Airasia Bhd [1987] 1 MLJ 36 where the Supreme Court of Malaysia approved and applied the established principle that no interlocutory injunction would be granted in a libel action where justification is pleaded. In neither of these cases was it argued or considered that the absence of a jury was a relevant factor.

7. It is not doubted that this court has, in the exercise of its equitable jurisdiction or under s 3(a) of the Civil Law Act (Cap 43) (which is a re-enactment of the Common Law Procedure Act 1854), the power to grant interim injunctions to restrain the publication or repetition of defamatory statements. But, if the English authorities are applicable to Singapore, then the jurisdiction will be exercised sparingly and only in clear cases. In England, two reasons have been advanced by the courts to justify this cautious approach.

   • The first is founded on the separation of the functions of judge and jury in a defamation trial where it is the function of the jury and not the judge to find whether the words complained of, assuming that they are capable of bearing a defamatory meaning, are in fact defamatory of the plaintiff. It therefore follows that except in cases where the words complained of are clearly defamatory, in the sense that any finding by the jury to the contrary will be reversed on appeal, a judge will not grant an interim injunction to restrain the publication or repetition of the words complained of where it is arguable that they may not be defamatory of the plaintiff.

   • The second reason is based on the public interest that the right of free speech should not be unfettered: see Herbage v Times Newspapers, The Times, 1 May 1981. Where a plaintiff seeks the prior restraint of the publication by the defendant of words which are alleged to be defamatory of him, the court is not merely concerned with the direct and immediate interests of the parties to the action. Otherwise, injunctions would be granted as a matter of course as it is seldom that the defendant can show that he has an interest in immediate publication which overrides the interest of the plaintiff not to be injured by the publication. The court is also concerned with the public interest in upholding the right of free speech. As Coleridge CJ said at p 284 in Bonnard v Perryman [1891] 2 Ch D 269 where justification was pleaded:

   .... it is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.

   In England, therefore, the grant of an interim injunction in such circumstances is not only an usurpation of the function of the jury but against the public interest that the right to speak the truth be unfettered.

8. In my view, there is neither principle nor authority to suggest that the absence of a jury in a defamation trial affects the rationale of the established principle. In such a situation, the judge assumes the role of the jury in determining whether the words used are defamatory or, where justification is pleaded, whether the defendant has made out such a defence. But, until the action is tried, the judge is in exactly the same position as a jury, in a trial where there is a jury. Like a jury, a judge is also in no position to say whether the defence has been established until he has heard all the evidence. But, even assuming that the jury point has some merit, the public interest in maintaining the right of free speech is in itself a sufficient reason to justify the denial of prior restraint where the defendant intends to justify the truth of his statements: see Oliver J in Bestobell Paints v Bigg [1975] FSR 421, at p 430 et seq. The plaintiff has not made out a case for this court not to follow the English authorities. I should add that where, as is the case of Singapore, freedom of speech is a constitutional liberty, the case for applying the principle established by the English courts in such a case is a fortiori.

9. The application is dismissed with costs.

Cases

American Cyanamid v Ethicon [1975] AC 396; Bestobell Paints v Bigg [1975] FSR 421; Bonnard v Perryman [1891] 2 Ch D 269; Datuk Syed Kechik v Dato Yeh [1977] 1 MLJ 56; Herbage v Times Newspapers (The Times 1 May 1981); The New Straits Times Press v Airasia Bhd [1987] 1 MLJ 36

Legislations

Civil Law Act (Cap 43): s.3(a)

Representations

Harry Elias (Harry Elias & Partners) and SR Ng (Chow Peng & Partners) for the plaintiff.

Rama L Kasi (WT Woon & Co) for the defendant.