Case Law

Jeyaretnam Joshua Benjamin v Lee Kuan Yew
Jeyaretnam Joshua Benjamin v Lee Kuan Yew
[1992] 2 SLR 310; [1992] SGCA 27

  

Suit No:    CA 65/1990
Decision Date:    18 Apr 1992
Court:    Court of Appeal
Coram:    Chao Hick Tin J, L P Thean J, Yong Pung How CJ
Counsel:    Charles Anthony St John Gray QC and JB Jeyaretnam (JB Jeyaretnam & Co) for the appellant, David Eady QC and Tan Kok Quan (Lee & Lee) for the respondent


Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

             Judgment reserved.

LP Thean J (delivering the judgment of the court):

The facts

1         This appeal arises out of an action by the respondent, the secretary-general of a political party known as the People’s Action Party and the then Prime Minister of Singapore, against the appellant, the secretary-general of a political party known as the Workers’ Party, for slander based on the words spoken by the appellant at a political rally organized by the Workers’ Party on 26 August 1988 in the hustings for the General Election in 1988. The subject to which the words were addressed was the suicide of Teh Cheang Wan (“Teh”), who, prior to his death on 14 December 1986, was the Minister for National Development.

2         The background to the suicide of Teh is as follows. On 21 November 1986, the director of the Corrupt Practices Investigation Bureau (“the CPIB”) informed the respondent of a complaint of corruption against Teh, and the respondent gave instructions for discreet investigations to be carried out. Later, at the end of November, the CPIB sought, and the respondent gave, permission for the investigations to be carried out openly, and Teh and other persons were interrogated. On 2 December 1986, the respondent instructed Teh to take leave of absence until the end of the year. On 11 December 1986, the CPIB referred its investigation papers to the public prosecutor for him to consider whether or not to commence proceedings against Teh.

3         On 13 December 1986, Teh wrote to the respondent, setting out his response to the allegations of corruption. He protested his innocence and ended the letter with the following paragraph:

I am extremely sorry that matters have come to this stage where the reputation of the PAP government might be adversely affected. My error has been in wrongly trusting a friend who has made use of me for his own profit. I am willing to accept full responsibility for this. I would accept any decision which you may want to make.

4         Teh was found dead the next morning in his home. An undated handwritten note addressed to the respondent was found. The note read:

I have been feeling very sad and depressed for the last two weeks.

I feel responsible for the occurrence of this unfortunate incident and I feel I should accept full responsibility. As an honourable oriental gentleman I feel it is only right that I should pay the highest penalty for my mistake.

5         An autopsy was carried out on the same day and the cause of death was stated to be an overdose of amytal barbiturate. This was confirmed by a coroner’s inquest held on 20 January 1987 and the coroner returned a verdict of suicide.

6         On 26 January 1987, the respondent made a lengthy statement in Parliament on the investigations carried out by the CPIB following the complaint of corruption against Teh and on Teh’s suicide. In the statement, the respondent disclosed the contents of the two letters written to him by Teh. He also mentioned that no other person in the government or the civil service acted in concert with Teh in the alleged corrupt practices.

7         Both before and after that statement, there were calls for a public inquiry into the allegations against Teh. Among those calls was one made by the Workers’ Party in a press release on 27 January 1987. On 25 March 1987, the President of Singapore appointed a Commission of Inquiry. Its terms of reference did not cover Teh’s suicide and were confined to the allegations of corruption. The Commission reported on 18 December 1987. In brief, the Commission found that the CPIB had done all that was necessary in investigating the allegations against Teh and apart from Teh, no member of the government or the civil service had been involved in the alleged or other acts of corruption or criminal wrongdoing.

8         The allegations against Teh and his suicide attracted much press attention both in Singapore and abroad. In particular, a Malaysian newspaper, The Star, made certain allegations against the respondent, and the respondent took out a libel suit against them in Malaysia sometime in 1987.

9         In August 1988, Parliament was dissolved and a general election was called with polling day scheduled for 3 September 1988. The respondent and his political party, the People’s Action Party, stood for re-election. The appellant was barred from contesting the general election by virtue of a criminal conviction and sentence, but he actively campaigned on behalf of the Workers’ Party. On 25 August 1988, the appellant spoke at a rally at Fullerton Square (“the Fullerton Square rally”). Part of his speech touched on the respondent’s remarks at his National Day Rally speech earlier in the month on the importance of an honest government. The appellant accused the People’s Action Party government of not being honest, and cited instances which he alleged were examples of them misleading the people of Singapore. One of these instances related to Teh’s death. On the following evening, the appellant spoke at another rally at Bedok Town Centre car park No 6 to an audience of around 7,000 people. It was in that speech that he spoke the words complained of and which formed the subject matter of the slander action instituted by the respondent. The entire speech was fully recorded on video cassette tapes which were admitted in court as evidence. The text of his speech was not disputed, and a full transcript thereof was also admitted in evidence.

10       The earlier part of his speech, which is relevant to this appeal, was as follows:

… I have a number of serious things to say tonight. Yesterday when I spoke at Fullerton Square opening the PA, the Workers’ Party rally for this campaign, I posed a number of questions to the government leaders. I took up the Prime Minister’s statement that was made on National Day, I think, that the government was an honest government and that the voters should vote for an honest government. And I asked a number of questions bringing out specific instances and asked whether the government was honest … .

11       The appellant proceeded to deal with the questions he had asked at the Fullerton Square rally and matters arising therefrom, and then spoke the following words, which were the words complained of by the respondent:

Now the (pause) one of the other questions that I asked related to our late Minister, Mr Teh Cheang Wan (applause), the Minister of whom our beloved Prime Minister said where can we get another Teh Cheang Wan? (Applause) What I asked at the Fullerton Square rally yesterday was this. It was revealed at the coroner’s inquest, and this is another thing, why did we have to wait till the coroner’s inquest to be told that Teh Cheang Wan had committed suicide? It was revealed at the coroner’s inquest that Teh Cheang Wan committed suicide by taking poison. Well, as everybody in Singapore knows you can’t buy poison over the counter. (Applause) Under the Drugs Act or under the Poisons Act, a register is kept of all the chemists or pharmacists that deal with this drug, this poison and they have to record the persons to whom the poison was supplied and the name of the doctor who prescribed the poison. My question was why hasn’t the government conducted any inquiry to find out how Mr Teh Cheang Wan came by this poison, by these drugs? (Applause) Shouldn’t the people be told? I said it was essential for a government to tell the truth and nothing but the whole truth and not to hide anything. (Applause) Well, to this time there has been no response on that. Well I hope before polling day we will be told how Mr Teh Cheang Wan came by that poison. But I have one other question which I didn’t ask at Fullerton Square but I am going to ask tonight. (Applause) You may recall that it was reported in the Straits Times and that Teh Cheang Wan wrote to the Prime Minister, I think a day before his death, and I think the letter was also published. And if my memory serves me right and I think it does, Mr Teh Cheang Wan ended that letter by saying I am very sorry I will do as you advise. (Applause) My question to our Prime Minister from here tonight is this. Did he respond to that letter from Mr Teh Cheang Wan? And if he did respond what was his response? (Applause) I was not in Parliament then, but we said in our paper, the Hammer, that ministers must not be allowed to escape responsibility. And Cabinet bore the responsibility for the whole thing. And I said it was wrong to allow Mr Teh Cheang Wan to get away from answering his question and so we must know how is it that he came by his death. So I hope we will have answer to this question from the Prime Minister before polling day. (Applause)

12       The respondent complained that this part of the appellant’s speech contained grave slander on him. The respondent’s solicitors, on 31 August 1988, wrote to the appellant, setting out the words we have quoted and alleging that they constituted a grave slander on the respondent by implying that he was unfit for the office of Prime Minister. The solicitors, in their letter, alleged, among other things, that the appellant had said “Mr Teh Cheang Wan ended that letter by saying I am very sorry I will do as you advised”. The mention of the word “advised” was in error; the word used by the appellant was “advise”. The appellant replied on 1 September, denying that the subject words were defamatory, and at a political rally on 2 September 1988, the appellant returned to the theme of the subject words and repeated the question as to the source of the supply of the amytal barbiturate with which Teh committed suicide.

The action

13       On the same day, ie 2 September, the respondent commenced an action against the appellant, claiming that the subject words were calculated to disparage him in his office of Prime Minister and that he had been injured in his character, credit and reputation as such, and he accordingly sought damages and an injunction restraining further publication of the words. By para 4 of his statement of claim, as subsequently amended, the respondent pleaded that the subject words bore the following defamatory meaning:

The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff was guilty of dishonourable and/or criminal conduct in the discharge of his office as Prime Minister of the Republic of Singapore in that:

(i)         he had advised Mr Teh Cheang Wan (‘Mr Teh’) to commit suicide and/or when he knew that Mr Teh would or might commit suicide took no action to prevent Mr Teh from committing suicide, in order to avoid a full investigation into allegations of corruption against Mr Teh which investigation would have resulted in findings to the discredit or embarrassment of the plaintiff as Prime Minister and leader of the People’s Action Party and of the government of Singapore;

(ii)         he has failed to order an inquiry into how Mr Teh obtained the poison with which he committed suicide because the plaintiff had advised Mr Teh to commit suicide and/or when he knew that Mr Teh would or might commit suicide took no action to prevent Mr Teh from committing suicide in order to avoid a full investigation into allegations of corruption against Mr Teh which investigation would have resulted in findings to the discredit or embarrassment of the plaintiff as Prime Minister and leader of the People’s Action Party and of the government of Singapore.

14       Alternatively, the respondent pleaded that the words bore the above meanings by way of innuendo, and relied on the following particulars:

It has been widely known in Singapore, well before the defendant’s speech of 26 August 1988, that Teh Cheang Wan had been accused, shortly before his death, of receiving corrupt payments. Those allegations had received widespread media coverage and had been the subject of a Commission of Inquiry whose report was sent to His Excellency the President on 18 December 1987. The fact that the allegations had been made would thus have been familiar to all, or at least the overwhelming majority, of those who heard the speech.

15       By his defence, as subsequently amended, the appellant denied that the words complained of were defamatory. The appellant averred that on a fair and proper reading of the words complained of, there was no imputation made against the respondent, and that the appellant merely asked questions seeking information on and concerning a matter of public interest from the respondent in his capacity as Prime Minister and as representing the government on the basis of facts which were indisputable, and he set out various particular facts in support. On that basis, he pleaded that he was exercising the constitutional right of free speech guaranteed by art 14(1) and (2) of the Constitution of the Republic of Singapore (“the Constitution”) in good faith and without malice, and this right included a right to information in relation to matters of public concern, and the appellant was entitled to inquire of the respondent in his capacity as Prime Minister in relation to those facts. In effect, the appellant was raising a plea of qualified privilege based on art 14(1) and (2) of the Constitution. In the alternative, the appellant pleaded that the words used were fair comment made in good faith and without malice upon a matter of public interest, namely, the need in Singapore for frank and open government.

16       By his reply, as subsequently amended, the respondent joined issue with the appellant on his defence and averred that the publication was made with malice.

17       The action was tried before Lai Kew Chai J. On the first day of the trial, Mr Martin Thomas, then counsel for the appellant, applied for the learned judge to disqualify himself on the ground of apparent bias. This application was rejected, and the trial proceeded. By his judgment given on 3 August 1990, reported in [1990] 3 MLJ 322, the learned judge found that the words complained of bore the defamatory meaning as pleaded by the respondent, although he did not specify which of the two particular meanings (as pleaded) they bore. He held that the defence of fair comment failed as the imputations conveyed by the words were factual in character. He further held that the defence of qualified privilege based on art 14 of the Constitution also failed. He accordingly found the appellant liable, and he awarded the respondent $260,000 in damages with interest at 6% from the date of the writ and costs.

The issues

18       Against that decision this appeal has been brought. Before us, the following issues were raised (in the order as they were argued on behalf of the appellant):

(a)       whether the words complained of bore the defamatory meaning as held by the learned judge or any other defamatory meaning;

(b)        if the words bore a lesser defamatory meaning, whether the words were fair comment made in good faith and without malice upon a matter of public interest;

(c)       whichever meaning the words bore, whether the words were said on an occasion of qualified privilege based on art 14 of the Constitution;

(d)        whether the learned judge should have disqualified himself on the ground of apparent bias;

(e)       if the appellant is liable, whether the learned judge has misdirected himself in awarding the sum of $260,000 as damages or whether the sum awarded is manifestly excessive; and

(f)        lastly, whether interest on the damages ought to have been awarded.

Natural and ordinary meaning of the words

19       We now consider these issues seriatim. In determining the natural and ordinary meaning of the words complained of, the sense or meaning intended by the appellant is irrelevant. Nor for such purpose is the sense or meaning in which the words were understood by the respondent relevant. Nor is extrinsic evidence admissible in construing the words. The meaning must be gathered from the words themselves and in the context of the entire speech made by the appellant on that occasion. It is the natural and ordinary meaning as understood by reasonable members of the audience at the Bedok car park on that evening using their general knowledge and common sense. Such meaning is not confined to a literal or strict meaning of the words, but includes any inferences or implications which could reasonably be drawn by such persons: see para 4.04 of Duncan and Neill on Defamation (2nd Ed). The learned judge, in construing the words, said, at p 328:

The meaning to be elicited from it which this court as a decider of fact has to ascertain involves a process of construction which, in some ways, is peculiar to the law of defamation. So far as it is a question of fact, it does not involve the acuity of a lawyer in the construction of legal or commercial documents nor the imperviousness of a simpleton. The aim and object of the whole process of eliciting the meaning of the speech is to find out what an ordinary fair-minded person in Singapore who was in the audience that night and using his general knowledge and commonsense would understand by the words spoken in the context and according to the tone and mode of delivery.

20       In our opinion, the learned judge has adopted the correct approach in determining the natural and ordinary meaning of the words. He has also, as evident from the later part of his judgment (on p 329), excluded or disregarded as irrelevant the sense in which the words were intended by the appellant or understood by the respondent, and appreciated that a minute linguistic analysis of the words or phrases used is unlikely to reflect the impression formed by reasonable members of the audience. Adopting this approach, the learned judge found that the words complained of bore the meaning as pleaded by the respondent in his statement of claim. He said, at p 330:

I have viewed the video tapes and seen and heard what Mr Eady described as the ‘pregnant pauses’ and ‘waits for effect’. I entirely accept the force of the submissions of Mr Eady. In spite of the forensic efforts of Mr Thomas, it came through to me after listening to the speech that what the defendant was driving at was exactly what has been pleaded in para 4 of the statement of claim. The defendant was obviously suggesting that the plaintiff had encouraged or countenanced the suicide for the improper purpose of covering up what, in a full trial, would have been a scandal most embarrassing to the government and the PAP. That was the clear impression I formed after listening to the speech. It was confirmed by the second viewing of the video cassettes.

21       This finding was attacked by Mr Gray for the appellant. He drew our attention to para 4 of the statement of claim where two meanings of the words were pleaded in the alternative, and criticized the learned judge for not stating specifically which of the two meanings he had found. That omission, counsel submitted, was material as the first meaning was inconsistent with what the appellant said in his speech: the appellant had said that he did not know whether the respondent had responded to Teh’s letter. As for the second meaning, it was not defamatory of the respondent. The words simply meant that there were unanswered questions relating to the circumstances of Teh’s death and they demonstrated a lack of openness on the part of the government and such a meaning was not defamatory of the respondent personally. In the alternative, Mr Gray contended that if the words were defamatory, they bore a lesser defamatory meaning, and that it was this: that the respondent as the Prime Minister, on behalf of the government, had failed to answer or to find out the answers to a number of pertinent questions arising out of the suicide of Teh, including a question as to the communications passing between the Prime Minister and Teh shortly before the latter’s death, because the answers would or might reveal information which would damage the government, and in those circumstances the claim by the respondent that his government was open and accountable was less than truthful. This meaning, counsel contended, was the more natural meaning whereas the higher defamatory meaning contended on behalf of the respondent was conjectural and would only be understood by someone avid for scandal. It was conceded on behalf of the appellant that the lesser meaning was not put forward before the learned judge or pleaded in the defence. However, the appellant was not obliged to plead any meaning of the words complained of: Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at p 152.

22       Mr Gray then sought to demonstrate that the meaning found by the learned judge was untenable: the appellant asked three questions in his speech: (i) why were people not told, before the inquest, that Teh had committed suicide? (ii) why was no inquiry set up to find out how Teh obtained the poison with which he killed himself? and (iii) did the respondent reply to Teh’s letter, and, if so, in what terms? Nowhere in the appellant’s speech did the appellant expressly allege that the respondent had procured or culpably failed to prevent Teh’s suicide. Mr Gray accepted that people might read between the lines, but even on that basis, asking a question on the communications between the respondent and Teh was a far cry from asserting or even implying the criminal conduct on the part of the respondent which was implicit in the meaning contended on behalf of the respondent.

23       Mr Eady, for the respondent, submitted that the questions the appellant asked and the manner he asked them made it quite clear what the answers were, and those questions would have to be looked at in their proper context. A reasonable member of the audience would have considered that these questions were an attack on the respondent as Prime Minister and his government for not being as open and honest as the respondent had claimed. Mr Eady further submitted that the appellant, in referring to the concluding part of Teh’s letter to the respondent, misquoted what Teh had written. The appellant said: “Mr Teh Cheang Wan ended the letter by saying I am very sorry I will do as you advise.” That was not what Teh wrote. What Teh wrote was: “I would accept any decision which you may want to make.” Having misquoted Teh, counsel continued, the appellant asked the following questions: “Did he (the respondent) respond to the letter from Teh Cheang Wan? And if he did respond what was the response?” According to Mr Eady, these last questions had a new sinister connotation: the appellant was drawing the attention of the audience to the advice from the respondent which was sought for by Teh and was linking the advice to Teh’s suicide. The implication that could reasonably be drawn from these questions and the ensuing part of the appellant’s speech was that the respondent had advised Teh to commit suicide, or that he knew that Teh was going to commit suicide and did nothing to prevent it in order to avoid a full investigation into the allegations against Teh, which could result in findings to the discredit or embarrassment of the respondent as Prime Minister and leader of his party and the government of Singapore.

24       We now turn to consider whether the words complained of bore the meaning as contended on behalf of the appellant or that as contended on behalf of the respondent or some other meaning. In this connection, we agree with Mr Gray’s contention that the learned judge, with respect, was in error when he said, at p 329:

If the speech complained of does not bear the meaning asserted by the plaintiff in his statement of claim his claims must completely fail and the other issues raised in this trial would not require any further consideration. On the other hand, if the speech bears the meaning as claimed by the plaintiff, it is abundantly clear that applying the test of Lord Atkin set out in Sim v Stretch [[1936] 2 All ER 1237] at p 1240 it will be defamatory of the plaintiff.

25       It is usual for a plaintiff in a defamation action to plead the highest defamatory meaning of the words complained of and the court may well find a lesser defamatory meaning than that pleaded by the plaintiff. If such lesser defamatory meaning is found, the plaintiff’s claim will still succeed, unless there is some valid defence to the claim.

26       In determining the natural and ordinary meaning of the words complained of in this case, it is essential to bear in mind the following factors. Firstly, the words were part of a speech made by the appellant at a political rally and accordingly, must be construed in the context of the entire speech. Secondly, the members of the audience — there were some 7,000 present — did not have the speech in front of them to read and follow; it was made extempore by the appellant. In that connection, the intrinsic elements of the publication, eg the tone and mode of delivery, appearance of the appellant, his emphasis of various parts of the speech, and the deliberate or unavoidable pauses in between, obviously played an important part in the audience’s understanding of his speech and the nuances he attached to the expressions or words used, because the audience not only heard what the appellant spoke but also saw how the appellant spoke. Thirdly, a member of the audience, and in this respect we have to take an ordinary reasonable member — a fair-minded person “not avid for scandal” and “not unduly suspicious” — would have some general background knowledge of matters of public interest and, in particular, the following: that Teh in November and December 1986 was accused of corruption; that the respondent authorized the CPIB to conduct an open investigation on the allegations of corruption; that on 14 December 1986 Teh died; that one day before his death he communicated with the respondent in writing; that a coroner’s inquest was held and it was found that Teh committed suicide by taking amytal barbiturate which is a poison; that a Commission of Inquiry was appointed, and that the Commission found that no member of the government or the civil service was involved in the alleged or other acts of corruption. The member of the audience would also know that the respondent and his party had put forward at the forefront of the election campaign their record of an open and honest government.

27       We now turn to the speech and determine how a reasonable member of the audience, whom we shall call “the listener”, would understand it. We should mention that in this exercise we had viewed the video tape of the entire speech made by the appellant that evening, and had, through the video tape, heard what he spoke and saw how he spoke. At the early part of the speech, the listener heard the appellant taking issue with the respondent’s statement made around National Day that his government was an honest government and that the voters should vote for an honest government. The appellant said:

But, my friends, I have a number of serious things to say tonight. Yesterday when I spoke at Fullerton Square opening the PA, the Workers’ Party rally for this campaign, I posed a number of questions to the government leaders. I took up the Prime Minister’s statement that was made on National Day, I think, that the government was a honest government and that the voters should vote for an honest government. And I asked a number of questions bringing out specific instances and asked whether the government was honest. I see in today’s Straits Times, they pick up only one instance and that was what I called the deception of our people by the Prime Minister and the PAP leaders before we went into merger with Malaysia. But there were several other instances which the Straits Times have conveniently ignored. And I intend to take up one or two of these instances tonight because I believe one Mr Jayakumar is standing in this constituency. (Crowd jeered).

28       The listener would have realized at that stage that the appellant was launching an attack on the respondent and his claim of an honest government, and seeking to demonstrate one or two specific instances of what the appellant called deceptions of the people by the Prime Minister and the PAP leaders. The listener heard him dealing with the instances and the questions he had asked at the Fullerton Square rally.

29       The listener then came to the part of the speech complained of. He heard the appellant referring to the question he had asked at the Fullerton Square rally with reference to Teh, at which point the listener noted that there was an applause from the audience; the listener would have observed the slight sarcasm with which he referred to the respondent and Teh, and on that, further applause followed. The listener then heard the appellant relating that the coroner’s inquest revealed that Teh had committed suicide by taking poison and in the midst of that, the listener heard the appellant asking the question: “Why did we have to wait till the coroner’s inquest to be told that Teh Cheang Wan had committed suicide?” Following on, the listener heard that in Singapore it was not possible to buy poison over the counter and only chemists or pharmacists dealt with such drugs, and they had to record the person to whom they supplied the poison and the name of the doctor who prescribed the poison. Immediately following that, the listener heard the next question: “Why hasn’t the government conducted any inquiry to find out how Mr Teh Cheang Wan came by this poison, by these drugs?” The listener noted that to that question there was a loud applause from the audience which was then followed by another question, “Shouldn’t the people be told?” After that, the listener heard the appellant’s remark, again made with sarcasm, that it was essential for a government to tell the truth and nothing but the whole truth and not to hide anything; he further heard the appellant saying that up to that point of time there had been no response from the government. At that stage, it must have been obvious to the listener that the appellant was suggesting in clear terms, though in the form of questions, that there was a “cover-up” by the government of Teh’s suicide and of Teh obtaining the poison with which he killed himself. It must have been obvious to him also that these questions were directed towards attacking the government as an honest government. The listener would have known that these questions had been asked by the appellant earlier at the Fullerton Square rally, because the listener had been so reminded by the appellant in the earlier part of the speech.

30       The listener then heard the appellant saying that he was going to ask one more question which he did not ask earlier at the Fullerton Square rally, and heard, as a preamble to that question, the appellant’s narration that Teh, on the day before his death, wrote to the respondent and that in the concluding part of his letter, Teh said: “I am very sorry I will do as you advise.” At that point there was a loud applause for the appellant, presumably for having referred to that letter; at that point also the appellant paused — that was a deliberate pause. Immediately following that, the listener heard the appellant saying: “My question to our Prime Minister from here tonight is this. Did he respond to that letter from Mr Teh Cheang Wan? And if he did respond, what was his response?” Upon these questions being asked, there was again a loud applause. The listener, at that stage, would have formed the impression, from the way in which the appellant asked the questions and in the context of the earlier part of his speech, that the appellant suggested that the respondent must have responded to Teh. This impression was then reinforced by the appellant saying (immediately after the questions) the following:

I was not in Parliament then, but we said in our paper, the Hammer, that ministers must not be allowed to escape responsibility. And Cabinet bore the responsibility for the whole thing. And I said it was wrong to allow Mr Teh Cheang Wan to get away from answering his question and so we must know how is it that he came by his death.

31       To the listener, the last two questions and the statement immediately following would suggest that the respondent must have advised Teh, because the appellant linked the advice to Teh’s suicide that followed, and would further suggest that Teh was allowed to have access to the poison with which he killed himself, and thus was allowed to escape an investigation, which would result in findings adverse to the respondent and his government.

32       In our judgment, to a reasonable listener present at the rally, and watching and listening to the appellant delivering his speech, the words complained of bore the following meaning: that there was a “cover-up” of the circumstances of Teh’s death, and particularly, his ways and means of obtaining the poison with which he killed himself; that the government was not such an open and honest government as the respondent and his party claimed to be; that on the day before Teh died, he had sought advice from the respondent; that the respondent must have advised him and that advice had something to do with his death, because following that, Teh committed suicide by taking poison; that Teh was allowed to have access to the poison; that the respondent was involved in Teh obtaining the poison, and that Teh was thereby allowed to escape a full investigation which would have resulted in findings discreditable or embarrassing to the respondent as Prime Minister and leader of his party and of the government of Singapore. This meaning, we have found, is not exactly the same as that found by the learned judge.

33       We now turn to the question whether the words complained of are defamatory of the respondent. In the natural and ordinary meaning, we have found, the words are undoubtedly defamatory of the respondent; they impute dishonourable and discreditable conduct and disparage him in his office as Prime Minister and tend to bring him into public odium and contempt, and lower him as such in the estimation of right-thinking people in Singapore.

Fair comment

34       We now come to the next issue: the defence of fair comment. Mr Gray conceded that if the words bore the meaning found by the learned judge, the defence of fair comment would not avail the appellant, as it was not part of his case that the words were fair comment in that meaning. In view of what we have found as the natural and ordinary meaning of the words, equally the defence of fair comment is not available to the appellant. The words were not comment but imputation of facts.

35       At any rate, assuming that the words complained of, in the meaning as found by us, were comments, the defence of fair comment would still fail. An essential requirement for the success of the defence of fair comment is that the comment must be based on facts and those facts are true. In Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1, at p 3, Lord Ackner, delivering the judgment of the Board, said:

It is of course well established that a writer may not suggest or invent facts and then comment upon them, on the assumption that they are true. If the facts upon which the comment purports to be made do not exist, the defence of fair comment must fail. The commentator must get his basic facts right. [emphasis added]

36       In London Artists Ltd v Littler [1969] 2 QB 375 (which was referred to by Lord Ackner), one of the defences raised by the defendant to a claim for damages for libel was fair comment. In dealing with this defence, Lord Denning MR said, at p 391:

In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are based or from which the inferences are drawn — as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 345; but he must get them right and be ready to prove them to be true.

37       Later, having held that the words there complained of were not comment but statement of facts, he said, at p 392:

In case, however, I am wrong about this and it could be regarded as comment, then I turn to the third point, which is this: were there any facts on which a fair-minded man might honestly make such a comment? I take it to be settled law that, in order for the defence of fair comment to be left to the jury, there must at least be a sufficient basis of fact to warrant the comment, in this sense, that a fair-minded man might on those facts honestly hold that opinion. [emphasis added]

38       In this case, for the purpose of the comments, the only facts established are:

(a)       Teh was a member of the Cabinet of which the respondent was the head, and Teh committed suicide on 14 December 1986.

(b)      The respondent received a letter from Teh on the day before his death in which the latter concluded: “I am willing to accept full responsibility for this. I would accept any decision which you may want to make.”

(c)       The respondent did not make any public announcement to the effect that he had not replied to the letter of 13 December 1986 from Teh.

(d)      The availability of the poison, amytal barbiturate, to individuals is controlled and regulated in Singapore, and in ordinary circumstances, Teh could not have access to it.

(e)       The respondent did not set up or seek to set up an inquiry into the question of how Teh obtained the poison.

39       These facts by themselves are not sufficient to form the basis on which a fair-minded person could honestly make a comment in the form of the words complained of. The defence of fair comment therefore fails.

Qualified privilege

40       We now turn to the third issue: the defence of qualified privilege founded on art 14 of the Constitution of Singapore. Article 14, in so far as relevant, provides:

(1)         Subject to clauses (2) and (3) —

(a)   every citizen of Singapore has the right to freedom of speech and expression;

(b)   …

(c)   …

(2)         Parliament may by law impose —

(a)   on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

    …

41       It is relevant to set out also art 162 of the Constitution which is as follows:

Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.

42       Mr Gray mounted a very elaborate and careful argument for a qualified privilege and developed it in this way. First, he set out the factual matrix. The respondent sued in his capacity as secretary-general of a political party and as Prime Minister, and the complaint relates to words spoken by a political opponent who was the secretary-general of a rival party. The subject matter of the speech was political, namely, criticism of the conduct of the respondent (then a candidate in the forthcoming election) in his capacity as Prime Minister in relation to a Cabinet colleague, and bore on an issue of major public interest. The audience to whom the appellant addressed his speech were voters in the forthcoming election. Next, Mr Gray referred us to art 14(1) which confers the right of freedom of speech and expression on every citizen and this right is only subject to art 14(2)(a) which empowers Parliament to pass legislation restricting such right. Such constitutional provision, he submitted, should be given a generous and purposive construction: Attorney General of Gambia v Momodou Jobe [1984] AC 689 at p 700 and Ong Ah Chuan v PP [1981] 1 MLJ 64. Further, under art 162, all existing laws, both common law and statutes, must be construed “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution”. It therefore follows, so Mr Gray submitted, that pre-existing laws including the Defamation Act (Cap 75) may require “reformulation” to take account of the recognition in the Constitution of the right of freedom of speech and expression.

43       By way of comparison, Mr Gray drew our attention to constitutional provisions guaranteeing freedom of speech in other jurisdictions, such as Canada, India and the United States of America, and also art 10 of the European Convention on Human Rights, and sought to show how these jurisdictions reconcile the right of free speech with constraints imposed by the law of defamation. He further submitted that as the Constitution confers a right of free speech, a speech made by a politician in the context of a political debate deserves the greatest degree of protection and “unconstrained political debate is the life-blood of the democratic process”, and such protection is not limited to statements made in Parliament (for which there is absolute privilege), but extends to all comments on government, ministers and officers of state because it is in the public benefit that such comment should be freely made. In support, he cited extensively authorities from various jurisdictions. In particular, two leading cases were heavily relied upon, namely, the decision of the United States Supreme Court in New York Times Co v Sullivan (1964) 376 US 254 and the decision of the European Court of Human Rights in Lingens v Austria (1986) 8 EHRR 407. On the basis of these authorities, Mr Gray submitted that in order to give effect to art 14, the right to sue for defamation has to be curtailed, and such curtailment has been accepted in other jurisdictions. In particular, these authorities suggest that qualified or conditional privilege attaches to publications critical and defamatory of the official acts of politicians and those in public positions because it is the common interest of all citizens to have unconstrained political debate and effective democracy.

44       Relying on the authorities cited, Mr Gray formulated his plea of qualified or conditional privilege as follows: qualified privilege attaches to defamatory publications concerning public officials (or candidates for a public office) relating to their official conduct or the performance of their public duties by those who have an honest and legitimate interest in the matter to those who have a corresponding and legitimate interest (whether as electors or as citizens potentially affected by the conduct of public officials). Reverting to the facts of the case, Mr Gray submitted that the speech made by the appellant was a publication concerning the official conduct of the respondent as Prime Minister or the performance of his duties as such; that the appellant had a legitimate interest in the subject matter of his speech, and that the publication was made to those having a corresponding and legitimate interest, and hence the occasion in which the publication was made was privileged.

45       In response, Mr Eady pointed out that the respondent did not sue in his capacity as secretary-general of a political party and as Prime Minister, but in his personal capacity; the respondent complained that the words disparaged him in his office as Prime Minister. Counsel argued that no qualified or conditional privilege existed on such occasion. The privilege contended on behalf of the appellant gave rise to a defence analogous to that applied by the Supreme Court of the United States in New York Times Co v Sullivan. But, counsel submitted, the terms of our art 14(1) differ fundamentally from those of the First Amendment of the Constitution of the United States. The structure and policy underlying art 14 provides expressly that freedom of speech and expression is not absolute but subject, inter alia, to the law of defamation. He relied on Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1990] 2 MLJ 65 and Lee Kuan Yew v Chin Vui Khen [1991] 3 MLJ 494. In Singapore, so he submitted, public policy has determined that a balance between free speech, on the one hand, and the right of the individual to protect his reputation, on the other, is to be struck differently from that in the United States. He further submitted that there is no authority either in England or Singapore to suggest that citizens should be categorized differently and accorded different rights in law, depending on whether they are “public figures” or persons holding public offices; all persons, whether they be public figures or not, are entitled to have their reputation protected by the law of defamation.

46       We have considered the authorities cited by Mr Gray. All of them, except for two cases which we shall discuss in a moment, are essentially dicta from judgments on freedom of speech in different jurisdictions and have no relevance to the issue before us. The two cases which can be said to lend some support to Mr Gray’s formulation of qualified privilege are New York Times Co v Sullivan, and Lingens v Austria, to which we now turn.

47       In New York Times Co v Sullivan, an elected official in Montgomery, Alabama, brought a suit in a state court against the defendant, alleging that he had been libelled by an advertisement appearing in the latter’s newspaper. The advertisement contained certain statements which were false. At the trial before the state court, a jury, after direction by the trial judge, found for the official and awarded him damages in the sum of US$500,000. On appeal, the finding was affirmed by the State Supreme Court. On further appeal, the Supreme Court of the United States held that under the First and Fourteenth Amendments of the Constitution of the United States, damages could not be awarded to a public official for defamatory falsehood relating to his official conduct unless actual malice was proved, ie the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false, and that the First and Fourteenth Amendments protected libellous publications of official conducts of officials in the absence of actual malice. The First Amendment provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

and the Fourteenth Amendment, in so far as relevant, provides:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

48       Brennan J, in delivering the opinion of the court said, at p 264:

We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

49       Later, he said, at p 268:

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this court to the effect that the Constitution does not protect libellous publications. Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. … In Beauharnais v Illinois, 343 US 250, the court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and ‘liable to cause violence and disorder’. But the court was careful to note that it ‘retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel’; for ‘public men, are, as it were, public property’, and ‘discussion cannot be denied and the right as well as the duty, of criticism must not be stifled’. Id, at pp 263–264, and n 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the court was equally divided and the question was not decided. Schenectady Union Pub Co v 4 Sweeney, 316 US 642.

50       The learned judge then referred to and considered other cases cited and, at p 270, said:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v Chicago, 337 US 1, 4; De Jonge v Oregon, 299 US 353, 365.

51       The learned judge went on to hold, inter alia, as follows. The constitutional protection of free speech did not turn on the truth of the publication and erroneous statement was inevitable. He said (at p 272): “Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does of factual error.” Fear of an award of damages in civil suits would inhibit the freedom under the First Amendment. The defence of justification under Alabama state law was not sufficient protection of those freedoms. Such a rule dampened “the vigor” and limited “the variety of public debate” and was “inconsistent with the First and Fourteenth Amendments”. Brennan J referred to, inter alia, the Kansas case of Coleman v MacLennan 78 Kan 711 where the State Attorney General sued a newspaper publisher for alleged libel in an article purporting to state certain facts relating to his official conduct and the defendant pleaded the defence of privilege. The trial judge directed the jury that the publication was privileged unless the Attorney General succeeded in proving actual malice. This direction was upheld by the Supreme Court of Kansas. Brennan J (at p 281) quoted with approval the following passage from the opinion of the court delivered by Burch J:

It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.

and held that such privilege attached to criticism of official conduct and was required by the First and Fourteenth Amendments. The effect of this decision is that the freedom of speech under the First and Fourteenth Amendments, in so far as the law of defamation is concerned, extends to publication of anything, including false and defamatory matters, of or concerning a public official or a politician in respect of his official conduct or performance of his duties unless actual malice on the part of the publisher is proved.

52       The next case is Lingens v Austria. There, the publisher of a magazine in Vienna printed two articles critical of the Austrian Chancellor and accusing him of protecting former members of the Nazi SS for political reasons. The Chancellor brought private prosecutions and the publisher was convicted. The publisher then applied to the European Court of Human Rights, complaining of a violation of art 10 of the European Convention on Human Rights. Article 10 provides:

1         Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

2         The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

53       The court held that the conviction of the publisher infringed the freedom of opinion which was part of art 10 of the Convention. The court said, at pp 418–419:

41         In this connection, the court has to recall that freedom of expression, as secured in para 1 of art 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self fulfilment. Subject to para 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In this connection, the court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.

42         Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt art 10(2) enables the reputation of others that is to say, of all individuals — to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.

54       Having propounded these principles, the court went on and found that the case concerned the Chancellor in his capacity as a politician and held that the publication must be considered against the background of a post-election political controversy. The court then found that the observations complained of were “value judgments”, ie opinions or comments, made by the publisher. The court said, at pp 420–421:

The defendant had submitted that the observations in question were value judgments made by him in the exercise of his freedom of expression. The court, like the Commission, shares this view. The applicant’s criticisms were in fact directed against the attitude adopted by Mr Kreisky, who was Federal Chancellor at the time. What was at issue was not his right to disseminate information but his freedom of opinion and his right to impart ideas; the restrictions authorized in para 2 of art 10 nevertheless remained applicable. …

In the court’s view, careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The court notes in this connection that the facts on which Mr Lingens founded his value judgments were undisputed, as was also his good faith.

Under para 3 of art 111 of the Criminal Code, read in conjunction with para 2, journalists in a case such as this cannot escape conviction for the matters specified in para 1 unless they can prove the truth of their statements.

As regards value judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by art 10 of the Convention.

55       The court thus held that the offensive passage in the article was an expression of “value judgments” concerning the conduct of a politician, that the press had the task of imparting such “information” and “ideas” on “political issues”, and the public has the right to receive them and that the publication was therefore protected by art 10 of the Convention.

56       We are unable to follow either of these decisions. The terms of art 14 of our Constitution differ materially from the First and Fourteenth Amendments of the Constitution of the United States and also from art 10 of the European Convention on Human Rights. The First Amendment, by its express terms, prohibits Congress from making any laws “abridging the freedom of speech, or of the press”. The Fourteenth Amendment extends the prohibition to state legislatures. No such express prohibition is found in art 14 of our Constitution. On the contrary, the right of free speech and expression under cl 1(a) of art 14 is expressly subject to cl 2(a) of the same article, and the latter provides that Parliament may by law impose on the rights of free speech and expression conferred by cl 1(a) two categories of restrictions: first, such restrictions as it considers necessary and expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality; and second, restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence. While the first category of restrictions must satisfy the test of necessity and expediency in the interest of the various matters specified therein, the second category of restrictions is not required to satisfy any such test. Thus, Parliament is empowered to make laws to impose on the right of free speech restriction designed to provide against defamation. As for art 10 of the European Convention on Human Rights, it is true that the wording in para 1 thereof is similar to cl 1(a) of art 14. However, para 2 of art 10 is in no way similar to cl (2) of art 14: para 2 provides that the exercise of the freedom under para 1 is subject to “restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others ...”. Clearly, the terms allowing restrictions to be imposed under art 10(2) are not as wide as those under art 14(2).

57       In addition, we have art 162 of the Constitution under which all existing laws continue in force on and after the commencement of the Constitution, and the term “law” under art 2 includes “the common law in so far as it is in operation in Singapore”. The common law of defamation as modified by the Defamation Act (then the Defamation Ordinance) was in operation at the time of commencement of the Constitution, and by virtue of art 162 it continues in force. The question then is whether, as required by art 162, any modification, adaptation, qualification and exception is necessary to be made to the law of defamation so as to bring it into conformity with the Constitution. We think not. The law of defamation is not inconsistent with the right of free speech under art 14(1)(a) and accordingly, no such modification, adaptation, qualification and exception is necessary to be made thereto.

58       We are reinforced in our view by the circumstances in which the Defamation Act became part of the law of Singapore. It originated from Malaysia. On 1 July 1957, the Federation of Malaya enacted the Defamation Ordinance. The preamble states that it is a consolidating and amending ordinance, and it is clear from the terms of the ordinance that it is premised on the existence and continuation of the common law of defamation. The Federation of Malaysia incorporating Singapore as a constituent state came into legal existence by virtue of the Malaysia Act (Act 26 of 1963) which came into force on 16 September 1963, and the existing Federal Constitution as modified by the Act became the Constitution of Malaysia. Sections 73 and 74 of the Act governed the position of pre-Malaysia laws: s 73 provided for the continuation of those laws as though the Malaysia Act had never been passed, and s 74 gave to the Yang di-Pertuan Agong the power to order such modification to the pre-Malaysian laws as appeared necessary or expedient. The power to modify included the power to extend existing laws to, inter alia, Singapore. At that time, the Constitution governing and applicable to Singapore (which was a constituent state of Malaysia) was the Constitution of Malaysia, and art 10 thereof provided for freedom of speech and expression in terms which, in all material respects, were identical with art 14 of our Constitution. By the Modification of Laws (Defamation) (Modification and Extension to Borneo States and Singapore) Order 1965 made pursuant to s 74 of the Malaysia Act, the Defamation Ordinance 1957 was extended to Singapore on 22 February 1965. The extension also repealed the then Defamation Ordinance 1960 of Singapore. It was therefore intended by the Malaysian Parliament, acting by the Yang di-Pertuan Agong, that the common law of defamation, as modified by the Defamation Ordinance 1957, should continue to apply in Singapore where the right of free speech was guaranteed by art 10 of the Constitution. On separation, the Republic of Singapore Independence Act 1965 provided for the continuation of most of the articles of the Malaysian Constitution, including arts 10 and 162, and also the continuation of the laws existing at the time of independence as the Constitution and laws of Singapore. The present art 14 (with necessary modification) is art 10 of the Malaysian Constitution. Thus, against this background of the development of our Constitution, it is implicit that the right of free speech under art 14 is subject to the common law of defamation as modified by the Defamation Ordinance, now the Defamation Act (Cap 75) (“the Act”).

59       It has been decided by this court in Jeyaretnam Joshua Benjamin v Lee Kuan Yew that the right of free speech under art 14 is subject, inter alia, to the common law of defamation as modified by the Defamation Act (Cap 75, 1965 Ed). That was an appeal against the decision of the High Court on an interlocutory application made in this same action. The appellant applied for leave to amend the defence by pleading that this action sought to restrict the appellant’s right under art 14(1) and was therefore an unlawful interference of his fundamental rights, and for that reason the action was not maintainable. The High Court dismissed the application, and on appeal, that decision was affirmed by this court. Wee Chong Jin CJ, delivering the judgment, said, at p 65:

The constitutional right of freedom of speech and expression is unarguably restricted by the laws of defamation. Article 14(1)(a) is subject to cl (2), which provides that ‘Parliament may by law impose — (a) on the rights conferred by cl (1)(a) … restriction … to provide against … defamation …’. The relevant enactment is the Defamation Act (Cap 75). In addition, by enacting the Defamation Act, which was enacted by the Malaysian Federal Parliament as Act 20 of 1957 and was extended to Singapore (by way of modification) pursuant to s 74 of the Malaysia Act 1963 in May 1963, the legislature has clearly intended that the common law relating to defamation, as modified by the Act, should continue to apply in Singapore. The Act is premised on that underlying assumption and has to be read against matrix of the common law. Moreover, the definition of law in art 2(1) of the Constitution includes ‘the common law in so far it is in operation in Singapore’. In our view, it is manifestly beyond argument that art 14(1)(a) is subject to the common law of defamation as modified by the Act and, accordingly, does not, in itself, afford a defence.

60       Across the causeway, the High Court in Malaysia has expressed a similar opinion: see Lee Kuan Yew v Chin Vui Khen, at pp 502–503.

61       It therefore cannot be disputed that the freedom of speech and expression provided in art 14 is not absolute or totally unrestricted. Certainly Mr Gray is not disputing this, and is not contending that the appellant under art 14 has the right to say “anything”. An absolute or unrestricted right of free speech would result in persons recklessly maligning others with impunity and the exercise of such a right would do the public more harm than good. Every person has a right to reputation and that right ought to be protected by law. Accordingly, a balance has to be maintained between the right of free speech on the one hand, and the right to protection of reputation on the other. The law of defamation protects such right to reputation, and, as we have shown, it was undoubtedly intended by the framers of our Constitution that the right of free speech should be subject to such law.

62       Both the decisions in New York Times and in Lingens were premised on the proposition that the limits of acceptable criticism of persons holding public office or politicians in respect of their official duties or conduct are wider than those of ordinary persons. In our judgment, our law is not premised on such a proposition. Persons holding public office or politicians (we call them “public men”) are equally entitled to have their reputations protected as those of any other persons. Such persons, in the discharge of their official duties, are laying themselves open to public scrutiny both in respect of their deeds and words. In that respect, criticisms in relation to their official conduct may be “robust” and “wide-open” and may include “vehement, caustic and sometimes unpleasantly sharp attacks”. Nevertheless, such criticisms or attacks must, in our opinion, respect the bounds set by the law of defamation, and we do not accept that the publication of false and defamatory allegations, even in the absence of actual malice on the part of the publisher, should be allowed to pass with impunity. The law of defamation protects the public reputation of public men as well. In Campbell v Spottiswoode (1863) 32 LJ QB 185, at p 200, Cockburn CJ said:

You have a perfect right to criticize a man’s public conduct; you may denounce its impolicy; you may denounce its folly; you may denounce its absurdity; you may point out the mischievous consequences which will result from it. The writer might have pointed out, in this instance, that the effect of the subscriptions which Dr Campbell was asking the public to contribute would only be to put money into his pocket; but to go beyond that, and to say that he is actuated only by the desire of putting money into his pocket, and that he resorts to fraudulent expedients and contrivances to effect that object — that is charging him with direct dishonesty — and that, I think is further than any one has a right to go. It has been said in argument that it is for the interest of society that a man’s public conduct shall be criticized without any limit, except that which it is admitted on all hands must be imposed — namely, that the writer must only write according to what he thinks just and true. But, it seems to me that the public at large have an equal interest in the maintenance of public character, without which public affairs could never be conducted with a view to the welfare and the best interests of our country; and I think that we ought not to sanction attacks upon public men, which if allowed would be destructive of their character and honour, unless such attacks are well founded.

63       About a hundred years later, the Saskatchewan Court of Appeal adumbrated the same principle, but in different language, in the case of Tucker v Douglas [1950] 2 DLR 827, where the court held that no privilege attached to speeches made at a political public meeting. Gordon JA, in delivering the judgment of the court, said, at p 840:

The suggestion that a public man can be slandered or libelled in his public capacity is entirely without foundation. We quote from the judgment of the late Mr Stuart J in the case of Sheppard v The Bulletin (1916) 27 DLR 562 at pp 564–565: ‘It seems to me, moreover, that it must have been something of this kind that the editor had in mind when, in the article of November 28 and in the article apologizing, he drew a distinction between the plaintiff ‘personally’ and the plaintiff as an ‘alderman’. This latter distinction is of course a fallacious one because it is just as libellous to say that a man in his capacity of alderman knowingly and intentionally encouraged and protected vice and crime as it is to say it of any private person. It is fallacious to say that any man leaves behind his personal character when he enters public life by accepting an office of honour, or that he can be safely though untruthfully accused of dishonesty and corruption merely because it can be pleaded that he was being referred to in his capacity as a public man. A man’s moral character is the same whether in private or public life and is in either case equally entitled to the protection of the law from the libellous attacks.

64       The learned editors of Gatley on Libel And Slander (8th Ed), in a footnote to para 488 at p 206, after referring to the extensive privilege existing in the United States since the decision in New York Times Co v Sullivan, said:

It is, however, submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility, and leave them open to others who have no respect for their reputation.

65       This passage received judicial approval from the Supreme Court of Canada in The Globe and Mail Ltd v John Boland [1960] SCR 203, at p 208, where in an action for libel against a newspaper the defence of qualified privilege was rejected. Cartwright J, in delivering the judgment of the court, said, at p 208:

To hold that during a federal election campaign in Canada any defamatory statement published in the press relating to a candidate’s fitness for office is to be taken as published on an occasion of qualified privilege would be, in my opinion, not only contrary to the great weight of authority in England and in this country but harmful to that ‘common convenience and welfare of society’ which Baron Parke described as the underlying principle on which the rules as to qualified privilege are founded. See Toogood v Spyring (1834) 1 CM&R 181 at p 193, 149 ER 1044. It would mean that every man who offers himself as a candidate must be prepared to risk the loss of his reputation without redress unless he be able to prove affirmatively that those who defamed him were actuated by express malice. I would like to adopt the following sentence from the judgment of the court in Post Publishing Co v Hallam (1893) 59 Fed 530 at 540:

We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good.

and the learned judge then quoted the passage from Gatley which we have set out.

66       We now turn to examine the qualified or conditional privilege as formulated by Mr Gray. He conceded that he was not arguing that the appellant had a right to say “anything” about a public man or to make any statement to “the world at large”. The privilege, he contended, as applied to the facts of the instant case, is this. The appellant made his speech at a political rally; he spoke on matters touching the official conduct of the respondent and his Cabinet in relation to the suicide of Teh and in such matters he, the appellant, had a legitimate interest, and that speech was addressed to an audience who had a corresponding and legitimate interest. Such an occasion was therefore privileged. An examination of the authorities does not support such a claim of privilege. Two clear and concise statements directly on the point came from two distinguished Australian judges, Dixon and Evatt JJ, in Lang v Willis (1934) 52 CLR 637 who both held, obiter, that election speeches made to a large audience of unidentified persons are not privileged even though matters of general interest to the electors are dealt with therein. Dixon J said, at p 667:

In the Supreme Court (of New South Wales) counsel for the defendant, upon the new trial motion, submitted that the publications complained of were privileged. The proposition appears to me to be untenable that election speeches made to a large audience of unidentified persons are privileged because the speaker deals with matters in which the electors have an interest.

67       Similarly, Evatt J said, at p 672:

One further matter: I disagree with the opinion expressed in the Supreme Court that the facts proved showed that the occasions of all seven speeches were ‘unquestionably privileged’ (Maxwell AJ). Of course it is possible that a privileged occasion will arise in relation to a speech at a public or an election meeting. But the common law warrants no such general doctrine of privilege as was here asserted on behalf of the defendant, and apparently by the majority of the Full Court. The general question of privilege I had occasion to discuss in the recent case of Telegraph Newspaper Co v Bedford (1934) 50 CLR 632. In my opinion the theory that privilege attaches to every occasion upon which speakers at election meetings choose to broadcast before large gatherings opinions or information about one or other of the candidates cannot be supported.

68       There are also two Canadian authorities which established the same point. The first is Tucker v Douglas which was a case of slander and libel arising out of a political speech made by the defendant prior to an election and the publication thereof in a local newspaper. One of the issues raised was whether the occasion was privileged. It was held by the Saskatchewan Court of Appeal that no privilege arose on the occasion of a political public meeting. Gordon JA, in his judgment in dealing with the trial judge’s direction to the jury on the question of privilege, said, at pp 839–840:

With every respect we are of the opinion that such a charge (ie the direction) was not only misleading but was entirely wrong. We cannot do better than to quote from the judgment of Martin JA given in the case of Bureau v Campbell [1928] 3 DLR 907 at pp 931–932, 23 SLR 79 at p 105 where he states as follows:

The contention that a political public meeting is a privileged occasion is one which is too broad for consideration, and one which I have never heard seriously put forward before; moreover no authority can be found for any such proposition. Persons addressing public meetings should exercise care in what they say about opponents, and this applies to candidates seeking election as well as to other members of the community. How can it be said that a candidate seeking election as a member of Parliament has an interest or a duty, legal, social or moral, to make defamatory statements to an audience, and that the persons comprising the audience have a corresponding interest or duty to receive such statements?

There is no reciprocity of interest between the candidate and the hearers at the public meeting. The candidate and those who speak for him are endeavouring by what they say to procure as many votes as possible, and may very well have a motive for attacking opponents and in making defamatory statements about them; but it cannot be said that there is any duty, legal, social or moral, to make such defamatory statements.

69       The case proceeded further on appeal to the Supreme Court of Canada: see [1952] 1 SCR 275. On appeal, one of the issues raised was whether qualified privilege attached to the publication of the defamatory matters in the newspaper. The court, following the decision in Duncombe v Daniell (1837) 8 C & P 222 held that whatever might be the extent of such privilege, it was lost if the publication was made in a newspaper. Cartwright J, delivering the judgment of the court, said at p 288:

The view that a defamatory statement relating to a candidate for public office published in a newspaper is protected by qualified privilege by reason merely of the facts that an election is pending and that the statement, if true, would be relevant to the question of such candidate’s fitness to hold office is, I think, untenable.

70       The next case is George Ernest Pascoa Jones v William Andrew Cecil Bennett [1969] SCR 277, in which the plaintiff brought an action for slander based on the words spoken by the defendant at a meeting of supporters of his political party. One of the defences raised was that the speech was made on an occasion of qualified privilege. The Supreme Court of Canada rejected this defence. Cartwright CJ, in dealing with the defence of qualified privilege, said, at p 284:

It involves the assertion that whenever the holder of high elective political office sees fit to give an account of his stewardship and of the actions of the government of which he is a member to supporters of the political party to which he belongs he is speaking on an occasion of qualified privilege. I know of no authority for such a proposition and I am not prepared to assent to it. I will assume for the purposes of this appeal that each subject on which the defendant spoke to the meeting was one of public interest. It is not suggested that at the date of the meeting an election was pending. The claim asserted by the defence appears to me to require an unwarranted extension of the qualified privilege which has been held to attach to communications made by an elector to his fellow electors of matters regarding a candidate which he honestly believes to be true and which, if true, would be relevant to the question of such candidate’s fitness for office. It is, of course, a perfectly proper proceeding for a member of the legislature to address a meeting of his supporters at any time but if in the course of addressing them he sees fit to make defamatory statements about another which are in fact untrue it is difficult to see why the common convenience and welfare of society requires that such statements should be protected and the person defamed left without a remedy unless he can affirmatively prove express malice on the part of the speaker.

71       It seems to us that an extension of the common law privilege to cover the situation contended by Mr Gray is inconsistent with the view Parliament has taken on publications in similar circumstances. Section 14 of the Act is as follows:

A defamatory statement published by or on behalf of a candidate in any election to Parliament or other elected or partially elected body shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election.

72       Parliament has thus legislated that the circumstances of a general election are not sufficient to give rise to an occasion of privilege even if the subject matter of the publication is material to an issue in the election. It is true that the section is limited to publications by or on behalf of a candidate in an election. But that is indicative of Parliament’s intention as to the scope of privilege to be attached to a speech made at an election, and the court should be slow to extend such privilege. This is particularly so having regard to the circumstances in which the Act became part of the law of Singapore. It is wholly untenable that the speech made by the appellant at the election rally on 28 August 1988 was privileged, when the same speech if made on the same occasion by or on behalf of the candidate for the election would not, under s 14 of the Act, be privileged. It cannot, therefore, be contended that on the basis of art 14 of our Constitution the common law privilege should be extended to speeches made at an election as contended on behalf of the appellant.

73       In our opinion, the appellant’s interest in the subject matter of his speech and the interest, if any, of the audience in the same subject matter are not enough, by themselves, to found the defence of privilege; there must also be present a legal, moral or social duty on his part to communicate the subject matter of his speech to the audience.

74       In the English case of Blackshaw v Lord [1984] 1 QB 1, one of the issues before the Court of Appeal was whether there was a common law qualified privilege attached to the article published in the Daily Telegraph newspaper, which was found to be libellous. The court held that to found such a defence, the publication must be made in pursuance of a legal, social or moral duty to persons having a corresponding duty or interest to receive it, and that the defence does not attach to defamatory publication on matters of public interest where there is no such duty. Stephenson LJ said, at pp 25–26:

The question here is, assuming Mr Lord recorded Mr Smith’s conversation with him fairly and accurately, did Mr Lord (and his newspaper) publish his report of that conversation in pursuance of a duty, legal, social or moral, to persons who had a corresponding duty or interest to receive it? That, in my respectful opinion, correct summary of the relevant authorities is taken from the report of the Committee on Defamation, para 184(a), repeated in Duncan & Neill, Defamation, para 14.01.

I cannot extract from any of those authorities any relaxation of the requirements incorporated in that question. No privilege attaches yet to a statement on a matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care.

75       Dunn LJ said, at p 35:

This review of the authorities shows that, save where the publication is of a report which falls into one of the recognized privileged categories, the court must look at the circumstances of the case before it in order to ascertain whether the occasion of the publication was privileged. It is not enough that the publication should be of general interest to the public. The public must have a legitimate interest in receiving the information contained in it, and there must be a correlative duty in the publisher to publish, which depends also on the status of the information which he receives, at any rate where the information is being made public for the first time.

76       Fox LJ said, at p 41:

I take the correct principle of common law privilege to be that stated by Buckley LJ in the Court of Appeal in Adam v Ward 31 TLR 299, 304:

if the matter is matter of public interest and the party who publishes it owes a duty to communicate it to the public, the publication is privileged, and in this sense duty means not a duty as a matter of law, but to quote Lindley LJ’s words in Stuart v Bell (7 TLR 502; [1891] 2 QB 341, 350) “a duty recognized by English people of ordinary intelligence and moral principle but at the same time not a duty enforceable by legal proceedings” … .

There is not, I think, anything in the speeches in the House of Lords in Adam v Ward [1917] AC 309, which is inconsistent with the formulation of Buckley LJ, and it was accepted and applied by Cantley J in London Artists Ltd v Littler [1968] 1 WLR 607, after a review of the authorities.

77       In our judgment, the defence of qualified or conditional privilege based on art 14(1) of the Constitution fails.

Apparent bias

78       We now turn to the issue of apparent bias. At the commencement of the trial before Lai Kew Chai J, Mr Martin Thomas, for the appellant, asked the learned judge to disqualify himself. The grounds of the application were:

(a)       that prior to his elevation to the Bench the learned judge was, for 13 years with Messrs Lee & Lee, the law firm founded by the respondent and of which the respondent’s wife and brother were senior partners;

(b)      that he presided at the Court of Appeal which dismissed the appeal of the appellant from a refusal of the Chief Justice to reserve questions of law under s 60 of the Supreme Court of Judicature Act (Cap 322), which decision was subsequently criticized by the Privy Council;

(c)       that he presided at the Court of Appeal which dismissed the appeal from the decision of LP Thean J refusing to transfer his retrial to the High Court, a decision also subsequently criticized by the Privy Council;

(d)      that he was the judge who heard and dismissed the appeal against the conviction of the appellant, and who, in dismissing it, varied the sentence by imposing a fine which, in effect, disqualified the appellant from continuing to sit as a member of Parliament.

79       It was not suggested by Mr Martin Thomas that the learned judge was biased. However, it was argued that there was a risk that a reasonable and fair-minded person with the knowledge of these facts would have reasonable suspicion that a fair trial would not be possible. The application was rejected by the learned judge. He held that no right-thinking person would think that he would be biased in trying the case before him. First, he had left Messrs Lee & Lee a long time ago and had nothing to do with the firm in any pecuniary or indirect sense, except that he dealt with matters which came before him in which that firm represented the parties concerned. Secondly, he did not consider that he had been overruled by the Privy Council, and even if he had been overruled, that could not be a ground to found any suspicion in the mind of any right-thinking person that he would be biased.

80       Before us, Mr Gray addressed the same arguments and submitted that Lai Kew Chai J should have disqualified himself. He relied on R v Liverpool City Justices, ex p Topping [1983] 1 All ER 490, at p 494, where Ackner LJ said:

In our view, therefore, the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias.

In the past there has also been a conflict of view as to the way in which that test should be applied. Must there appear to be a real likelihood of bias? Or is it enough if there appears to be a reasonable suspicion of bias? …

We conclude that the test to be applied can conveniently be expressed by slightly adapting the words of Lord Widgery CJ in a test which he laid down in R v Uxbridge Justices, ex p Burbridge (1972) Times, 21 June and referred to by him in R v Mclean, ex p Aikens (1974) 139 JP 261 at 266: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?

81       This test was approved in the subsequent case of R v Weston-super-Mare Justices, ex p Shaw [1987] 1 All ER 255.

82       Mr Eady did not challenge these authorities; he accepted that they laid down the correct test. But he submitted that the learned judge applied that test and was entitled to conclude on that basis that no reasonable or right-thinking person would consider the learned judge to be biased.

83       We respectfully accept the objective test as laid down in these cases and now turn to consider whether, on the grounds as contended by Mr Gray, a reasonable and right-thinking person sitting in court and knowing the relevant facts would have any reasonable suspicion that a fair trial for the appellant was not possible. Firstly, the fact that the learned judge was with the firm of Messrs Lee & Lee for 13 years cannot possibly be a ground for any right-thinking person to form the opinion that he was biased towards the respondent who was the founder of that firm. At the time of the trial, the learned judge had left the firm for about nine years, and had no pecuniary or any other interest in the firm. In the discharge of his judicial functions, the learned judge must have dealt with numerous cases in which that firm acted either for plaintiffs or for defendants. Many of our judges before their appointments were partners of law firms, actively engaged in practice as advocates and solicitors. After their appointments to the bench and after a lapse of a reasonable period of time, they deal with case after case in which their former firms represented either the plaintiffs or the defendants. No one has ever suggested that a reasonable and right-thinking person could or would have reasonable suspicion that in those cases the judges would be biased. Secondly, the fact that the learned judge presided at the Court of Appeal which dismissed appeals from decisions of the High Court, which decisions were criticized by the Privy Council, and that his own decision was also criticized by that appellate tribunal, again, cannot be a valid basis on which a reasonable and right-thinking person would entertain a suspicion of bias. A criticism or reversal of a judge’s decision by an appellate tribunal is part and parcel of our judicial system, and a reasonable and right-thinking person would expect the judge whose decision has been criticized or reversed to accept such criticism or reversal with judicial equanimity and would not be ill-disposed towards the litigant against whom he has given that decision and who subsequently appears before him. In our judgment, the learned judge has applied the correct test and was entitled to conclude on the basis of the objective test that no reasonable and right-thinking person would consider him to be biased.

Damages

84       We now turn to the issue of damages. The complaint is that in awarding the amount of damages, the learned judge has misdirected himself in several respects. Firstly, Mr Gray submitted that the learned judge was in error in taking into account the element of vindication: the learned judge held that the award of damages must be commensurate with the gravity of the slander, if it was to serve as a full and sufficient vindication. We do not think that the learned judge erred; he was entitled to take into account the element of vindication in assessing damages. In the case of Cassell & Co Ltd v Broome [1972] AC 1027, at p 1071, Lord Hailsham of St Marylebone LC quoted with approval the following passage of the judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, at p 150:

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.

85       Secondly, Mr Gray criticized the learned judge for using the word “wicked” in referring to the slander, as that term has a grave and evil connotation. The use of the word “wicked” must be read and understood in the context of what the learned judge said. At that point, the learned judge was referring to the gravity of the slander, the respondent’s 30-year record of an honest government, his vigilance in ensuring that honest people came into government and the convincing evidence before the Commission of Inquiry showing the respondent’s firm handling of the investigations by the CPIB. It was in this context that the learned judge referred to the slander as “wicked”. It seems to us that by the use of that word, the learned judge meant that having regard to all those facts of which the appellant was fully aware, the slander was made deliberately by the appellant with the intention of causing hurt to the respondent’s feelings.

86       Thirdly, the learned judge was criticized for attributing motive to the appellant in making the imputations. Again, the learned judge’s reference to the “motive” must be seen in the proper context. He was dealing with counsel’s arguments that the appellant inadvertently made the imputation. He found that the imputation was not made inadvertently and that the appellant had intended to make the imputations that he made. Lastly, it was submitted that the learned judge referred to the proceedings in Malaysia against The Star newspaper and wrongly treated that as a factor in assessing damages. That was not so. The learned judge referred to those proceedings for the purpose of demonstrating that the appellant knew that the respondent had in early 1987 commenced proceedings against the newspaper and its editor for imputations of a similar nature made against him, and in full knowledge of such proceedings, the appellant chose to raise the same matter and utter the slander.

87       In our judgment, the learned judge, in assessing the amount of damages, has taken into account all the relevant factors. The amount awarded does not fall out of line with the awards given in two recent defamation cases: see Lee Kuan Yew v Seow Khee Leng [1989] 1 MLJ 172 where the sum awarded was $250,000 and Lee Kuan Yew v Derek Gwyn Davies [1990] 1 MLJ 390 where it was $230,000. Obviously, the damages to be awarded in each case must depend on its facts and circumstances. While the defamatory meaning of the words which we have found is not exactly the same as that found by the learned judge, that does not, in our opinion, affect the award, because even on the basis of the meaning we have found, we do not consider that, having regard to all the circumstances of the case, the amount awarded is manifestly excessive. We therefore can see no valid ground for interfering with the award.

Interest on damages

88       Mr Gray contended that the learned judge was wrong in awarding interest on the general damages. In defamation actions, he submitted, damages are awarded for the injury to the plaintiff’s reputation as at the date of trial, and circumstances occurring after the publication, whether they be aggravating or mitigating, up to trial and during trial itself, are taken into account, as the court did in the present case. For this reason, interest ought not to have been awarded. He cited in support Saunders v Edwards [1987] 1 WLR 1116, at p 1129, where Kerr LJ said:

What is challenged is the award of interest upon it, and at a commercial rate, from the issue of the writ. The power to award interest is now governed by s 35A of the Supreme Court Act 1981 (as inserted by s 15(1) of the Administration of Justice Act 1982). We were rightly reminded of what was said by the House of Lords in regard to appeals on questions of interest, in BP Exploration Co (Libya) Ltd v Hunt (No 2) [1983] 2 AC 352, in particular by Lord Brandon of Oakbrook, at p 373. But, in my view this is a case in which this court should interfere with the judge’s award of interest, because he must have erred in principle. It is clear that he took account of all the circumstances up to the time of judgment, and indeed to some extent he looked into the future. He was quite right to do so. But on that basis there could be no justification for awarding interest from the date of the writ. That would only be right if the plaintiffs should have had that sum in their pocket there and then, as in cases of breach of contract. That is contradicted by the judgment itself. Since the judge’s exercise of discretion cannot stand, we must substitute our own view.

89       More apposite is the following passage from the judgment of Bingham LJ, at p 1135:

The judge’s award was clearly intended to compensate the plaintiffs for the inconvenience they had suffered throughout their occupation of the flat up to the date of trial and for disappointment during the same period. It was a single global award, modest in amount but intended to cover the past and the future. It is somewhat analogous to an award of general damages to a defamation plaintiff for mental distress and suffering, which have never, as I think, been augmented by interest up to the date of the trial. I consider this approach to be correct in principle, because in neither case can the damages be realistically seen as having accrued due to the plaintiff at a certain time in the past and as having thereafter been wrongly withheld from him.

90       Mr Eady did not really challenge this submission and conceded that in England interest has never been awarded in a defamation action, but drew our attention to the case of Lee Kuan Yew v Derek Gwyn Davies, at p 419, where interest was also awarded.

91       We think that Mr Gray’s argument is unanswerable, and we agree with him. However, the question of interest was not argued before the learned judge; nor was such a question raised and argued in the case of Lee Kuan Yew v Derek Gwyn Davies. We are of the opinion that interest ought not to have been awarded here, and we accordingly vary the judgment of the learned judge by disallowing interest on the damages awarded. If such interest has been paid, we order that the respondent refund the amount to the appellant.

Costs

92       We now come to the question of costs. The appellant has succeeded only on the question of interest which, however, was not argued below. He has substantially failed in this appeal. In the circumstances, he has to bear the entire costs of the appeal. We therefore order that the appellant pay to the respondent the costs of the appeal. Further, this appeal merits the issue of a certificate of two solicitors pursuant to O 59 r 19; accordingly we so order. There will be the usual consequential order for payment to the respondent’s solicitors of the amount deposited in court as security for costs.

Appeal dismissed.

Reported by Kenneth Huang

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