Looking Backwards: Chiam See Tong’s legacy in the SDP (Part 3)

chiam see tong black horse
Chiam See Tong’s campaign pre-SDP under the ‘Black’ Horse party logo. (Photo taken from ST) 

Much of what happened at the Parliamentary Session (Part 2) probably led to this move by Chiam.

Chiam challenges Chee to by-elections in Potong Pasir

“I shall come straight to the point. The CEC of the SDP wants me to resign from the party which I have founded. From the first day I took part in opposition politics I have announced that the type of opposition I intend to build must be constructive honest and sincere and I have not deviated from that intention. I founded the SDP so that it could be a vehicle for nation building and that is what I still want the SDP to do. On the other hand, the present CEC wants to use the SDP on an agenda which I do not agree. As long as I am in politics I shall not allow them to do so. They want me out of their way. They want me to resign from the party. The present CEC wants people to hear only their brand of politics. They do not want competition, they do not want an alternative voice within the SDP. Whilst preaching to the people of Singapore that there must be open debate yet the current SDP leadership does not want to debate with the alternative voice which I represent with the party. Is that the type of openness, is that the type of democracy which they proclaim to uphold?

“When I resign from the SDP I shall also automatically lose my Parliamentary seat in Potong Pasir. I want the present secretary-general, Chee Soon Juan to stand against me in Potong Pasir. Should Chee wins, he shall remain the leader of the SDP, and the current CEC remains intact, but should he loses then the whole current CEC and all the cadres shall immediately resign their posts as CEC and cadre members and I shall resume the secretary-general post and I shall pick my own CEC members which in turn shall select a whole new set of cadre members.”

Plaintiff challenged the CEC that if he was to resign from the SDP, Dr Chee will have to stand for election at Potong Pasir against him. Plaintiff said if Dr Chee failed the CEC members must resign and so must the cadre members which means the entire CEC and cadre members will have to resign. It will mean that the entire party will no longer be in existence. Therefore, it was an unreasonable condition which can never be met. Therefore, I too imposed a condition which could not be accepted by the plaintiff.

Fair comment defence of Wong, Chee, the fifth to tenth and 12th defendants

However, on the facts I have stated I have little doubt that Wong, Chee, the fifth to the tenth and the 12th defendants were actuated by express malice when they published the press statement. There is clear evidence that by the time of the Williams College debate there was bad blood between Chiam and the CEC, in particular Wong and Chee. Similarly too, the offending press statement was in response to Chiam’s press statement of 4 November in which Chiam had challenged Chee (and the CEC) to stand against him in Potong Pasir. The CEC considered Chiam’s challenge a ridiculous one, and so they issued a counter-challenge which Chiam said had “trivialised” his challenge “by setting impossible conditions”.

So, the irresistible inference must be that the offending press statement was released to embarrass Chiam for the challenge he made on 4 November. In the words of Mr Elias for Chiam, the press statement was made to “down” Chiam. In my view, this was an improper motive for the issue of the offending press statement. This constitutes express malice. This is why the defence of fair comment must, in any event, fail.

For all these reasons, Wong, Chee, the fifth to tenth and the 12th defendants are also liable for the libel contained in the 6 November press statement.

Damages

It remains for me to assess damages. On the facts I have found, the damages Chiam can claim are compensatory. It is trite law that the quantum of the damages must be sufficient to vindicate his reputation and to compensate him for his injured feelings.

In assessing the damages, in addition to the general matters referred to by counsel in their submissions, in this case there are the following facts to be borne in mind. One, the common knowledge that the offending press statement was issued in the course of an internal political squabble between Chiam and the CEC which each carried out in the media. In the circumstances, a reasonable reader would more likely to be sceptical about what was stated in the offending press statement. It is a natural reaction for a reader to discount what is said disparagingly of a man when he knows that the words were said by the man’s enemies.

Two, for the same reasons, the injury to Chiam’s feelings would also be less. That this was the case is clearly shown in Chiam’s press statement of the same day in reply to the offending press statement stating that he was “disappointed” with the stand taken by the CEC who had “trivialised the whole matter by setting impossible conditions”, and further that the CEC “tries to slander me by insinuation”. As Mr Dube submitted for the defendants, his initial reaction was not of a man who was gravely injured in his feelings to the offending press statement. However, it must also be said the next day Chiam gave notice to the chairman of the SDP, Ling, that he reserved his “legal rights to sue for damages in relation to the said press statement”.

Three, when it came to legal proceedings, Chiam put his case so high as to allege that the defendants in defaming him were imputing that he is a stooge, lackey or puppet of the PAP and that he is unfit to be an opposition MP. It would appear that Chiam considered this to be the main sting of the libel. As I have explained, this I cannot find on the facts.

Four, I cannot agree with Chiam when he said that the conditions he had imposed in his 4 November press statement challenging Chee (and the CEC) to stand against him in a by-election in Potong Pasir were not impossible to perform. Neither Chiam nor Mr Elias on his behalf could make clear to me how the challenge would be successfully implemented. Leaving aside the internal strife that would erupt, of calling all the CEC and cadre members to resign, the challenge thrown by Chiam was a ridiculous one.

In my view, the challenge was flawed. As I see it if Chiam resigns from the SDP and runs against Chee in a by-election, he obviously cannot run under the SDP’s banner. So even if he wins and accepting his evidence that the mechanism is in place for him to resume the helm of the SDP, the simple fact is that Chiam cannot take his seat in Parliament for he did not win the election under the SDP banner. I therefore cannot see how he can be heard to say that he was gravely injured in his feelings when his challenge was trivialised.

Five, Mr Elias claimed damages for Chiam for injury to his reputation as an advocate and solicitor. In my view, damages would have to be given for the imputation that Chiam is not a man of principle or honour. However, as the libel was in relation to Chiam’s political life, and would be so understood by the ordinary reader, it cannot be aggravated damages.

Six, a claim for aggravated damages was sought for Chiam on the failure on the part of the defendants to apologise. In this context, it must be borne in mind that Chiam’s solicitors’ letter of 18 January had demanded that the defendants apologise for imputing that Chiam was a stooge, lackey or puppet of the PAP and that he had compromised his integrity and principle as an opposition MP. As this has not been made good in the trial, the claim for aggravated damages for failure to apologise does not arise. However, the defendants on their part could have replied to say that the press statement was not defamatory in the manner alleged but that it could be defamatory in a lesser way, and offered to apologise for that. Instead, Chee made a statement to the press that the SDP will not apologise. So, I would give some damages in this regard.

Seven, having regard to s 18 of the Defamation Act, I am of the view that the common law rule in Cassell & Co Ltd v Broome that damages is assessed according to the lowest common denominator amongst defendants is not applicable in Singapore. It seems to me that s 18 is only workable if the highest point is taken as the starting point. This means taking into account all the circumstances and determining how much the person most culpable is liable for. If mitigation is claimed by some of the defendants, then the onus is on them to make an application under s 18, so that the court can consider the relevant matters concerning them. In this action, none of the defendants have applied for damages to be assessed separately.

Eight, I must take into account the conduct of the defendants in these proceedings. On Ling, I have earlier, in considering his liability for the libel, touched on his evidence. His evidence that as chairman of the SDP, he knew nothing about the offending press statement and had taken no stand on it was ludicrous, bearing in mind that he had also acted as solicitor for the other defendants. Here I would add that except, where from a line of questions, he was compelled to concede or admit to material facts, and even then grudgingly, he was often evasive in the witness box and his evidence left much to be desired. I would say that his conduct on the matters thrown up in this case, considered as a whole, was deplorable. In my view, the kind of evidence he gave in court had the effect of exacerbating the libel.

Nine, as for Wong and Chee, I have to take into account that they had sought to justify the libel even when they were in the witness box. In particular, Wong had maintained that Chiam was a man of no political principles. Chee had also said that Chiam had jumped on the PAP’s bandwagon. Both of them had also tried to give the impression that they had been very accommodating of Chiam up till the time of the libel and that it was Chiam who had rebuffed their attempts. However, it is clear to me on the evidence that by 16 August 1993 neither of them regarded Chiam as a member of the SDP.

Ten, it is of course a serious libel to say of an opposition MP that he is a lackey, stooge, or puppet of the ruling party, and if this is on a balance of probabilities proved, I would agree with Mr Elias that the damages would be more substantial than I am going to award. However, for reasons I have given, this imputation has not been proved.

Now, on the authorities for damages cited to me, this case is unlike that in Lee Kuan Yew v Vinocur John[1996] 1 SLR(R) 840, where the libel on the Senior Minister was published by a reputable publication and had appeared to have been written by an unbiased observer. I also do not find Chew Chin Tong Ernest v Chee Soon Juan Suit No 955 of 1993 and S Vasoo v Chee Soon Juan Suit No 936 of 1993 useful as I was only given the formal judgments.

On the findings I have made on the evidence, and taking into consideration all the factors I have enumerated above, I am of the view that the sum of $120,000 will assuage the injured feelings and restore the reputation of Chiam.

The plaintiff is entitled to the costs of this action. As regards apportionment of costs against the defendants, I am of the view that this court can express its disapproval of the conduct of some of the defendants. But any order that I can make will depend on whether there is an application by the several defendants. So, I give liberty to the defendants to make an application if they want to on a date to be fixed by the Registrar.

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