Case Update: Gao Shuchao v Tan Kok Quan [2018] SGHC 115 - High Court Clarifies Law on Qualified Privilege and Overturns Finding of Defamation
Article by Yeo Ming Ze & Edited by Ronald JJ Wong
Background
In the District Court (“DC”), the Appellant, a Singapore Management University law professor, was ordered to pay $120,000 in total damages after defaming the three Respondents during an Annual General Meeting (“AGM”) of the management corporation (“MC”) of the Duchess Residences in the Bukit Timah area.
The Respondents’ defamation claim stemmed from disagreements over a special levy imposed by the MCST on the residents to alleviate the impending cash deficits caused by the failure of 13 subsidiary proprietors (“SPs”) to pay contributions to the management and sinking funds. The special levy was slated to be paid in 3 different installments. However, the Appellant failed to pay up for the first 2 installments and the MCST obtained a separate judgment against him in MCST Plan No. 3720 v Gao Shuchao [2017] SGMC 10 (“MCST Plan No. 3720”).
After the first tranche of payments made by the SPs, a judgment sum was received from the developer of the estate, which meant that the MCST could apply this sum to offset the amount to be paid from the levy. However, the MCST chose not to disclose the receipt until a much later date, after the second tranche of payments was made. This culminated in the exchange at the AGM where the Appellant said the words giving rise to the present Suit.
‘‘Was the management council deliberately concealing the receipt of the payment or was the management council misrepresenting to the SPs that you have not received the payment?...
… based on the facts. I could only draw 2 possible conclusions. One conclusion is there has been deliberate concealment. The other conclusion is that… There was a misrepresentation…’’
The Appellant who defended himself in the court below did not dispute that the words were uttered but denied that they were defamatory. Importantly, he raised the defence of qualified privilege, which was held to be unsuccessful as the DC was of the opinion that the statements were made with malice.
The DC found that defamation was established in this case and ruled that in totality, $40,000 in damages should be paid to each of the Respondents, including $10,000 in aggravated damages. In assessing damages, the DC factored in the Appellant’s standing as an associate professor and held that the fact the words spoken by him carried more weight than if they were spoken by someone not schooled in the law.
The Law on Qualified Privilege
The common law defence of qualified privilege completely exonerates one from defamatory remarks made by him. However, it is also settled law that such as defence is conditional on the plaintiff being unable to prove actual malice.
As Gatley on Libel & Slander (Sweet & Maxwell, 12th Ed, 2013) succinctly puts it, this defence is necessary to allow for free and honest communication in certain relationships without the risk of an action for defamation. Such a defence generally arises in situations where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it.
The inquiry as to the statement-maker’s state of mind is a subjective exercise and the threshold to be met is a high one. The high threshold is in line with the rationale that the publisher has a moral, social or legal duty to disclose information and the recipient has an interest in receiving it. Hence, in the case of Horrocks v Lowe [1975] AC 135 at [153], it was held that ‘‘however irrational’’ the defendant was in ‘‘leaping to conclusions unfavourable’’ to the plaintiff, the ‘‘privileged occasion’’ entitled him to succeed in the defence of privilege.
The Malice Exception
However, if the person making the statement had malice, then the defence of qualified privilege is not available to him. Malice can be found under two separate and disjunctive conditions.
Under the first limb, the defendant would be deemed to act in malice if it can be shown that he knew that his statement was false or was reckless as to the truth of the defamatory statement.
For the second limb, there would be a finding of malice if it can be shown that the defendant had the dominant intention of injuring the plaintiff, or some other improper motive, notwithstanding the fact that he may have a genuine or honest belief in the truth of the defamatory statement.
Reasoning
Did the Appellant know either that (1) his statement was false or; (2) was reckless to its truth?
Antagonistic tone alone was inconclusive in showing that the Appellant knew that the Defamatory Words were untrue or was reckless as to their truth
The DC held that the Appellant satisfied the first limb of the test for malice. The fact that he had refused to apologise even after hearing the explanations from the MC members on the late disclosure was found by the DC as a clear indication that he knew of the falsity of his statement.
However, in the HC, it was held that his failure to apologise could not conclusively point to the fact that he was aware of the falsity of his statement or was reckless as to the truth because he was prepared to retract his statements if necessary, alluding to the fact that the Appellant eventually withdrew the use of his Defamatory Words after the MC members eventually offered explanations for the delayed disclosure. Moreover, the Appellant’s refusal to apologise appears to be underpinned by his perception that he was justified in saying the Defamatory Words prior to obtaining explanations from the MC members for the delayed disclosure of the receipt of the judgment sum.
Furthermore, the Appellant could not be faulted entirely for his comments as the MC itself appeared uncertain of the reasons for the eventual decision to withhold disclosure. Notably, various different explanations were proffered during the MC meeting and the AGM by the MC members, including the Respondents, as to the non-disclosure of the receipt of the judgment sum.
Moreover, having the Appellant sign off the emails with his professional designation as an associate professor at the School of Law did not unequivocally point to the fact that he was pressurizing the MCST by a mere display of his legal accreditation without actually having a genuine belief in the Defamatory Words.
On the other hand, such antagonism may instead be evidence of a strong belief in the truth of the defamatory statements made. Therefore, the statements would be more aptly classified as comments rooted in carelessness, impulsiveness or irrationality – not in malice.
The antagonistic emails cannot establish wilful blindness on the part of the Appellant
In the HC, it was held that the DC had conflated the 2 emails sent by the Appellant concerning an earlier judgment in MCST Plan No. 3720 with the current case at hand which concerned the non-disclosure of the receipt of the judgment sum. Given that the issue concerning the late disclosure by the MCST in the present suit occurred sometime after the emails were sent, the ‘antagonistic tone’ evidenced in the emails should not be a consideration in ascertaining the Appellant’s conduct in the present suit.
There was no duty for Appellant to inquire further vis the test of recklessness
There was no duty for the Appellant to inquire further with respect to the test of recklessness under the first limb. Therefore, the fact that the Appellant did not inquire further only went to show that he was careless, but not reckless.
Notably, the HC distinguished the present case from cases such as ABZ v Singapore Press Holdings Ltd [2009] 4 SLR(R) 648, Price Waterhouse Intrust Ltd v Wee Cho Keong [1994] 2 SLR(R) and Lee Kuan Yew v Gwyn Davies [1989] 2 SLR(R) (“Davies”), which concerned the failure to verify the very pieces of information published instead of a failure to inquire further.
Here, the pertinent legal question to be answered was whether the Appellant was put on notice as to the existence of further information necessary for him to form a genuine belief as to the truthfulness of his Defamatory Words. To this end, the HC judge held that, similar to the case of Davies, whether the Appellant was put on notice would still depend on the relevant facts of the case.
Accordingly, the HC pointed out the Appellant was not put on notice to inquire further and had a basis for his alleged defamatory statements as he relied on the report provided by the MC. In the Appellant’s position, any information available to him about Duchess Residences would be from MC reports, general meetings and newsletters. Corollary to this, the MC report that the Appellant had relied on was the first time the receipt of the judgement sum was disclosed to the SPs and, crucially, no reasons were provided for the prior non-disclosure in that report.
Therefore, while the Appellant might have been careless, impulsive or irrational in coming to the conclusion that MCST was deliberately concealing the fact that the judgment sum was received, the high threshold of recklessness was not crossed.
Did the Appellant have an intention to injure, or was he driven by an improper motive?
The procedure during cross-examination contravened the rule in Browne v Dunn (1893) 6 R 67
In relation to the test for improper motives, DC found that the Appellant was acting pursuant to an “improper” motive as he was speaking up at the AGM to avoid paying a special levy that has been approved and that other owners had already paid.
The DC took into account information during cross-examination to establish that the Appellant was driven by a dominant improper motive to obtain a private advantage of not having to pay the special levy. However, the HC applied the rule in Browne v Dunn and held that the contents of the cross examination cannot be adduced as evidence against the Appellant to contradict the Appellant’s testimony.
In Browne v Dunn, it was stated that it was “absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation is intended to be made”. The rationale of the rule is to give the witness an opportunity to respond to allegations made and to explain himself.
However, during cross-examination, the Appellant was only questioned about whether he was annoyed and angry at the MCST, but never about whether he was pressuring the MCST to withdraw the demand for payment of the special levy.
The Respondents were particularly evasive with respect to the questions posed
The HC also found in the Appellant’s favour as the totality of evidence suggested that he was merely trying to find out the reasons for the non-disclosure.
One key finding that led to his conclusion was that the MC seemed to be deliberately evading the Appellant’s questions. Crucially, another SP who attended the AGM spoke up on the side of the Appellant and said “we have questions about this issue, then you should provide an explanation” when the 1st Respondent tried repeatedly to move away from the Appellant’s questioning regarding the special levy.
Acknowledging this context, it cannot be said that the antagonistic tone adopted by the Appellant implied that he was driven by the dominant purpose to gain the private advantage of not having to pay the special levy.
Conclusion
In this case, the HC rightly emphasized that a high threshold was required in order for malice to be established. Several other important observations can be gleaned from this decision.
First, the HC took into consideration the timeline concerning the MCST judgement and the emails, to establish their causal link or lack thereof , rightly establishing that the antagonistic emails were not relevant to the current case.
Second, the HC invoked the procedural rule in Browne v Dunn to determine substantive justice.
The Appellant was successfully represented by our Managing Director Mr. Lee Ee Yang. If you would like to discuss the impact of this case on you or your business, please contact:
Lee Ee Yang
Managing Director
Tel: +65 9859 4333
eeyang.lee@covenantchambers.com
