SINGAPORE: The Apex court dismissed an appeal by blogger Leong Sze Hian on Friday (Sep 27) against a decision by a high court judge to strike out his counterclaim against Prime Minister Lee Hsien Loong.
The three-judge court, which reiterated that Mr Leong's argument of abuse of process was not part of the law of Singapore, also ordered Mr Leong to pay the Prime Minister costs of S$20,000.
Mr Leong's lawyer Lim Tean, who founded political party Peoples Voice, had contended that there was an abuse of court process when Mr Lee brought a defamation suit against his client for sharing a Facebook post.
PM DID NOT SUFFER DAMAGE: LAWYER
Mr Lim argued in Singapore's highest court on Friday that the Prime Minister has not suffered any damage from the sharing of an allegedly libellous Facebook post, and is instead suing Mr Leong to chill freedom of expression ahead of the General Elections.
However, the judges said in response that "it is important to view the facts in their proper setting".
"A plaintiff in a defamation action is entitled to invoke the aid of the court to vindicate his interests if he is at the receiving end of a defamatory publication," they said. "The courts cannot limit the rights of injured parties to access the courts, even if they happen to be public figures."
Mr Lee had sued Mr Leong over a post shared on Mr Leong's Facebook page on Nov 7, 2018. It contained a link to an article by Malaysian website The Coverage, alleging that Mr Lee had helped former Malaysian prime minister Najib Razak launder money in relation to scandal-hit Malaysian state fund 1Malaysia Development Berhad (1MDB).
The Prime Minister's legal team, led by Senior Counsel Davinder Singh, said the post and linked article alleged that Mr Lee was complicit in criminal activity and had corruptly used his position to help Mr Najib Razak launder billions.
The allegations are "false and baseless", "calculated to disparage and impugn the plaintiff in his office as the Prime Minister", said Mr Lee's lawyers in their statement of claim.
Mr Leong's lawyer then launched a counterclaim, alleging that Mr Lee was "abusing court process", but this counterclaim was struck out by Justice Aedit Abdullah, who ruled that the suit would go to trial.
On Friday, Mr Lim reiterated his argument before Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang and Judith Prakash, insisting that Mr Lee had abused the court process.
"He has not used these proceedings to vindicate his reputation, but to shut down a prominent government critic," said Mr Lim.
"We do not make any concession as far as the article is concerned. We do not support the article."
"What is in the pleadings before the court is that we have said the respondent had no basis to bring this claim because it was an abuse of process," added Mr Lim.
"That really, he has not suffered any damage, and he was bringing this action for a collateral purpose to chill freedom of expression ... ahead of what might possibly be the General Elections in this country, to silence his critics."
JUDGES NOT CONVINCED BY ARGUMENTS
The judges took issue with Mr Lim's arguments and were not convinced by them. Chief Justice Menon said that he did not understand Mr Lim's point that a person has the right to sue the person he has allegedly defamed, referring to Mr Leong's right to countersue the Prime Minister.
"I cannot get my head around it, and I say with great respect, even you cannot get your head around the idea," said Chief Justice Menon.
"The law makes sense. If you are right (that Mr Leong has not defamed Mr Lee), the remedy is to get the claim dismissed, and then seek protections."
He said the law provides "ample remedy" for how to deal with people who have been wrongly sued.
"Your options are exactly what I told you - which is you can strike out the claim as an abuse, or eventually win, or seek sanctions. This is how the court has dealt with this area for the longest time," Chief Justice Menon added.
Justice Andrew Phang said if the court allowed a person being sued for defamation to countersue the plaintiff for abuse of process, it would be "encouraging abuse of freedom of speech".
"If a person has been defamed, they will think - goodness me, if I sue, I better think twice about vindicating my rights, because if I sue, I might be countersued for abuse of process, and that's a chilling effect," he said.
"If that is the case and there is a chilling effect, then the freedom of speech which you so strongly advocate and is such a central part of our constitution and our rights generally, would be open to abuse," said the judge.
"So ironically, you would be encouraging abuse ... of freedom of speech. 'Think twice before you sue, because if you sue, I will sue you'."
MY CLIENT WAS THE ONLY ONE SUED: LIM TEAN
Mr Lim also contended that his client was the only one "out of close to 10,000 people" who shared the offending link who was served a notice by the Infocomm Media Development Authority and sued by the Prime Minister.
"So here we have a case of a Prime Minister who exercises the highest form of selectivism in determining who the defendant of a libel claim of his will be and this case it is directed to a very prominent critic of the Government who has written well over 2,000 articles over the years," said Mr Lim.
The Chief Justice pointed out that it is established that a plaintiff has the right to pick who to sue for defamation.
"You seem to think there's something sinister in that," said Chief Justice Menon. "It's a common precept that a plaintiff is entitled to choose how he wishes to conduct his litigation. You know that."
Justice Phang added: "By that same token ... if you choose not to sue (someone) because you're merciful ... it's your choice, it's freedom of choice."
JUDGES QUESTION LIM TEAN ON STATE MACHINERY ARGUMENT
The judges also questioned Mr Lim about a claim he repeatedly made that Mr Lee had brought in "mechanisms" or "machinery" of the state in suing Mr Leong.
Mr Lim had alleged that the Prime Minister had used "the state machinery" to shut down critics.
"What exactly is the state machinery?" questioned the Chief Justice. "What is it that you mean, when you say the plaintiff is abusing the machinery of the state in this context?"
"The only public agency is the court. I don't think you are saying the court is the machinery of the state?"
At this, Mr Lim said that was not what he meant. He said Mr Lee had "government machinery at his disposal", to which Justice Phang questioned what exactly this machinery was.
Referring to Senior Counsel Davinder Singh, the judge said: "I don't think (Mr Singh) is part of government machinery, and I think he's been paid his fees."
This drew laughter from the public gallery, which held an audience of about 40 people including blogger Han Hui Hui with a baby in a pram and The Online Citizen editor Terry Xu, who is facing a defamation suit from the Prime Minister.
"How is he a part of public machinery?" asked the judge.
"I'm not saying that Mr Singh is part of public machinery," said Mr Lim.
"I certainly won't dare to say that," said Justice Phang.
He also said that a court "is not a court of politics", which would be a contradiction in terms.
"We are a court of justice and law," he said. "I think any person who claims he or she has been defamed has a right to bring this action in court, regardless of your station in society, be you ever so high or ever so low, the court is fair and just to everyone."
The dismissal of the appeal means the original defamation suit will be brought to trial.