Apex court dismisses Leong Sze Hian’s appeal against striking out of counterclaim against PM Lee

The Court of Appeal on Fri (27 Sep) dismissed an appeal by veteran blogger Leong Sze Hian following the striking out of his counterclaim against Prime Minister Lee Hsien Loong.

Leong said on Facebook the same day that “after 1.5 hours of oral arguments by my counsel Lim Tean and no oral arguments by Davinder Singh”, the latter of whom is Lee’s lawyer.

“Davinder Singh asked for $23,000 costs and was awarded $20,000,” Leong added.

The veteran blogger’s counterclaim was made on the grounds of Lee’s alleged abuse of judicial process in filing a defamation suit against him for sharing an article by “Malaysian-based social news network” The Coverage on his personal Facebook Timeline, titled “Breaking News: Singapore Lee Hsien Loong Becomes 1MDB’s Key Investigation Target – Najib Signed Several Unfair Agreements with Hsien Loong In Exchange For Money Laundering”.

The article alleged that Lee had entered “several unfair agreements” with Najib, who was the Malaysian Prime Minister at the time the deals purportedly took place, “including the agreement to build the Singapore-Malaysia High Speed Rail”, according to court documents.

Leong, who had shared the article on 7 Nov last year, did not include any accompanying text alongside the article.

His lawyer Lim Tean told a three-judge panel – made up of Chief Justice Sundaresh Menon, and Judges of Appeal Andrew Phang and Judith Prakash – that while Lee “may be a litigant in person”, he argued that Lee, as Prime Minister, is “bringing libel action to protect the reputation of his government”, and that consequently it has “a chilling effect on free speech”.

Lim also highlighted that out of the “10,000 people” who had shared the allegedly defamatory article, Leong was the only one to be sued by PM Lee.

“We have a case of the prime minister exercising the highest form of selectivism to determine who (the) recipient of libel claim will be and in this case it is directed at a prominent critic of the government who has written well over 2,000 articles over the years,” Lim told the Court of Appeal during the open hearing.

 

CJ Menon however opined: “You seem to think there is something sinister there, but it is a common precept in civil law as to how a plaintiff wishes to conduct his litigation. You know that.”

He also said, on behalf of the panel of judges, that in deciding to dismiss Leong’s appeal, it must be noted that “courts cannot limit the rights of injured parties to access the courts, even if they happen to be public figures”.

“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,” reasoned CJ Menon.

In response to Lim’s argument for the defendent to be able to countersue the plaintiff, the judge said that he “could not get his head around the idea” that a person who has engaged in defamation against another can sue the one being defamed for bringing libel action.

“We are here dealing with the case on your proposition that even if I have defamed, I have a right to sue,” said CJ Menon.

On 13 Mar this year, the High Court cited Leong’s failure to disclose a “reasonable cause of action” in his counterclaim as a reason to dismiss the counterclaim.

Justice Aedit Abdullah, in delivering his judgement in Lee Hsien Loong v Leong Sze Hian [2019] SGHC 66 on 12 Feb, cited the Court of Appeal’s decision in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] 2 SLR 866, which “rejected the tort of abuse of process as a recognised cause of action”.

The point was made based on Lee’s defence against Leong’s counterclaim, filed on 9 Jan this year, which argued that Leong “did not disclose a reasonable cause of action”.

Citing Lee’s submission, Aedit J said: “A ‘reasonable cause of action’ is one that has ‘some chance of success when only the allegations in the pleading are considered’.

“A claim based on a cause of action that is not recognised at law will be struck out for disclosing no reasonable cause of action.

“Accordingly, as the defendant’s counterclaim discloses no recognised [emphasis by Aedit J] cause of action [in the law], let alone a reasonable one, it should be struck out,” reasoned the Judge.

Earlier, a writ of summons was filed by Mr Lee against Mr Leong on 20 Nov for defamation based on the latter’s sharing of the offending article without comment, on the grounds that said article created the “false and baseless” impression that Mr Lee had misused his position as Prime Minister to assist  Najib’s money laundering activities in relation to 1MDB’s funds, and subsequently insinuated that Lee was “complicit in criminal activity” relating to the Malaysian state fund.

IMDA subsequently served a notice to Leong, instructing him to remove his post. Despite Leong deleting his post three days later, Leong was served a letter of demand by Singh a couple of days after.

In his oral submission on Fri, Lim charged that Lee as Prime Minister was using “state machinery” in involving IMDA, the Monetary Authority of Singapore and the Minister of Law in his suit.

Judge Phang however retorted: “Mr Singh doesn’t belong to the government machinery, I think he’s being paid, Mr Singh, you don’t have to answer. How is he part of public machinery?”

Lim replied: “I’m not saying that, your Honour.”

On 26 Dec last year, Leong filed his defence and counterclaim against Mr Lee’s suit on 26 Dec, citing Lee’s “abuse” of the judicial process as his “relevant cause of action”.

However, Lee filed a defence against Leong’s counterclaim on 9 Jan this year, stating that the latter “did not disclose a reasonable cause of action”.