Leong Sze Hian defamation trial: High Court directs parties to evaluate whether Leong’s republication is actionable

As the defamation trial between Prime Minister Lee Hsien Loong and veteran blogger Leong Sze Hian comes to a close, the High Court has tasked the two parties to look at whether republication of Mr Leong’s Facebook post gives rise to sufficient legal grounds for the lawsuit.

This, in particular, is given the circumstances relied upon by Mr Leong, said Justice Aedit Abdullah on the second day of the hearing on Wednesday (7 October), with reference to Justice Belinda Ang’s decision and her citation of Gatley on Libel and Slander in Qingdao Bohai Construction Group Co, Ltd and others v Goh Teck Beng and another.

In her decision in Qingdao, Justice Ang stated that there are three components to defamation, namely: The defendants must have published the material to a third party, the material must refer to the plaintiffs and the material must be defamatory of the plaintiffs.

She also noted that in general, liability for defamation “may arise when the defendant deliberately draws the attention of others to an existing libel”.

Citing the Gatley guide, PM Lee’s counsel Davinder Singh in his opening statement earlier argued that it is “well-established” that an individual subject to a lawsuit “will be liable for republications if a reasonable person in his position” could acknowledge that “there was a significant risk that what he said would be repeated” resulting in heightened “damage caused by what he said”.

He also submitted that an individual found liable for the original publication “is also liable for all subsequent republications which are the natural and probable result of his act”.

Justice Aedit also directed the two parties to address the issue of the extent to which defamation remains “understood in its traditional context”, as well as “and how much, if anything, should be read from the introduction of POFMA”.

The judge also called on the parties to subsequently evaluate what “the appropriate balance” between defamation and the rights to freedom of speech and expression vested in the Singapore Constitution under Article 14.

The POFMA and Article 14 questions, he said, was “foreshadowed” in Mr Leong’s lawyer Lim Tean’s opening statement, in which the lawyer touched on how defamation should be viewed and assessed particularly in light of the Protection from Online Falsehoods and Manipulation Act and similar developments on fake news legislation in Singapore.

Mr Lim in a Facebook post on Thursday (8 October) said that the directions put forth by Justice Aedit “are very weighty directions”, which he said will be addressed in his submissions.

Mr Leong submitted on Wednesday that there is no case to answer against PM Lee’s defamation claims against him.

Mr Lim highlighted that out of the nine issues listed in PM Lee’s opening statement, it was stated that Mr Leong bears the burden of proof with regards to only one of the said issues.

The particular issue pertains to whether PM Lee’s decision to bring the proceedings at hand against Mr Leong was an abuse of process, given PM Lee’s position and power as the head of government.

Mr Lim also noted before Justice Aedit that PM Lee has accepted that there is no direct evidence of republication of the Facebook post shared by Mr Leong.

In Mr Lim’s cross-examination of PM Lee at the witness stand on Tuesday, PM Lee said that he does not “have screenshots of republishing” when asked by Mr Lim if he has proof — such as screenshots — that Mr Leong’s post which contained the link to the article was republished in Singapore.

Mr Lim also argued during the hearing today that PM Lee had accepted that Mr Leong “had publicised the proceedings but not the words complained of”.

“That came out very clearly in the plaintiff’s evidence yesterday,” said Mr Lim.

The lawyer said that it is his client’s case that he did not aggravate the alleged libel, and that there is no evidence on Mr Lee’s part “to state that he was aware of or upset by this post publication conduct”.

Branding PM Lee’s case “frivolous and vexatious”, Mr Lim added that there is nothing, even prima facie, to show that his client had acted in bad faith in sharing the post.

“I think in any event, the plaintiff still bears the burden of first proving of course the libel,” he said.

PM Lee’s lead counsel Davinder Singh, however, protested Mr Leong’s decision, arguing that his client’s position is “very clear” in that Mr Leong had continued “not just to draw attention to the proceedings, but also to the offending words” after the proceedings had commenced.

An example of such, said Mr Singh, is a post made by Mr Leong where he had “linked that post to photographs of the letter of demand where the words are”.

Mr Singh charged that Mr Leong “never had any intention of taking the stand to be cross-examined”.

Mr Leong, he said, “made the most serious allegations against the plaintiff” beyond “those in the offending words”, he said.

The lawyer said that such allegations entail accusing PM Lee of alleged abuse of process and attempting to thwart freedom of expression and speech by sending “a message to the population that the Government will not tolerate criticism”.

“He [Mr Leong] even took issue as to whether there was substantial publication and republication,” said Mr Singh.

Referencing a post by Mr Leong in which it was said that the legal battle against PM Lee’s lawsuit is not only for himself but also for Singaporeans, Mr Singh said that Mr Leong’s decision not to testify is “deeply disappointing”, as he had “let his supporters down and he has let Singaporeans down”.

“We have a situation where the plaintiff has turned up in court and gone into the stand, unafraid of any questions and ready to defend his position. And yet the person who alleges that he has abused the process of the court has turned tail and fled,” he said.

Mr Lim, however, retorted that Mr Singh’s remarks were “in the nature of a political speech” intended “to humiliate my client”.

“Your Honour, I am a politician, but in this court, I have played out my professional duty as a lawyer and only as a lawyer,” said Mr Lim.

He posited that his decision not to call evidence for the defence was based on the conclusion that PM Lee’s case “is so frivolous and vexatious as to be laughable, and should be laughed out of court”.

Thus, it is not a question of whether Mr Leong is brave enough to testify in court, said Mr Lim.

“We are not going to help this plaintiff who has come to this place to pollute the fountain of justice,” he concluded.

The hearing has been adjourned to 2.30pm on 30 November.

Background of the case

The defamation suit concerns an article by shared by Mr Leong 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, published by “Malaysian-based social news network” The Coverage, alleged that PM Lee had entered “several unfair agreements” with Najib Razak, 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.

It is noted in Mr Leong’s submissions that he did not include any accompanying text alongside the article at the time he shared the article on 7 November 2018.

Mr Leong took down the article at 7.30am on 10 November 2018 after being instructed by the Info-communications Media Development Authority (IMDA) to do so a day prior.

Prior to his removal of the post on 10 November, the court noted that Mr Leong’s article had garnered “22 ‘reactions’, five ‘comments’, and 18 ‘shares’”.

A writ of summons was subsequently filed by PM Lee against Mr Leong on 20 November that year for defamation, on the grounds that the offending article created the “false and baseless” impression that PM 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 PM Lee was “complicit in criminal activity” relating to the Malaysian state fund.

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