Trial highlights of defamation suit between Prime Minister Lee Hsien Loong and Terry Xu

The defamation trial launched by Prime Minister Lee Hsien Loong (PM Lee) against Chief Editor of The Online Citizen (TOC), Terry Xu (Xu) began with great fanfare 30 November with hopeful spectators queuing as early as 4 a.m. to nab a seat. While the trial has ended (for now) on 3 December, both sides will prepare Written Submissions for the court to consider and the trial will likely reconvene in February 2021.For those unaware, the trial centres around the publication by TOC, of an article entitled “PM Lee’s wife, Ho Ching weirdly shares article on cutting ties with family members”, which contained alleged defamatory statements made by PM Lee’s siblings, Lee Hsien Yang and Dr Lee Wei Ling in relation to the dispute surrounding the late Lee Kuan Yew's (LKY) house at 38 Oxley Road. A cornerstone of the lawsuit is that Lee has claimed that the article in question had gravely injured his character and reputation and that he had been “brought into public scandal, odium and contempt” as a result.The four-day hearing threw up some notable issues and questions.DAY 1 - 30 NovemberIssue 1 : No loss suffered by PM Lee A key issue raised on the first day of the trial by Lim Tean (Lim), who represents Xu is the question of damage. Lim contended that PM Lee had suffered absolutely no loss as a result of the article published by TOC. Lim went on to highlight the fact that PM Lee and his team had comfortably won the Ang Mo Kio group representation constituency in this year’s general election.Issue 2: No revisiting of PM Lee's act of not disclosing documents during discovery The issue of the disclosure of documents also arose when Justice Audrey Lim disallowed Lim's question to PM Lee in relation to the disclosure of correspondence between members of the Lee family with regards to 38 Oxley Road. The Judge disallowed the question on the basis that an application made by Xu to obtain certain documents from PM Lee in relation to the defamation suit filed by the PM against him were already dismissed at a closed-door hearing in chambers in March this year.Instances of communication between Lee and his family that Xu had sought included:

• Correspondence from LKY to PM Lee on the removal of the latter as an executor of his will;
• Correspondence between PM Lee and his siblings Lee Hsien Yang and Dr Lee Wei Ling regarding the family home, dated 20 Jul 2011 to 31 Oct 2012; and
• Correspondence between PM Lee and LKY on the family home, dated 20 Jul 2011 to 31 Oct 2012.

Issue 3: Questions on whether or not Xu was sued because he was a Government criticLim suggested in court that PM Lee was going after Xu because Xu was a "small thorn at his side" because PM Lee had taken no action against his siblings who had made the allegedly defamatory remarks while he has sued Xu for replicating the comments. The judge was however of the opinion that parties should "move on" as "the plaintiff is entitled to choose who he wants to sue in any case, not just in defamation."Issue 4 : Using the Prime Minister's Office (PMO) to send a letter to Xu instead of using his personal lawyersLim argued that in using the PMO to send the letter, PM Lee was hoping to intimidate Xu. Lee, however, denied this.DAY 2 - 1 DecemberIssue 1 - PM Lee and Ho Ching were removed as executors of LKY's willIt was revealed in court that Lee and his wife Ho Ching were removed as executors of PM Lee’s father and Singapore’s founding prime minister LKY’s first will with Lee Hsien Yang and Dr Lee Wei Ling appointed instead. PM Lee had initially denied that Ho Ching was ever an executor but withdrew that statement when he was shown a copy of that will in court.Issue 2 - Confirmation from Lee that LKY had initially wanted to bequeath the 38 Oxley Road property to Lee's siblings before being convinced not to.PM Lee testified that the late LKY had intended to pass down the 38 Oxley Road property to Mr Lee Hsien Yang and Dr Lee Wei Ling before he was convinced that the house would potentially be gazetted by the government.Issue 3 - PM Lee has the final word in relation to 38 Oxley RoadPM Lee had earlier denied being in favour of preserving the 38 Oxley Road property and argued that he had to act according to the “government’s rights and powers” even if it means to accommodate other options if the house is to be preserved as he could not go against the cabinet when it came to the property. However, It was revealed in court that LKY had said that PM Lee “as PM has the final word” on matters pertaining to the 38 Oxley Road property and that he "cannot call the shots".DAY 3 - 2 DecemberIssue 1: The irony of Ho Ching's Facebook postIn response to suggestions that Xu had used Ho Ching's Facebook post as a peg to attack against PM Lee, Xu pointed out that it was ironic for Ho Ching to be posting about toxic relationships within family members, "because she is one of the toxic members which the joint siblings have been alleging”.Issue 2: Writing both sides of the storyWhen asked by PM Lee's lawyer, Davinder Singh (Singh) why Xu had not written Lee's version of events but only produced the version of the siblings, Xu stated that he would not be able to write PM Lee's version because of PM Lee's refusal to engage with TOC.“My position is that even if I wait for another ten years, he will not reply (to) my questions.”Issue 3 - K Shanmugam's involvement in the willPM Lee was confronted with an email disclosing Home Affairs and Law Minister, K Shanmugam’s (Shanmugam) assistance on LKY’s will, referencing his comment on preserving 38 Oxley Road for historical reasons.Referencing a Facebook post by Dr Lee Wei Ling on 17 June 2017, titled “Shanmugam was extensively consulted and advised my father over lunch”, Lim highlighted the portion of an email sent by Dr Lee Wei Ling to Shanmugam, which was copied to Lee Hsien Yang.The portion read:

“MM the father thinks Loong asked him to speak to the Cabinet because Loong wanted the Cabinet to tell the father they want it preserved. He is agreeable to your suggestion. I told him after you meet with Yang and me then we decide how to draft his will with regards to this house.”

Dr Lee in another email on 15 August 2011 wrote,

“There is a platoon of people trooping through Oxley right now. I don’t like it and it will be worse if it is ever open to public. Shan says Loong’s decision must be based on the historical value of Oxley.”

This seems to suggest that PM Lee wanted the Cabinet to tell LKY not to demolish the house which goes against his earlier assertion that he could not go against the Cabinet.DAY 4 - 3 DecemberIssue 1 : Kwa Kim LiIn a dramatic turn of events, Justice Audrey Lim, the judge presiding over the trial, dismissed Kwa Kim Li’s (KKL) application to set aside Xu’s subpoena on her to testify as a defence witness after hearing arguments on the matter.KKL, a senior partner at Lee&Lee, had previously told The Straits Times that she did not prepare Mr LKY’s last will. However, Dr Lee Wei Ling, had alleged that KKL had “extensively” discussed changes LKY wanted to make to his will before he signed the December 2013 will — the seventh and final will.“From late November 2013 all the way till Friday 13 December 2013, my father had had discussions and exchanged emails with KKL of Lee & Lee on what he wanted in his will. These included discussions of his immediately prior will.“The will my father signed on Tuesday 17 December 2013 reflected these prior discussions with his lawyer KKL,” Dr Lee Wei Ling claimed in a Facebook post on 30 April last year.Lee Hsien Yang similarly previously claimed that the will was “drafted by Kwa Kim Li of Lee&Lee”.Issue 2 - KKL's revelationsLKY’s lawyer Kwa Kim Li’s handwritten notes reveals Lee “has free rein” and "can handle Cabinet”. This goes against PM Lee's earlier assertions that he could not go against the CabinetIssue 3 - GazettingPM Lee was earlier questioned on why he did not clarify with LKY in email about 38 Oxley Road being gazetted. In other words, was LKY fully aware of the gazetting?There was no email that shows that PM Lee has told the late LKY that the house has been gazetted. Xu pointed out that  “the absence of Mr Lee Hsien Loong stating that this house has not been gazetted or would be gazetted is more telling,”What's next?Both parties have been asked to present Written Submissions to the court by January 2021 and the oral submissions will take place in February.