In a landmark case concerning freedom of speech in Singapore, the State Courts have upheld the right of a Hainan clan member to speak against the leader’s governance of an affiliated company.
The clan leader, Foo Jong Peng, had applied for a protection order under Section 12 of the Protection from Harassment Act (POHA) to prevent the member, Wee Teck Hwa, from criticising him through various channels.
This included corresponding with him verbally or via the written form, posting about him on social media, and speaking to the press about him, among other actions sought in the order.
Mr Foo also sought a protection order to prevent any individual from publishing or continuing to publish any and all materials regarding his dispute with Mr Wee.
Mr Foo is the chairman of the Kheng Chiu Tin Hou Kong, an incorporated company and financial arm of the Singapore Hainan Hwee Kuan.
Mr Wee is a member of both the Kheng Chiu Tin Hou Kong and the Singapore Hainan Hwee Kuan.
In his affidavit, Mr Foo pointed out that Mr Wee had repeatedly posted about him on Facebook.
Such posts included a 2012 article by Chinese daily Lianhe Wanbao on Mr Foo’s extramarital affair and a photograph of a document stating that Mr Foo had been declared a bankrupt in 1992.
Mr Foo’s lawyers submitted that while their client does not deny the truth of the Lianhe Wanbao article, Mr Wee’s repeated postings on Facebook had intended to cause harassment, alarm or distress.
The post on the bankruptcy search, they submitted, contained “half-truths”, as Mr Foo had already been discharged from bankruptcy.
Mr Wee’s posts, however, gave viewers the impression that Mr Foo was still bankrupt, they argued.
Mr Foo’s lawyers also argued that Mr Wee’s sole post about the alleged correspondence between Mr Foo and a ‘Lawyer Cheng’ had violated Sections 3 and 4 of the POHA and was likely to persist.
The correspondence reportedly detailed a list of dates and persons with whom Mr Foo had disputes with. It also stated that the Kheng Chiu Tin Hou Kong had never been peaceful since Mr Foo stepped in and that Mr Foo was “a stupid fool”.
Wee’s behaviour reasonable in the context of being unable to “air his grievances” regarding Foo’s management of company: Judge
Dismissing Mr Foo’s application, District Judge Peter Lo on 11 January highlighted that in order for a protection order to be granted under Section 12 of the POHA, Mr Foo had to demonstrate the following:
- That Mr Wee had breached either Section 3 or 4 of the POHA;
- That the breach was likely to persist, or that Mr Wee was likely to contravene Section 3 or 4 of the POHA; and
- That it would be just and equitable in all the circumstances for the Court to issue a protection order.
Section 3 of POHA touches on threatening, abusive, or insulting words or behaviour expressed with the intent to cause harassment, alarm or distress, while Section 4 of the Act refers to such words of behaviour that was likely to result in harassment, alarm or distress.
While Mr Wee’s repeated posts on Mr Foo’s affair and bankruptcy could be said to have likely caused Mr Foo some degree of alarm or distress, Judge Lo concurred with Mr Wee’s argument that his conduct toward Mr Foo was reasonable in the context of being unable to “air his grievances” regarding Mr Foo regarding the chairman’s management of the company.
The company, Mr Wee alleged, had not held any elections since 2012 or Annual General Meetings (AGM) since 2013, which the judge noted would have given Mr Wee an avenue to air the said grievances.
“I am of the view that as Chairman of the Company and a leader in the Hainanese community, it would be reasonable for the Applicant to expect that he would be subject to criticism from others in the community,” said Judge Lo, adding that even Mr Foo himself had conceded to this during cross-examination.
The judge was also unconvinced by Mr Foo’s argument that Mr Wee could have contacted him or sent a letter asking him to step down from the chairman position, as “there was no indication” that Mr Foo would have done so even if Mr Wee had made such a request.
“In the absence of any other avenues, since no AGM or elections were in sight, I find that it was reasonable for the Respondent to have made the Facebook posts on the Wanbao Article,” Judge Lo reasoned.
Addressing the bankruptcy search posts, Judge Lo rejected Mr Foo’s “half-truths” claim, as “it was clear that the words used did communicate” that Mr Foo was once [Judge Lo’s emphasis] declared bankrupt.
The use of the word “once”, said the judge, served as a “clear qualification that would not objectively cause anyone to think” that Mr Foo was still bankrupt.
Judge Lo also found that the single post on the ‘Lawyer Cheng’ correspondence, including the “a stupid fool” statement, was not sufficient to have caused any harassment, alarm or distress to Mr Foo.
Similar to the affair and bankruptcy posts, Mr Foo, the judge noted, did not dispute the truth of the contents of the ‘Lawyer Cheng’ post.
Protection order sought by Foo “unreasonably wide and uncalled for”, insufficient evidence to prove Wee had engaged in acts Foo sought to prohibit: Judge
Touching on the protection order sought by Mr Foo, Judge Lo agreed with Mr Wee’s submission that the order sought by Mr Foo was “unreasonably wide and uncalled for”, particularly the part where Mr Foo seeks to prohibit any mention of himself or his family on social media and any other means of communication.
“With the Respondent [Mr Wee] only having a limited number of Facebook friends (numbering around 200+), even if the Facebook posts were set to be viewable by the public, it was not likely that members of the general public would stumble upon them unless they were being searched for specifically,” said the judge.
Mr Foo, the judge found, had also given no evidence on whether Mr Foo had previously engaged in acts specified in the order sought, “save for a submission” on how Mr Wee’s conduct had resulted in him and his wife receiving threatening phone calls, and even “endless calls from relatives, friends, acquaintances and even a minister to explain the past as well as updates of the case”.
“In this regard, I find that there was insufficient evidence adduced to prove that such phone calls had been received or that the phone calls were related in some way to the Respondent’s Facebook Posts,” said Judge Lo.
Stifling of legitimate criticism against any community or national leader is “the single greatest danger to our constitutional right of free speech presented by POHA” : Lawyer M Ravi
Mr Wee’s lawyer M Ravi in a Facebook post on Monday said that Judge Lo had “issued a fair and a robust reasoning”.
Mr Ravi said that the stifling of legitimate criticism against any community or national leader is “the single greatest danger to our constitutional right of free speech presented by POHA”.
He recounted how Mr Wee “felt harrassed (sic) by this action when he turned up at my office” together with Mr Wee’s former counsel Cheng Kim Kuan.
Mr Wee, added Mr Ravi, was also “bewildered as to why he should he face a court action for questioning his community leader’s moral and financial conduct”.
“He asked why ordinary folks with like him cannot ask how the Clan organisation is run,” Mr Ravi recalled.
Wee’s POHA case “has deep implications going beyond the parties”; entails public interest issue of whether Singapore citizens should be found liable for speaking up against community or national leaders: Wee’s former counsel Cheng Kim Kuan
Mr Cheng of K.K. Cheng & Co — who assisted Mr Ravi in Mr Wee’s case as the latter’s former lawyer — said that he was “conflicted out” and subsequently instructed Mr Ravi to “take over the matter in July 2019”.
“This is the first brief received by Mr M Ravi when he returned to practice in July 2019,” he said, adding that Mr Ravi had agreed to work on Mr Wee’s case for a token fee “despite the inherent challenges of the case”.
Touching on the case itself, Mr Cheng opined that Mr Wee’s POHA case “has deep implications going beyond the parties”, as it entails exploring a public interest matter of whether a Singapore citizen should be found liable for speaking the truth of a community or national leader.
“Going a step further, should a Singapore citizen be found liable for expressing an opinion or making a comment founded on the truths of any community or national leader? This decision therefore has grave bearing on our constitutional right to free speech,” he stressed.
On behalf of Mr Wee, Mr Ravi sought an amount of S$5,000 in costs plus disbursements, as the S$3,000 asked for by Mr Foo’s lawyers were too low.
Judge Low subsequently decided on an all-in fixed sum of S$4,500 to be paid to Mr Wee.