52 SINGAPORE LAW REPORTS [2010] 1 SLR
Review Publishing Co Ltd and another 
v 
Lee Hsien Loong 
and another appeal
[2009] SGCA 46
Court of Appeal — Civil A ppeals Nos 163 and 164 of 2008
Chan Sek Keong CJ, Andrew Phang Boon Leong JA and Judith Prakash J22 May 2009
Civil Procedure  — Pleadings — Amendment — Applicable principles governing
amendment of pleadings — Whether trial judge exercised discretion correctly to allowamendment of statement of claim after he aring of summary judgment applications
was over but before decision  was given — Whether it was just to allow amendment of
statement of claim — Whether appellants denied due process in that they were notgiven opportunity to amend their defence after amendment to statement of claim wasallowed
Tort  — Defamation — Defamatory statements — Fair comment — Justification —
Qualified privilege — Right-of-reply priv ilege — Derivative qualified privilege —
Reynolds  privilege — Natural and ordinary meaning of words — Rule in Slim v Daily
Telegraph Ltd  [1968] 2 QB 157 — Test for determining natural and ordinary
meaning of words — State of general knowledge of ordinary reasonable person —Whether ordinary reasonable person woul d understand offendin g words in article
published in Far Eastern Economic Review  to mean that respon dents were corrupt —
Whether court entitled to find a more defamatory meaning than that pleaded byplaintiff — Whether appellants could rely on defence of justification, fair comment or
derivative privilege based on ri ght-to-reply privilege — Whether Reynolds  privilege
was and had always been part of common law of Singapore — Whether Reynolds
privilege should be declared to be part of common law of Singapore — Whether
appellants as non-citizen could rely on constitutional free speech — Whether
rationale behind Reynolds  privilege ought to apply to Singapore citizens in context of
publication of matters of pu blic interest — Arts 14(1)( a), 14(2)( a) and 162
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)
Words and Phrases  — Meaning of corruption and/or corrupt — Whether meaning of
corruption included financial impropriet y — Whether National Kidney Foundation
and/or Durai had come to symbolise financial impropriety and/or corruption —
Whether offending words in article alleged corruption
Facts
In 2006, the Far Eastern Economic Review  (“FEER”) published an article written
by Mr Hugo Restall (“HR”), the editor of FEER, titled “Singapore’s ‘Martyr,’
Chee Soon Juan” in its July/August 2006 issue (Vol 169 No 6) (“the Article”).
The Article was published in connection  with an interview conducted by HR
with Dr Chee Soon Juan (“CSJ”), the secretary-general of the Singapore
Democratic Party (“SDP”). The Article fe atured CSJ’s account of his relationship
with the Singapore government, but also made significant reference to whatpaginator.book  Page 52  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 53
might be termed “the NKF Saga”, ie, the events surroundin g the National Kidney
Foundation (“NKF”) and Mr T T Durai (“Du rai”), the former chief executive of
the NKF, which arose out of the trial in 2005 of a libel action brought by the NKF
and Durai against Singapore Press Holdings  Ltd. The Article also used the NKF
Saga as a basis for comparing the way in which the NKF had been run during
Durai’s tenure with the way in wh ich Singapore had been governed by
“Singaporean officials”, who had (according to the Arti cle) “a remarkable record
of success in winning libel suits against their critics”.
Mr Lee Hsien Loong, the Prime Minister  of Singapore, and Mr Lee Kuan Yew,
the Minister Mentor in the Prime Mini ster’s Office and a senior Cabinet
Minister (collectively, “the Respondents” ), subsequently sued Review Publishing
Co Ltd, the publisher of FEER, and HR (collectively, “the Appellants”) in twosuits for defamation with respect to certai n statements in the Article. In the High
Court proceedings, the Respondents applied for summary judgment against the
Appellants on the basis that  the alleged offending wo rds in the Article (“the
Disputed Words”), in their natural and ordinary meaning, bore the defamatory
meaning that the Respondents were unfit for office because they were corrupt
and had set out to sue and suppress those who would question them for fear that
such questioning would ex pose their corruption. The Judge granted summary
judgment for both suits, having foun d that the Disputed  Words bore such
meaning contended by the Respondents and that the Appellants had no viabledefence in law, including the privileg e laid down by the House of Lords in
Reynolds v Times Newspapers Ltd  [2001] 2 AC 127 (“the Reynolds  privilege”).
LHL had initially pleaded a different meaning for the Disputed Words (whichthe Judge found the Disputed Words not to  bear), but had successfully amended
his statement of claim (“SOC”) in the course of the summary judgment
proceedings to plead (alternatively) the same meaning as that pleaded by LKY,
which the Judge found the Disputed Words to bear. The Appellants filed appeals
against the Judge’s decision in th e summary judgment applications.
Held, dismissing the appeals:
(1) The test for determining the natural and ordinary meaning of the
offending words in a de famation action was well settled in Singapore.
Essentially, the court would decide what meaning the words conveyed to an
ordinary reasonable person, not unduly su spicious or avid for scandal, using his
general knowledge and common sense. It was irrelevant what meaning was
intended by the maker or pu blisher of the statement ( ie, the defendant) or what
meaning was actually understood by the plaintiff. The natural and ordinary
meaning of the offending word s was not confined to their literal  or strict
meaning, but included inferences or implications that the ordinary reasonableperson might draw from those words in  the light of his general knowledge,
common sense and experience. Such in ferences or implications were not the
same as inferences or implications based on extrinsic evidence , which evidence
was not admissible as a matter of law in  the construction of the natural and
ordinary meaning of the offending words: at [27] to [29] and [31].
(2) The state of the ordinary reasonable person’s general knowledge would
play a pivotal role in determining the natural and ordinary meaning of the
offending words. Such state of genera l knowledge would naturally be affectedpaginator.book  Page 53  Monday, January 4, 2010  12:22 PM

54 SINGAPORE LAW REPORTS [2010] 1 SLR
and shaped by what was common knowledge in the public domain and by
significant (public) events which would reasonably be in the mind of the
ordinary reasonable person. The various defamation suits commenced over theyears by the Respondents, the NKF Saga, the SDP protest that took place outside
the CPF Building and the subsequent defamation proceedings arising from that
protest, were all part of the ordinary  reasonable person’s general knowledge,
given that these events happened relatively  shortly before the publication of the
Article and were all extensiv ely reported and featured in the local press and had
gained notoriety among the general public in Singapore: at [33], [34], [36], [40],
[41], [45] and [46].
(3) In determining whether the offending words were referable to the
plaintiff, the test was an objective  one, ie, whether the ordinary reasonable
person who, at the material time, was aware of the relevant circumstances or
special facts would reasonably understand the plaintiff to be referred to by the
offending words, and the context in which the words were used was also
relevant. The words “government”, “Singaporean officials” and “Singapore’s
great and good” in th e Disputed Words were referable to both the Respondents
in the context of the Article. The fact th at the offending words referred to a class
or body of persons was not, ipso facto , a bar to a successful claim in defamation
so long as the ordinary reasonable person could conclude that the statement
about the body of persons was capable of  being interpreted as referring to the
individual: at [49], [50] and [53].
(4) The fulcrum of the Article was the NKF Saga, which HR used as a basis of
comparison with the way in which Singapore had been governed by theRespondents, and the striking feature of  the Disputed Words was the deliberate
association and/or comparison which th ey made between the highly secretive
way in which Durai ran the NKF and the way in which the governmentcontrolled huge pools of public money in  government institutions. The ordinary
reasonable person would in all probability associate the NKF and/or Durai with
grave financial impropriety, abuse of power and/or dishonest practices, and
these were serious misdeeds which fell readily within the ambit of corruption. By
the time the Article was published, the association of the NKF and/or Durai with
corruption would have entered the public consciousness, given the intensepublicity and extensive coverage given to the NKF Saga in the local media:
at [66], [88] and [82].
(5) The statements in the Disputed Wo rds which directly associated the NKF
and/or Durai (as well as Durai’s misuse  of funds and the secretive nature in
which the NKF was run) with (a) the Singapore’s Government and government
officials, (b) the government officials’ control of huge pools of public money indifferent government institutions and (c) the non-transparency of suchinstitutions, would suggest to the ordinary reasonable person that the
Respondents were guilty of the same ki nd of wrongdoing that the NKF and/or
Durai were guilty of in the eyes of th e general public. The Disputed Words thus
bore the defamatory natural and or dinary meaning contended by the
Respondents: at [85] , [92] and [95].
(6) Order 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) gave the
court a wide discretion to allow pleadi ngs to be amended at any stage of the
proceedings on such terms as might be  just. The guiding principle was thatpaginator.book  Page 54  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 55
amendments to pleadings ought to be allowed if they would enable the real
question and/or issue in controversy be tween the parties to be determined and
delay per se  was not a valid objection. However, an important caveat was that it
had to be just to grant such leave, havi ng regard to all the circumstances of the
case. The applicable principles provided  a complete answer to the Appellants’
complaint of excessive dela y on LHL’s part in applyi ng for leave to amend his
pleadings. The Appellants did not argue th at they were prejudiced in a manner
which could not be compensated in costs and they were given the opportunity to
amend their defence. The delay was only apparent but not real in the sense that itwas caused to a large extent by the A ppellants’ own doing:  at [110], [113] and
[115].
(7) The rule laid down in Slim v Daily Telegraph Ltd  [1968] 2 QB 157 that the
court was not entitled to find a more  defamatory meaning than the meaning
pleaded by the plaintiff, although it mi ght find a less defamatory meaning was a
sensible and fair rule in defamation ca ses. The general rule in an adversarial
litigation system wa s that the plaintiff should be bound by his pleadings. There
was no reason why this rule should be departed from in a defamation action. Aplaintiff should be bound by the meaning which he had pleaded, subject to anychange brought about by an amendment to his SOC so as to plead a moredefamatory or variant meaning. Althou gh a more serious allegation would
usually include a less serious one, with the result that the court might find a lessdefamatory meaning than that originally pleaded, this principle did not apply
without qualification for there might come  a point where a less serious allegation
would amount to a substantially differe nt allegation from that originally
pleaded. In such circumstances, the plaintiff should amend his pleadings to
expressly plead the less defamatory meaning: at [128], [130] and [131].
(8) A defendant who relied on the defence of justification  had to plead
precisely the meaning which he sought to justify, and to succeed in the defence,
he need only prove that the substance or  gist of the offend ing words was true.
The defendant was not obliged to justify the particular defamatory meaning put
forward by the plaintiff, but he  had to  plead clearly the different meaning which
h e  s o u g h t  t o  j u s t i f y .  A s  t h e  A p p e l l a n t s pleaded justification in respect of a
different meaning of the Disputed Words from that contended by theRespondents, the defence naturally fell by the wayside once it was found that theDisputed Words bore the meaning pleaded by the Respondents: at [133] to[135].
(9) To successfully invoke the defence of fair comment, the defendant  had to
prove four elements, ie, the words complained of were comments, the comments
were on a matter of public interest, the comments were based on facts and thecomments were such that a fair-minded person could honestly make on the factsproved. The context of the Article as well as the tone and language employed
therein would leave the ordinary reasonable person with no doubt that theAppellants were putting across factual st atements rather than comments. The
relevant statements not only contained no hint of any opinion or conclusion, butalso appeared to be definitive statements of facts. Even if the relevant statements
were comments, they were not comments based on fa cts: at [139], [140], [144],
[149] and [150].paginator.book  Page 55  Monday, January 4, 2010  12:22 PM

56 SINGAPORE LAW REPORTS [2010] 1 SLR
(10) Given the applicable legal principles  on the defence of fair comment and
the difficulty of distinguishing comments from statements of fact, it would be
incumbent upon the media to make it clear in its editorials or opinion pieceswhich statements were comments and wh ich statements were simply factual
statements or imputations of fact. Such measures would not conclusively  denote
whether the statements in question were comments or statements of fact, but
would, however, serve as a strong indi cator to the court of how the statements
concerned were likely to be understood  by the ordinary reasonable person:
at [145] to [148].
(11) The right-of-reply privilege only en abled a defendant to repel the charges
made against him by the plaintiff, but not to bring fresh and irrelevant
accusations against the plai ntiff. Assuming that CSJ was indeed exercising his
right of reply, it was clear that, in doin g so, he had crossed the line by claiming
that the Respondents were themselves corrupt. To begin with, save for the quote
of CSJ’s response in para 9 of the Article,  the rest of the statements in the other
portions of the Disputed Words were stat ements of facts made by the Appellants
themselves and there was nothing in the Article to suggest that CSJ was
exercising his right-of-reply privilege. It followed that there was no derivative
qualified privilege based on CSJ’s alle ged right of reply which the Appellants
could invoke: at [158] to [160] and [168].
(12) The Appellants’ argument that the Reynolds  privilege was and had always
been part of Singapore’s common law wa s wrong in law. First, the proposition
was based on the erroneous premise that the declaratory theory (“the
Declaratory Theory”) was a principle of the common law. Second, theDeclaratory Theory was, to all intents and purposes, no longer part of the
current orthodoxy. Third, the Reynolds  privilege did not fall within the body of
English common law which continued, pursuant to s 3(1) of the Application ofEnglish Law Act 1993 (Act 35 of 1993), to be  part of the law of Singapore after
the commencement of that Act. Fourth, Parliament enacted legislation to
expressly restrict constitutional free sp eech when that constitutional right came
into existence in Singapor e in that Art 105(1) of the 1963 State Constitution
(now Art 162 of the Consti tution of the Republic of Singapore (1985 Rev Ed,
1999 Reprint) (“the Singapore Constitu tion”)) served as  a law-enacting
provision by continuing in force the then existing law of defamation. Fifth, in so
far as the proposition turned on the prin ciple of constitutional supremacy, the
Appellants did not have the requisite locus standi  to invoke the principle as they
were not Singapore citizens and Art 14(1)( a) of the Singapore Constitution
expressly provided th at only Singapore citizens we re entitled to constitutional
free speech: at [239] to [241], [243] , [248], [250], [254] , [257] and [258].
(13) The Reynolds  privilege was not a natural common law development, but
was brought about by Art 10 of the Euro pean Convention for the Protection of
Human Rights and Fundamental Freedom s and s 12 of the Human Rights Act
1998 (c 42) (UK). This development impelled  the English courts to strike a new
balance between the competing interests of freedom of speec h and protection of
reputation. As such, the Reynolds  privilege could not be declared to be part of
Singapore’s common law on the specific ground advanced by the Appellants that
it was a purely common la w development. If the Reynolds  privilege were to be
adopted, it would have to be adopted on the basis that the freedom of speechpaginator.book  Page 56  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 57
enshrined in Art 14(1)( a) of the Singapore Constitution was likewise a right
based on a constitutional or higher le gal order foundation. The Appellants could
n o t ,  h o w e v e r ,  m a k e  s u c h  a n  a r g u m e n t  because constitutional free speech in
Singapore was limited to Singapore citizens only: at [261], [263], [264].
(14) The conclusion was not, however, the end of the matter for Singapore
citizens. The rationale behind the Reynolds  privilege – viz, that freedom of
speech was a right based on a constituti onal or higher legal order foundation
and, thus, freedom of expr ession was the rule and regulation of speech was the
exception requiring justification – was equally relevant to  Singapore citizens
because of Art 14(1)( a) of the Singapore Co nstitution: at [265].
(15) The crucial question vis-à-vis  Singapore citizens (“the key question”) was
whether or not, in the context of publication of matters of public interest, theReynolds  rationale ought to apply so that constitutional free speech would
become the rule and restrictions on this right become the exception. The
question had not hitherto been decide d by the Court of Appeal. The question
was, however, not a live issue in the pr esent appeals as far as the Appellants were
concerned because, as non-citizens, they were not entitled to enjoy
constitutional free speech in Singapore: at [266] and [267].
[Observation: In determining whether th e key question should be answered in
the affirmative or the negative, the cour ts in essence had to decide how the
balance between constitutional free speech  and protection of reputation should
be struck in Singapore, and should bear  in mind two salient points. First, the
courts had to be mindful of the extent  to which they could decide whether
constitutional free speech should prevail over protection of reputation given that
Art 14(2)( a) also expressly provided that it was Parliament which had the final
say on how the balance between consti tutional free speech and protection of
reputation should be struck. Second, th e courts had to remember that striking
the balance between freedom of expression and protecti on of reputation would
call for a value judgment which depe nded upon local political and social
conditions. Considerations such as the role of the media in Singapore and thelocal emphasis on honesty and integrity in public discourse would be relevant
factors in determining the key question but they were  not exhaustive: at [268] to
[271] and [290].
If the court ruled on the key question in the affirmative, it would have to go
on to decide how the new balance betw een these two competing interests should
be struck. In this regard, the court shou ld note the divergent approaches adopted
by other common law courts on this issue and decide whether any of the existing
approaches was relevant to Singapore’ s local conditions and circumstances:
at [286] and [290].].
Case(s) referred to
A Balakrishnan v Nirumalan K Pillay  [1999] 2 SLR(R) 462; [1999] 3 SLR 22 
(refd)
Aaron Anne Joseph v Cheong Yip Seng  [1996] 1 SLR(R) 258; [1996] 1 SLR 623 
(refd)
Abrams v United States  250 US 616 (1919) (refd)
Al-Fagih v H H Saudi Research & Marketing (UK) Ltd  [2002] EMLR 13 (refd)paginator.book  Page 57  Monday, January 4, 2010  12:22 PM

58 SINGAPORE LAW REPORTS [2010] 1 SLR
Alesana v Samoa Observer Co Ltd  [1998] WSSC 1 (refd)
Alithia Publishing  Co Ltd v Cyprus  Application No 17550 of 2003 (22 May 2008) 
(unreported) (refd)
Asia Business Forum Pte Ltd v Long Ai Sin  [2004] 2 SLR(R) 173; [2004] 2 SLR 
173 (refd)
B Surinder Singh Kanda v Government  of the Federation of Malaya  [1962] AC 
322 (refd)
Bank of China v Asiaweek Ltd  [1991] 1 SLR(R) 230; [1991] SLR 486 (refd)
Bass v TCN Channel Nine Pty Ltd  (2003) 60 NSWLR 251 (refd)
Blackshaw v Lord  [1984] QB 1 (refd)
Bonnick v Morris  [2003] 1 AC 300 (refd)
Chakravarti v Advertiser Newspapers Ltd  (1998) 193 CLR 519 (refd)
Chan Chook Tim v Wong Kwok Hung  [2003] HKCU 301 (refd)
Charleston v News Group Newspapers Ltd  [1995] 2 AC 65 (refd)
Chee Siok Chin v Minister for Home Affairs  [2006] 1 SLR(R) 582; [2006] 1 SLR 
582 (refd)
Chen Cheng v Central Christian Church  [1998] 3 SLR(R) 236; [1999] 1 SLR 94 
(folld)
Cheng Albert v Tse Wai Chun Paul  [2004] 4 HKC 1 (refd)
Christchurch Press Co Ltd v McGaveston  [1986] 1 NZLR 610 (refd)
Chun Thong Ping v Soh Kok Hong  [2003] 3 SLR(R) 204; [2003] 3 SLR 204 (refd)
Chwee Kin Keong v Digilandmall.com Pte Ltd  [2005] 1 SLR(R) 502; [2005] 1 SLR 
502 (refd)
Clarke v Norton  [1910] VLR 494 (refd)
Cookson v Harewood  [1932] 2 KB 478 (refd)
Cusson v Quan  [2007] ONCA 771 (refd)
Dato’ Seri Anwar bin Ibrahim v Da to’ Seri Dr Mahathir bin Mohamad  [1999] 
4 MLJ 58 (refd)
Dato’ Seri Anwar Ibrahim v Da to’ Seri Dr Mahathir Mohamad  [2001] 2 MLJ 65 
(refd)
Dato’ Seri S Samy Vellu v Penerb itan Sahabat (M ) Sdn Bhd (No 3)  [2005] 5 MLJ 
561 (refd)
Dow Jones Publishing Co (Asia) Inc v AG  [1989] 1 SLR(R) 637; [1989] SLR 70 
(refd)
English and Scottish Co-operative Properties Mortgage and Investment Society Ltd 
v Odhams Press Ltd  [1940] 1 KB 440 (refd)
Galloway v Telegraph Group Ltd  [2006] EMLR 11 (refd)
Giannarelli v Wraith  (1988) 165 CLR 543 (refd)
Goh Chok Tong v Jeyare tnam Joshua Benjamin  [1998] 2 SLR(R) 971; [1998] 
3 SLR 337 (refd)
Gordon Berkeley Jones v Clement John Skelton  [1963] 1 WLR 1362 (refd)
Halim bin Arsyat v Sistem Televisyen Malaysia Bhd  [2001] 6 MLJ 353 (refd)
Hamilton v Clifford  [2004] EWHC 1542 (refd)
Hasnul bin Abdul Hadi v Bulat bin Mohamed  [1978] 1 MLJ 75 (refd)
Hunt v The Star Newspaper Co Ltd  [1908] 2 KB 309 (refd)paginator.book  Page 58  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 59
Invar Realty Pte Ltd v Kenzo Tange Urtec Inc  [1990] 2 SLR(R) 66; [1990] SLR 791 
(refd)
Jameel (Mohammed) v Wall St reet Journal Europe Sprl  [2005] QB 904 (refd)
Jameel (Mohammed) v Wall St reet Journal Europe Sprl  [2007] 1 AC 359 (refd)
Jeyaretnam Joshua Benj amin v Lee Kuan Yew  [1990] 1 SLR(R) 337; [1990] SLR 
38 (refd)
Jeyaretnam Joshua Benjamin v Lee Kuan Yew  [1992] 1 SLR(R) 791; [1992] 2 SLR 
310 (refd)
Jeyasegaram David v Ba n Song Long David  [2005] 2 SLR(R) 712; [2005] 2 SLR 
712 (refd)
John Fairfax Publicat ions Pty Ltd v Rivkin  (2003) 201 ALR 77 (refd)
Kemsley v Foot  [1952] AC 345 (refd)
Ketteman v Hansel Properties Ltd  [1987] AC 189 (refd)
Kleinwort Benson Ltd v Lincoln City Council  [1999] 2 AC 349 (refd)
Knight Glenn Jeyasingam v PP  [1992] 1 SLR(R) 523; [1992] 1 SLR 720 (refd)
Knupffer v London Express Newspaper Ltd  [1944] AC 116 (refd)
Lange v Atkinson  [1998] 3 NZLR 424 (refd)
Lange v Atkinson  [2000] 1 NZLR 257 (refd)
Lange v Atkinson  [2000] 3 NZLR 385 (refd)
Lange v Atkinson and Australian Consolidated Press NZ Ltd  [1997] 2 NZLR 22 
(refd)
Lange v Australian Broadcasting Corporation  (1997) 145 ALR 96 (refd)
Lau Chee Kuan v Chow Soong Seong  [1955] MLJ 21 (refd)
Lee Hsien Loong v Review Publishing Co Ltd  [2007] 2 SLR(R) 453; [2007] 2 SLR 
453 (refd)
Lee Hsien Loong v Singapore Democratic Party  [2007] 1 SLR(R) 675; [2007] 
1 SLR 675 (refd)
Lee Hsien Loong v Singapore Democratic Party  [2008] 1 SLR(R) 757; [2008] 
1 SLR 757 (refd)
Lee Kuan Yew v Davies Derek Gwyn  [1989] 2 SLR(R) 544; [1989] SLR 1063 (refd)
Lee Kuan Yew v Jeyaretnam Joshua Benjamin  [1979–1980] SLR(R) 24; 
[1978–1979] SLR 429 (refd)
Lee Siew Chun v Sourgrapes Packaging Products Trading Pte Ltd  [1992] 3 SLR(R) 
855; [1993] 2 SLR 297 (refd)
Leech v Independent Newspapers (Ireland) Ltd  [2007] IEHC 223 (refd)
London Artists Ltd v Littler Grade Organisation Ltd  [1969] 2 QB 375 (refd)
Loutchansky v Times Newspapers Ltd (Nos 4 and 5), Loutchansky v Times 
Newspapers Ltd (Nos 2, 3 and 5)  [2002] QB 783 (refd)
Loveday v Sun Newspapers Ltd  (1938) 59 CLR 503 (refd)
Mark Ignatius Uttley @ Ma rk Ostyn v Wong Kam Hor  [2002] 4 MLJ 371 (refd)
Microsoft Corp v SM Summit Holdings Ltd  [1999] 3 SLR(R) 465; [1999] 4 SLR 
529 (folld)
Millar Gavin James QC, Re [2007] 3 SLR(R) 349; [2007] 3 SLR 349 (refd)
Millar Gavin James QC, Re [2008] 1 SLR(R) 297; [2008] 1 SLR 297 (refd)
Mitchell v Sprott  [2002] 1 NZLR 766 (refd)paginator.book  Page 59  Monday, January 4, 2010  12:22 PM

60 SINGAPORE LAW REPORTS [2010] 1 SLR
Morgan v Odhams Press Ltd  [1971] 1 WLR 1239 (refd)
Mosley v News Group Newspapers Ltd  [2008] EMLR 20 (refd)
National Media Ltd v Bogoshi  1998 (4) SA 1196 (refd)
New York Times Co, The v L B Sullivan  376 US 254 (1964) (refd)
Oei Hong Leong v Ban Song Long David  [2005] 1 SLR(R) 277; [2005] 1 SLR 277 
(refd)
Oversea-Chinese Banking Corp Ltd v Wright Norman  [1994] 3 SLR(R) 410; 
[1994] 3 SLR 760 (refd)
Plaintiff S 157/2002 v The Commonwealth of Australia  (2003) 211 CLR 476 
(refd)
Price Waterhouse Intrust Ltd v Wee Choo Keong  [1994] 2 SLR(R) 1070; [1994] 
3 SLR 801 (refd)
Prichard v Krantz  (1984) 37 SASR 379 (folld)
Reynolds v Times Newspapers Ltd  [1998] 3 WLR 862 (refd)
Reynolds v Times Newspapers Ltd  [2001] 2 AC 127 (refd)
Rifli Bin Asli v Ahmed Kawari Isa  (10 September 2001) (unreported) (refd)
Roberts v Gable  [2008] QB 502 (refd)
Rubber Improvement Ltd v Daily Telegraph Ltd  [1964] AC 234 (folld)
Seaga v Harper  [2009] 1 AC 1 (refd)
Skuse v Granada Television Ltd  [1996] EMLR 278 (refd)
Slim v Daily Telegraph Ltd  [1968] 2 QB 157 (folld)
Soon Peng Yam v Maimon bte Ahmad  [1995] 1 SLR(R) 279; [1996] 2 SLR 609 
(refd)
Susilawati v American Express Bank Ltd  [2009] 2 SLR(R) 737; [2009] 2 SLR 737 
(refd)
Sykes v Fraser  (1974) 39 DLR (3d) 321 (refd)
Tang Liang Hong v Lee Kuan Yew  [1997] 3 SLR(R) 576; [1998] 1 SLR 97 (refd)
Techmex Far East Pte Ltd v Logicraf t Products Manufacturing Pte Ltd  [1997] 
2 SLR(R) 919; [1998] 1 SLR 483 (refd)
Toogood v Spyring  (1834) 1 C M & R 181; 149 ER 1044 (refd)
Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd  [1996] 1 MLJ 393 
(refd)
Turner v Metro-Goldwyn-Mayer Pictures Ltd  [1950] 1 All ER 449 (folld)
Workers’ Party v Tay Boon Too  [1974–1976] SLR(R) 204; [1972–1974] SLR 621 
(refd)
Wright Norman v Oversea-Chinese Banking Corp Ltd  [1993] 3 SLR(R) 640; 
[1994] 1 SLR 513 (refd)
Yaqoob v Asia Times Online Ltd  [2008] 3 HKC 589 (refd)
Yeap Cheah Neo v Ong Cheng Neo  (1875) LR 6 PC 381 (refd)
Legislation referred to
Application of English Law Act 1993 (Act 35 of 1993) s 3(1)
Application of English Law Act (Cap 7A, 1994 Rev Ed) s 3(1) (consd);
s3 ( 2 )
Constitution of the Republic of  Singapore (1985 Rev Ed) Arts 14(1)( a), 162paginator.book  Page 60  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 61
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) 
Arts 14(1)( a), 14(2)( a), 162 (consd);
Arts 14(1)( b), 14(1)( c)
Defamation Act (Cap 75, 1985 Rev Ed) s 12
Defamation Ordinance 1960 (No 7 of 1960)
Films Act (Cap 107, 1998 Rev Ed)
Films (Amendment) Act 2009 (Act 13 of 2009)
Minor Offences Ordinance 1906 (No 13 of 1906) s 6
Minor Offences Act (Cap 102, 1970 Ed) s 5
Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev 
Ed) ss 5, 13A, 13B
Penal Code (Cap 119, 1955 Ed) ss 191, 193, 298, 504
Penal Code (Cap 103, 1970 Ed) ss 191, 193, 298, 504
Penal Code (Cap 224, 1985 Rev Ed) s 417Penal Code (Cap 224, 2008 Rev Ed) ss 191, 193, 298, 504
Prevention of Corruption Act (Cap 241, 1985 Rev Ed) s 6( c) (consd);
ss 6( a), 6(b)
Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 6(c) (consd);
s6
Public Entertainments Act (Cap 259, 1970 Ed) s 3
Public Entertainments and Meet ings Act (Cap 257, 2001 Rev Ed) s 3
Public Entertainments Ordinance 1958 (No 40 of 1958) s 3
Republic of Singapore Independence  Act 1965 (Act 9 of 1965) ss 6, 13
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 20 r 5(1) (consd);
O 57 r 13(1)
Sabah, Sarawak and Singapore (State Co nstitutions) Order in Council 1963 (GN 
No S 1 of 1963) Arts 105, 105(1), Sched 3
Subordinate Courts Act (Cap 321, 1985 Rev Ed, 1993 Reprint) s 8
Subordinate Courts Act (Cap 321, 2007 Rev Ed) s 8
Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) s 8
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 7
Basic Law of the Hong Kong Special Administrative Region of the People’s 
Republic of China (Cap 2101) (HK)
Bill of Rights Act 1990 (NZ) s 14
Commonwealth of Australi a Constitution Act (Cth)
Constitution of Malaysia (1962 Reprin t) (Malaya) Arts 10(1)(a), 10(1)(b), 
10(2)(a), 10(2)(b), 10(2)(c)
Defamation Act (1974) (NSW) s 22
Defamation Act 1992 (NZ) s 19
Hong Kong Bill of Rights Ordinance (Cap 383) (HK)
Human Rights Act 1998 (c 42) (UK) ss 12, 12(4)(a), 12(4)(a)(ii)
Peter Cuthbert Low and Han Lilin (Colin Ng & Partners LLP) for the appellants in 
Civil Appeals Nos 163 and 164 of 2008;paginator.book  Page 61  Monday, January 4, 2010  12:22 PM

62 SINGAPORE LAW REPORTS [2010] 1 SLR
Davinder Singh SC and Wilson Wong (Dre w & Napier LLC) for the respondent in 
Civil Appeal No 163 of 2008 and the respondent in Civil Appeal No 164 of 2008.
[Editorial note: The decision from whic h this appeal arose is reported at [2009]
1 SLR(R) 177.]
7 October 2009 Judgment reserved.
Chan Sek Keong CJ (delivering the judgment of the court):
Introduction
1 The present two appeals before us, Civil Appeal No 163 of 2008
(“CA 163”) and Civil Appeal No 164 of 2008 (“CA 164”), are against the
decision of the High Court judge (“the Judge”) in summary judgmentapplications filed in two sepa rate defamation suits (see Lee Hsien Loong v
Review Publishing Co Ltd  [2009] 1 SLR(R) 177 (“the Judgment”)).
2 CA 163 arises from Suit No 539 of  2006 (“Suit 539”). The plaintiff in
that action, who is th e respondent in CA 163, is Mr Lee Hsien Loong
(“LHL”), the Prime Minister of Si ngapore. CA 164 stems from Suit No 540
of 2006 (“Suit 540”). The plaintiff in th at action, who is the respondent in
CA 164, is Mr Lee Kuan Yew (“LKY”), the Minister Mentor in the Prime
Minister’s Office and a senior Cabinet Minister. The defendants in Suit 539
and Suit 540 (which suits will be referred to collectively as  “the Defamation
Suits”) are the same, namely, Review  Publishing Co Ltd (“RP”), the
publisher of Far Eastern Economic Review  (“FEER”), and Mr Hugo Restall
(“HR”), the editor of FEER as well as the author of the article which is thesubject matter of the Defamation Suits (“the Article”). The Article, titled
“Singapore’s ‘Martyr,’ Chee Soon Juan ”, was published in the July/August
2006 issue (Vol 169 No 6) of FEER (“FEER (Vol 169 No 6)”) at pp 24–27.
3 On 23 September 2008, the Judge granted summary judgment in
favour of LHL and LKY (collectively,  “the Respondents”) on the grounds
that the natural and ordinary meaning of the words in the Article whichwere alleged to be defamatory (“th e Disputed Words”) was the defamatory
meaning pleaded and contended for by the Respondents, and that RP and
HR (collectively, “the Appellants”) ha d no defence to the Defamation Suits.
The background
The Article
4 The Appellants published the Art icle in FEER (Vol 169 No 6) (at
pp 24–27) after an interview with Dr Chee  Soon Juan (“CSJ”), the secretary-
general of the Singapore Democratic Party (“SDP”). We set out below theArticle in its entirety (with paragraph numbers added in square brackets for
ease of reference):paginator.book  Page 62  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 63
[1] Striding into the Chinese restaurant of Singapore’s historic Fullerton
Hotel, Chee Soon Juan hardly looks li ke a dangerous revolutionary. Casually
dressed in a blue shirt with a gold pe n clipped to the pocket, he could pass as
just another mild-mannered, apolitical Singaporean. Smiling, he courteouslyapologizes for being late – even though it is only two minutes after theappointed time.
[2] Nevertheless, according to prosecut ors, this same man is not only a
criminal, but a repeat offender. The o pposition party leader has just come
from a pre-trial conference  at the courthouse, where he faces eight counts of
speaking in public without a permit. He has already served numerous prisonterms for this and other political offens es, including eight days in March for
denying the independence of the judiciary.  He expects to go to jail again later
this year.
[3] Mr. Chee does not seem too perturbed about this, but it drives
Singaporean Prime Minister Lee Hsien Loong up the wall. Asked about his
government’s persecution of the opposition during a trip to New Zealand last
month, Mr. Lee launched into a tirade of abuse against Mr. Chee. ‘He’s a liar,
he’s a cheat, he’s deceitful, he’s conf rontational, it’s a destructive form of
politics designed not to win election s in Singapore but to impress foreign
supporters and make himself out to be a martyr,’ Mr. Lee ranted. ‘He’s
deliberately going against the rules beca use he says, “I’m like Nelson Mandela
and Mahatma Gandhi. I want to be a martyr.”’
[4] Coming at the end of a trip in which the prime minister essentially got
a free ride on human rights from his hosts – New Zealand Prime Minister
Helen Clark didn’t even raise the issue – this outburst showed a lack of self-
control and acumen. Former Prime Mi nister Lee Kuan Yew, the man who
many believe still runs Singapore an d who is the current prime minister’s
father, has said much the same things about Mr. Chee – ‘a political gangster, aliar and a cheat’ – but that was at home, and in the heat of an electioncampaign.
[5] Mr. Chee smiles when it’s suggested  that he must be doing something
right. ‘Every time he says something stupid like that, I think to myself, theworst thing to happen would be to be  ignored. That would mean we’re not
making any headway,’ he agrees.
[6] But one charge made by the government does stick: Mr. Chee is not
terribly concerned about election results.  Which is just as well, because his
Singapore Democratic Party did not do very well in the May 6 polls. It wouldbe foolish, he suggests, for an oppositi on party in Singapor e to pin its hopes
on gaining one, or perhaps two, seats in parliament. He is aiming for a much
bigger goal: bringing down the city-state’s one-party system of government.
His weapon is a campaign of civil disobedience against laws designed tocurtail democratic freedoms.
[7] ‘You don’t vote out a dictatorship,’ he says. ‘And basically that’s what
Singapore is, albeit a very sophisticated one. It’s not possible for us to effect
change just through the ballot box. They’ve got control of everything else
around us.’ Instead what’s needed is a coalition of civil society and politicalpaginator.book  Page 63  Monday, January 4, 2010  12:22 PM

64 SINGAPORE LAW REPORTS [2010] 1 SLR
society coming together and demandin g change – a color revolution for
Singapore.
[8] So far Mr. Chee doesn’t seem to be getting much, if any traction. While
many Singaporeans don’t particularly like the PAP’s [People’s Action Party’s]
arrogant style of government, the ruling party has succeeded in depoliticizing
the population to the extent that anyb ody who presses them to take action to
make a change is regarded with resentment. And in a climate of fear –
Mr. Chee lost his job as a psychology lecturer at the national university soon
after entering opposition politics – a reluctance to get involved is hardly
surprising.
[9] Why is all this oppression necess ary in a peaceful and prosperous
country like Singapore where citizens otherwise enjoy so many freedoms?Mr. Chee has his own theory that the answer lies with strongman Lee Kuan
Yew himself: ‘Why is he still so afraid ? I honestly think that through the years
he has accumulated enough skeletons in his closet that he knows that when heis gone, his son and the generations after hi m will have a price to pay. If we had
parliamentary debates where the opposition could pry and ask questions, I
think he is actually afraid of something like that.’
[10] That raises the question of whether Singapore deserves its reputation for
squeaky-clean government. A scandal involving the country’s biggest charity,
the National Kidney Foundation [(‘NKF’)], erupted in 2004 when it turned outthat its Chief Executive T. T. Durai wa s not only drawing a $357,000 annual
salary, but the charity was paying for his first-class flights, maintenance on his
Mercedes, and gold-plated fixtures  in his private office bathroom .
[11] The scandal was a gift for the opposition, which naturally raised
questions about why the government didn’t do a better job of supervising the
highly secretive NKF, whose patron was the wife of former Prime Minister Goh
C h o k  T o n g  ( s h e  c a l l e d  M r . D u r a i ’ s  s a l a r y  ‘ p e a n u t s ’ ) .  B u t  i t  h a d  w i d e r
implications too. The government contro ls huge pools of public money in the
Central Provident Fund and the Govern ment of Singapore Investment Corp.,
both of which are highly no ntransparent. It also contro ls spending on the public
housing most Singaporeans live in, and openly uses the funds for refurbishing
apartment blocks as a bribe for distri cts that vote for the ruling party.
Singaporeans have no way of knowing whether officials are abusing their trust
as Mr. Durai did .
[12] It gets worse. Mr. Durai’s abuses only came to light because he sued the
Straits Times newspaper for libel over an article detailing some of his perks.
Why was Mr. Durai so confident he could win a libel suit when the allegations
against him were true? Because he had done it before. The NKF won a libel casein 1998 against defendants who alleged it had paid for first-class flights for
Mr. Durai. This time, however, he was up against a major bulwark of the
regime, Singapore Press Holdings; its lawyers uncovered the truth .
[13] Singaporean officials have a remarkable record of success in winning
libel suits against their critics. The question then is, how many other libel suits
have Singapore’s great and good wrongly won, resulting in the cover-up of realmisdeeds? And are libel suits deliberately used as a tool to suppress questioning
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 65
[14] The bottling up of dissent concea ls pressures and prevents conflicts
from being resolved. For instance, extr eme sensitivity over the issue of race
relations means that the persistence of discrimination is a taboo topic. Yetaccording to Mr. Chee it is a problem that  should be debated so that it can be
better resolved. ‘The harder they pre ss now, the stronger will be the reaction
when he’s no longer around,’  he says of Lee Kuan Yew.
[15] The paternalism of the PAP also rank les, especially since foreigners get
more consideration than locals. The World Bank and [the] International
Monetary Fund will hold their annual meeting in Singapore this fall, andhave been trying to convince the authorities to allow the usual
demonstrations to take place. The likely result is that international NGO
groups will be given a designated area to scream and shout. ‘So we have asituation here where locals don’t have  the right to protest in their own
country, while foreigners are able to do that,’ Mr. Chee marvels. Likewise,
Singaporeans can’t organize freely into unions to negotiate wages; instead aNational Wages Council sets salaries with input from the corporate sector,
including foreign chambers of commerce.
[16] All these tensions will erupt wh en strongman Lee Kuan Yew dies.
Mr. Chee notes that the ruling party is so insecure that Singapore’s founder
has been unable to step back from fron t-line politics. The PAP still needs the
f e a r  h e  i n s p i r e s  i n  o r d e r  t o  k e e p  t h e  p o p u l a t i o n  i n  l i n e .  P o w e r  m a y  h a v eofficially passed to his son, Lee Hsie n Loong, but even supporters privately
admit that the new prime minist er doesn’t inspire confidence.
[17] During the election, Prime Minister  Lee made what should have been a
routine attack on multiparty demo cracy: ‘Suppose you had 10, 15, 20
opposition members in parliament. Instead of spending my time thinking
what is the right policy for Singap ore, I’m going to spend all my time
thinking what’s the right way to fix them, to buy my supporters [ sic] votes,
how can I solve this week’s problem and forget about next year’s challenges?’
But of course the ominous phrases ‘buy votes’ and ‘fix them’ stuck out. That
is the kind of mistake, Mr. Chee suggests, Lee Sr. would not make.
[18] ‘He’s got a kind of intelligence that would serve you very well when you
put a problem in front of him,’ he says of the prime minister. ‘But when itcomes to administration or political le adership, when you really need to be
media savvy and motivate people, I think he is very lacking in that area. And
his father senses it as well.’
[19] However, the elder Mr. Lee’s death – he is now 82 – is a necessary but
not sufficient condition for change. Anot her big factor is how civil society is
able to use new technologies to bypass PAP control over information and freespeech. The government has tried to stif le political filmmaking, blogging and
podcasting. Singapore Rebel , a 2004 film about Mr. Chee by independent
artist Martyn See, was banned but is  widely available on the Internet.
[20] Meanwhile, pressure for Singapore to remain competitive in the region
has sparked debate about the government’s dominant role in the economy.
Can a top-down approach promote creativity and in dependent thinking? The
need for transparency and accountability also means that Singapore will have
to change. That is the source of Mr. C hee’s optimism in the face of all hispaginator.book  Page 65  Monday, January 4, 2010  12:22 PM

66 SINGAPORE LAW REPORTS [2010] 1 SLR
setbacks: ‘I realize that Singapore is not at that level yet. But we’ve got to start
somewhere. And I’m prepared to see this  out, in the sense that in the next
five, 10, 15 years, time is on our side. We need to continue to organize andeducate and encourage. And it will come.’
[21] He doesn’t dwell on his personal tribulations, but mentions in passing
selling his self-published books on the street. That is his primary source of
income to feed his family, along with th e occasional grant. As to the charge of
wanting to be a martyr, once he starte d dissenting, he found it impossible to
stop in good conscience. ‘The more yo u got involved, the more you found out
what they’re capable of, it steels you, so you say, “No, I will not back down.” It
makes you more determined.’
[22] Perhaps it’s in his genes. One of Mr. Chee’s daughters is old enough
that she had to be told that her fa ther was going to prison. She stood up
before her class and announced, ‘My papa is in jail, but he didn’t do anything
wrong. People have just  been unfair to him.’
[emphasis added]
5 The Disputed Words (as pleaded by the Respondents) are set out in
paras 9–13 of the Article (see the italic ised part of the quotation in the
preceding paragraph). The question “[h]ow many libel suits have
Singapore’s great and good wrongly wo n, covering up real misdeeds?”,
which is essentially a reiteration of the corresponding question in para 13 of
the Article, is also given especial prominence by being reproduced in
enlarged font in a box printed at the top of the last page of the Article ( ie,
p 27 of FEER (Vol 169 No 6)) so as to catch the eye of the reader.
The proceedings in the High Court 
6 On 22 August 2006, the Responde nts commenced the Defamation
Suits against the Appellants. In respect of LKY, it was pleaded that:
The [Disputed] Words, in context and in their natural and ordinary meaning,
meant and were understood to mean that  [LKY] is unfit for office because he
is corrupt and has set out to sue and suppress those who would question him
as he fears such questions wo uld expose his corruption …
7 In respect of LHL, it was originally  pleaded in his statement of claim
(“SOC”) that:
[T]he [Disputed] Words, in context … and in their natural and ordinary
meaning, meant and were understood to  mean that [LHL] is unfit for office
because:
(a) [LHL], as Prime Minister, has retained [LKY], who is corrupt, as
a member of his Cabinet and Chairman of GIC [the Government of
Singapore Investment Corporation Pte Ltd], and has therebycondoned [LKY’s] corruption; and
(b) [LHL] has set out to sue and suppress those who would question
him because he fears such question s would expose the truth of such
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 67
We shall hereafter refer to the origin al pleaded meaning of the Disputed
Words in relation to LHL (as set out above) as “the Original Meaning”.
8 In addition to relying on the na tural and ordinary meaning of the
Disputed Words, the Resp ondents also relied on their innuendo meaning
(ie, the meaning which the Disputed Words bore by way of innuendo).
9 On 30 August 2007, the Respondents, via Summons No 3833 of 2007
where Suit 540 was concerned and Summons No 3834 of 2007 whereSuit 539 was concerned, applied for su mmary judgment for the following
reliefs (see the Judgment at [2]):
(a) The determination of the natural and ordinary meaning of … the
Disputed Words … contained in the Ar ticle pursuant to O 14 r 12 of the
Rules of Court (Cap 322, R 5, 2006 Rev Ed).
(b) Interlocutory judgment:
(i) with damages to be assessed; and
(ii) an order that the [Appellants] be restrained from the
publication, sale, offer for sale, di stribution or other dissemination by
any means whatsoever of the defa matory allegations, or other
allegations to the same effect, in Singapore,
pursuant to O 14 r 1 of the Rules of Court on the basis that the [Appellants]
have no defence.
(c) Alternatively,
(i) that substantial portions of the Amended Defences [ ie, the first
amended defence filed on 27 Augu st 2007 for Suit 539 and the first
amended defence filed on 27 August 2007 for Suit 540] ought to be
struck out pursuant to O 18 r 19( a), (b), (c) and/or ( d) of the Rules of
Court and/or the inherent jurisdiction of the court and forinterlocutory judgment with damages to be assessed; and
allegations to the same effect, in Singapore.
It should be noted that the Respondents’ applications for summary
judgment (“the Summary Judgment Ap plications”) were based on the
natural and ordinary meaning of the Disputed Words, and not on their
innuendo meaning. It shou ld also be noted that the Respondents sought, as
an alternative to summary judgment, the striking out of substantialportions of the Appellants’ pleadings (specifically, the Appellants’ first
amended defence in Suit 539 and the Ap pellants’ first amended defence in
Suit 540).
10 The Summary Judgment Applications were heard by the Judge on 15
and 16 May 2008. The Appellants’ main arguments before the Judge against
the grant of summary judgment can be summarised as follows:paginator.book  Page 67  Monday, January 4, 2010  12:22 PM

68 SINGAPORE LAW REPORTS [2010] 1 SLR
(a) the Disputed Words did no t refer to the Respondents;
(b) the natural and ordinary meaning of the Disputed Words was
not the defamatory meaning contended for by the Respondents; and
(c) the Appellants had substantive defences, specifically, the
“substantive defences of justificat ion …, fair comment …, qualified
privilege …, public interest pr ivilege … and neutral reportage”
[emphasis in original omitted].
11 At the end of the hearing, the Judge reserved judgment. Subsequently,
on 25 June 2008, the Judge directed the parties to address the court on the
following two issues:
(1) [I]s the court precluded from concluding that the natural and ordinary
meanings of the [D]isputed [W]ords are as defamatory of [LHL] as they are
allegedly defamatory of [LKY]; and
(2) [I]f the court [is not prevented from so concluding and in fact] so
concludes, what order or orders should the court make for [LHL’s]
application in respect of [Suit 539].
It is reasonable to assume that the Judge, in posing these two questions to
the parties, was of the view that, in relation to LHL, the Disputed Words
were capable of bearing the same mean ing as that pleaded by LKY and not
just the Original Meaning, which was the meaning that LHL relied on in his
application for summary judgment.
12 On 18 July 2008, the Appellants and the Respondents filed their
respective written supplemental submi ssions on the above two issues, and,
on 25 July 2008, they filed their respec tive supplemental reply submissions.
13 Meanwhile, on 23 July 2008, LHL applied via Summons No 3239 of
2008 for leave to amend his SOC so as to plead an alternative meaning of
the Disputed Words (“the New Meaning”). Essentially, LHL sought to
include in his SOC the same meaning of the Disputed Words as thatpleaded by LKY, as follows:
because he is corrupt and has set out to sue and suppress those who would
question him as he fears such questions would expose his corruption ,
alternatively, because:
Singapore Investment Corporation Pte Ltd], and has thereby
condoned [LKY’s] corruption; andpaginator.book  Page 68  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 69
corruption or his condonation …
[emphasis added; underlining in original omitted]
The New Meaning is set out in the ital icised part of the above quotation.
14 On 18 August 2008, the Judge granted leave for LHL to amend his
SOC to plead the New Meaning. LHL’s amended SOC was filed on the same
day. The Judge also granted the Appellants leave to make consequential
amendments to their first amended de fence in Suit 539 (if any) by 5.00pm
on 15 September 2008. On 15 Septembe r 2008, the Appellants filed their
second amended defence for Suit 539. As  will be seen later, this second
amended defence did not address or plead justification in respect of theNew Meaning.
15 As mentioned at [3] above, on 23 September 2008, the Judge gave his
decision on the Summary Judgment Applications. He entered summary
judgment in favour of the Respondents on their respective applications, andsubsequently made consequential costs orders on 28 November 2008.
The decision below
Reference to the Respondents and th e meaning of the Disputed Words
16 The Judge, in a carefully-reas oned judgment spanning 106 pages,
made the following findings in rela tion to whether the Disputed Words
referred to the Respondents and whether they were defamatory of theRespondents in their natural and ordinary meaning:
(a) The following phrases in the Disputed Words referred to the
Respondents (see the Judgment  at [36]–[38] and [43]–[45]):
(i) “the government” in para 11 of the Article;(ii) “Singaporean officials” in  para 13 of the Article; and
(iii) “Singapore’s great and good” in that same paragraph ( ie,
para 13 of the Article).
Further, as conceded by the Appellants’ counsel, the expression
“Singaporean officials” in para 13 of  the Article was referable to LKY
(see the Judgment at [31]).
(b) In relation to LKY, the Disputed Words bore the defamatory
meaning pleaded by LKY, viz, that he, like Mr T T Durai (“Durai”),
the former chief executive of the National Kidney Foundation
(“NKF”), was “corrupt … and … [h ad] been using libel actions to
suppress those who would question [ sic] to avoid exposure of his
corruption” (see the Judgment at [88]).paginator.book  Page 69  Monday, January 4, 2010  12:22 PM

70 SINGAPORE LAW REPORTS [2010] 1 SLR
(c) In relation to LHL, the Disputed Words did not bear the
Original Meaning set out at [7] above, which was pleaded as thealternative meaning after LHL am ended his SOC (see the Judgment
at [99]). However, the Disputed Words did bear the New Meaning,
which was the same as the meaning pleaded by LKY (see theJudgment at [100]).
17 The Judge gave the following ma in reasons for finding that the
Disputed Words bore the meanin g asserted by the Respondents:
(a) The ordinary reasonable person would know that the
Respondents had at va rious times successfull y sued for defamation
and would also be aware generall y of the scandal surrounding the
NKF and Durai (“the NKF Saga”) (see the Judgment at [66]). TheAppellants themselves had also admitted that the following matters
were within the general knowledge of the public (see the Judgment
at [64]–[65]):
(i) the NKF Saga;(ii) the protest staged by certain members of the SDP on
11 August 2005 (“the SDP protest”); and
(iii) the various defamation suits commenced by the
Respondents, including Suit No 261 of 2006 and Suit No 262 of2006 (“the SDP proceedings”), which were proceedings by the
Respondents against the SDP and eight of its members in
respect of ( inter alia ) two articles published in or around
February 2006 in the SDP’s newsletter, The New Democrat
Issue 1  (“the New Democrat  articles”).
(The details of the NKF Saga, the SDP protest and the SDP
proceedings are set out at [36]–[37] below.)
(b) The Article containe d more than just a pa ssing reference to the
NKF and Durai (see the Judgment at [80]). It detailed how the NKF
Saga erupted and drew a comparison (at para 11) between “the failure
of the Government to supervise [the] NKF and the fact that theGovernment [controlled] huge pools of money in CPF [the Central
Provident Fund] and GIC [the Gove rnment of Singapore Investment
Corporation Pte Ltd], both of which [were] said to be ‘highly
nontransparent’” (see the Judgment at [84]).
(c) The association which the Article made with the NKF and Durai
was “more than a mere suggestion of extravagance or abuse of poweror some sort of financial impropriety and … [instead] suggest[ed]
corruption on the part of LKY” (see  the Judgment at [85]). This was
“defamation by implication by as sociating institutions which the
Government, ie, LKY (and LHL) [ran], with [the] NKF and Durai”
(at [85]).paginator.book  Page 70  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 71
(d) The suggestion made in paras 12 and 13 of the Article was
similar to that made in the New Democrat  articles, namely (see the
Judgment at [86]):
[A]lthough Durai knew that he had things to hide, he was confident
that he could keep the truth from coming to light by suing those who
alleged corruption or any kind of im propriety on his part. But his plan
backfired since, in the course of hi s libel action against the Singapore
Press Holdings, the truth about Dura i’s misuse of moneys surfaced.
(e) Reading para 13 of the Article in view of the immediately
preceding reference in para 12 to the NKF’s successful libel suit in
1998 and the manner in which the truth about Durai’s and the NKF’s
practices subsequently came to light, the message to the ordinaryreasonable person was that the Respondents, like Durai, had (as
para 13 of the Article put it) “wro ngly won” libel suits and had
deliberately used such suits to cover up real misdeeds, ie, their
corruption. Under such circumstan ces, the ordinary reasonable
person would be left in no doubt that the imputation in the Article
was that the Respondents were unfit for office (see the Judgmentat [87] and [100]).
18 In the Judgment, the Judge also explained why he considered it
appropriate to allow LHL to amend his SOC so as to plead the New
Meaning (see the Judgment at [101]–[114] ). The Judge was of the view that,
unlike the application in Chun Thong Ping v Soh Kok Hong  [2003] 3 SLR(R)
204 (“ Chun Thong Ping ”), a decision relied on by the Appellants to object to
the proposed amendment, LHL’s application for leave to amend his SOC
was filed before any decision wa s made on the Summary Judgment
Applications and the proposed amendment was not to add a new cause of
action, but to attribute an additional meaning ( ie, the New Meaning) to the
Disputed Words (see th e Judgment at [105]–[106]).
19 Although he allowed LHL to amend his SOC to plead the New
Meaning (which, the Appellants co ntended, was a more defamatory
meaning) as an alternative to the Original Meaning, the Judge proceeded to
give his views on what the legal position would have been if no amendmenthad been made to LHL’s SOC. His views were as follows (see the Judgment
at [118]–[144]):
(a) The approach exemplified in Slim v Daily Telegraph Ltd  [1968]
2 QB 157 (“ Slim ”), which was followed by this court in Jeyaretnam
Joshua Benjamin v Lee Kuan Yew  [1992] 1 SLR(R) 791 (“ JJB v LKY
(1992) ”) at [24]–[25] as well as Goh Chok Tong v Jeyaretnam Joshua
Benjamin  [1998] 2 SLR(R) 971 (“ Goh Chok Tong ”) at [43] and [46],
was that the court was entitled to find that the words alleged to bedefamatory (“the offending words”) bore a less defamatory meaning
than the meaning pleaded by the plaintiff, but was not entitled to findpaginator.book  Page 71  Monday, January 4, 2010  12:22 PM

72 SINGAPORE LAW REPORTS [2010] 1 SLR
that those words bore a more  defamatory meaning. In contrast, a
more flexible approach was adopted in Chakravarti v Advertiser
Newspapers Ltd  (1998) 193 CLR 519 (“ Chakravarti ”), where the
Australian High Court held that the court was permitted to find a
meaning which was more defamatory than the pleaded meaning (seethe Judgment at [135]).
(b) In determining the meaning of  the offending words, the court
should not be obliged to find a meaning within the perimeters of thepleadings and should not be preclu ded from finding a different and
more defamatory meaning than that pleaded by the plaintiff (see the
Judgment at [141]).
(c) The consequence of the court’s determination of the meaning of
the offending words was another matter. In this regard (see the
Judgment at [141]):
It may be that the court should award damages on the less defamatory
meaning pleaded by the plaintiff if there has been no prejudice to the
defendant or the court may allow the defendant an opportunity to
address it on the more defamatory meaning before reaching aconclusion.
(d) In the instant case, the New Meaning of the Disputed Words
was not substantially different from the Original Meaning and would,
in the first place, have been cove red by LHL’s original pleading. Thus,
even if LHL had not amended his SOC, summary judgment could still
have been granted to LHL on the basis of the New Meaning (see the
Judgment at [144]).
The defences raised by the Appellants
20 After determining the natural and ordinary meaning of the Disputed
Words, the Judge proceeded to consider the various defences raised by the
Appellants. He eventually found that the Appellants had no viable defence
that would justify granting them le ave to defend. His findings may be
summarised as follows:
(a) In relation to the defence of justification, the Appellants only
sought to justify their own version of the meaning of the Disputed
Words and not the defamatory meaning contended for by the
Respondents, which was also the meaning that the Disputed Words
were found to bear. As such, “the de fence of justification [fell] away”
(see the Judgment at [145]).
(b) The defence of fair comment was not applicable as those
statements in paras 10–13 of the Ar ticle which were alleged by the
Respondents to be comments (“the Relevant Statements”) werestatements of fact instead; and, even if those statements were
comments, they were not comments based on facts (see the Judgmentpaginator.book  Page 72  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 73
at [152]). The fact that some of  the allegations in the Relevant
Statements had been couched as ques tions rather than statements was
irrelevant (see the Judgment at [153]).
(c) The Appellants could not rely on  a derivative qualified privilege
based on what we shall hereafter term the “right-of-reply privilege” of
CSJ, ie, the right which CSJ had to reply to the Respondents’ attacks
on his character. This was because the allegations pertaining to
corruption in the Article exceeded  the scope of CSJ’s right-of-reply
privilege, which formed the basis of  the derivative qualified privilege
claimed by the Appellants (s ee the Judgment at [163]–[164]).
(d) The privilege laid down by the House of Lords in Reynolds v
Times Newspapers Ltd  [2001] 2 AC 127 (“ Reynolds (HL) ”) – ie, “the
Reynolds  privilege” (examined at [186]–[ 235] below) – as well as the
offshoot of this privilege ( viz, the neutral reportag e defence) were not
part of the law of qualified privilege in Singapore. The position in
Singapore on qualified privilege was,  instead, that established by the
Court of Appeal in Aaron Anne Joseph v Cheong Yip Seng  [1996]
1 SLR(R) 258 (“ Aaron ”) (see the Judgment at [219]–[221]).
(e) The Appellants’ argument on  the Disputed Words’ lack of
defamatory impact ( ie, that, even if the Disputed Words were
defamatory, they could not alter the Respondents’ reputation in
Singapore) was erroneous and sh ould be rejected. The law of
defamation was not only concerned wi th the depreciation in the value
of the plaintiff’s reputation, but also involved an “essential element of
vindication” (see Tang Liang Hong v Lee Kuan Yew  [1997] 3 SLR(R)
576 at [111] (cited at [229] of the Judgment)). If the Appellants’
contention were valid (s ee the Judgment at [230]):
[I]t would mean that in Singapore, a person could continue to make
defamatory remarks about a pers on who enjoys the highest of
reputations without being liable under the law of defamation.
Such a legal position, the Judge held, was unsupportable.
21 In respect of the conclusion set out at sub-para (d) of [20] above, it
should be noted that the Judge arrived at that conclusion after reviewing the
relevant cases from different common law jurisdictions. Apart from
holding himself bound by higher authority ( ie, Aaron ) to reject the Reynolds
privilege, the Judge made two observations relating to this defence. First,
this defence was “ influenced  by” [emphasis added] (see the Judgment
at [211]) Art 10 of the European Conven tion for the Protection of Human
Rights and Fundamental Freedoms (“the European Convention”), but “that
influence in itself [did] no t necessarily mean that [ Reynolds (HL) ] should
not apply in Singapore” (see the Judg ment at [211]). Second, the neutral
reportage defence was simply an extension  of the Reynolds  privilege (see the
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74 SINGAPORE LAW REPORTS [2010] 1 SLR
22 The Judge also made some additional observations on other related
issues. He noted that s 12 of the Defamation Act (Cap 75, 1985 Rev Ed)
(“the Defamation Act (1985 Rev Ed)”) “already provide[d] for qualified
privilege for a newspaper [in Singapor e]” (see the Judgment at [222]). He
opined that whether the scope of such privilege should be extended was amatter for Parliament to decide, and the court should be slow to extend that
privilege (see the Judgment at [226]).  Lastly, the Judge added that the
neutral reportage defence applied only  “where the publication [did] not
adopt the views of the maker of the st atement” (see the Judgment at [227]).
In the instant case, the Article conveyed the message that the views
expressed therein, especi ally those at paras 10–13 (which, the Judge held,
constituted the part “where the sting [was] carried” (see the Judgment
at [227])), were those of HR  and not of CSJ (at [227]).
The issues on appeal
23 Before us, the Appellan ts raised eight grounds of appeal as follows:
(a) The Judge erred in taking into account inadmissible extrinsic
evidence in ascertaining the mean ing of the Disputed Words, and in
effect determined the innuendo meaning rather than the natural and
ordinary meaning of those words.
(b) The Disputed Words did no t allege that LKY was corrupt.
(c) The Disputed Words did not allege that LHL was corrupt.
(d) The Judge erred in allowing LHL to amend his SOC after the
hearing of the Summary Judgment Applications was over and the
parties had made their final subm issions on those applications.
(e) The Judge was wrong in deciding that the defence of
justification did not apply in the pr esent case, given especially that,
after accepting the Respondents’ me aning of the Disputed Words, he
failed to afford the Appellants  an opportunity to amend their
pleadings so as to justify the mean ing found by the court. (It should be
noted that the Appellants made this particular argument not only in
relation to Suit 539 (where LHL amended his SOC to plead the New
Meaning), but also in relation to Suit 540 (where LKY did not makeany changes to the pleaded meaning of the Disputed Words).)
(f) The Judge mischaracterised the Relevant Statements as
statements of facts when they were actually comments, and thus erred
in holding that the defence of fair comment was not sustainable.
(g) The Judge was wrong in deciding that the defence of derivative
qualified privilege based on CSJ’s right-of-reply privilege did not
apply, and mistakenly thought that  the allegations made against thepaginator.book  Page 74  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 75
Respondents in the Article were mo re serious than the Respondents’
allegations against CSJ.
(h) The Judge erred in refusing to acknowledge that the Reynolds
privilege and its offshoot, the neutra l reportage defence, were part of
the law of qualified privilege in Singapore and was wrong to exclude
those defences. If, however, the Judge was right in holding that theReynolds  privilege and the neutral reportage defence did not form
part of Singapore’s common law, the Appellants could still invoke
what may be called the “tradition al qualified privilege defence” in
view of the special facts of this case.
24 The Respondents, on their part, co ntended that the Judge was entirely
correct in law in his findings and reas oning. In addition, in respect of the
meaning of the Disputed Words in re lation to him, LHL stated that he
“reserve[d] the right” to contend that the Original Meaning was “the true
meaning of the [Disputed] Words” in the event that this court eitherdisagreed with the Judge’s finding on  the meaning of the Disputed Words
or ruled that he (LHL) ought not to have been granted leave to amend his
SOC.
25 We propose to deal with the Appellants’ grounds of appeal (and the
respective arguments of the parties in  relation thereto) in the order in
which they have been set out at [23] above. As we are of the view that the
second and third grounds of appeal ( ie, grounds (b) and (c)) are connected
with the first ground of appeal ( ie, ground (a)), and as these three grounds
are all essentially concerned with the issue of what the natural and ordinary
meaning of the Disputed Words is, we shall consider them together.
Grounds (a), (b) and (c): The me aning of the Disputed Words
Overview
26 The Appellants’ argument vis-à-vis  the meaning of the Disputed
Words is that those words neither al leged nor meant that either LKY or
LHL was corrupt, contrary to what th e Respondents alleged and what the
Judge found. Under the law of defamation, the offending words may be
defamatory (broadly speaking) in two senses, namely (see Doris Chia &
Rueben Mathiavaranam, Evans on Defamation in Singapore and Malaysia
(LexisNexis, 3rd Ed, 2008) (“ Evans on Defamation ”) at p 12 as well as Goh
Chok Tong  ([19] supra ) at [44]):
(a) in their natural and ordinary meaning, which includes any
meaning capable of being inferred from the offending words standing
on their own in addition to their literal meaning; and
(b) in their innuendo meaning, ie, in some other meaning (apart
from the natural and ordinary meaning) which, although not
defamatory from the viewpoint of the ordinary reas onable person, ispaginator.book  Page 75  Monday, January 4, 2010  12:22 PM

76 SINGAPORE LAW REPORTS [2010] 1 SLR
nonetheless defamatory from the viewpoint of people with knowledge
of the special meaning of the offending words or the relevant extrinsicfacts.
As mentioned earlier (at [9] above), the Respondents relied on only the
natural and ordinary meaning of th e Disputed Words in the Summary
Judgment Applications.
The applicable principles
27 The test for determining the nat ural and ordinary meaning of the
offending words in a defamation acti on is well settled in England and,
likewise, Singapore. Essentially, the court decides what meaning the wordswould convey to an ordinary reasonab le person, not unduly suspicious or
avid for scandal, using his general knowledge and common sense. It is
irrelevant what meaning was intended  by the maker or publisher of the
statement ( ie, the defendant) or what mean ing was actually understood by
the plaintiff. In Microsoft Corp v SM Summit Holdings Ltd  [1999] 3 SLR(R)
465 (“ Microsoft Corp ”), this court summarised the test as follows (at [53]):
The principles applicable in determining the natural and ordinary meaning
of the words complained of in a defamation action are well-established. The
court decides what meaning the words would have conveyed to an ordinary,
reasonable person using his general knowledge and common sense : Jeyaretnam
Joshua Benjamin v Goh Chok Tong   [1983–1984] SLR(R) 745 and [ JJB v LKY
(1992)  ([19] supra )]. The test is an objective one: it is the natural and ordinary
meaning as understood by an ordinary, reasonable person, not unduly
suspicious or avid for scandal . The meaning intended by the maker of the
defamatory statement is irrelevant. Similarly, the sense in which the words
were actually understood by the party alleged to have been defamed is also
irrelevant. Nor is extrinsic evidence admissible in construing the words . The
meaning must be gathered from the wo rds themselves and in the context of
the entire passage in which they are set out. The court is not confined to the
literal or strict meaning of the words, but takes into account what the ordinary,
reasonable person may reason ably infer from the words . The ordinary,
reasonable person reads betwee n the lines. … [emphasis added]
(In this regard, referenc e may also be made to Bank of China v Asiaweek Ltd
[1991] 1 SLR(R) 230 at [16]; JJB v LKY (1992)  ([19] supra ) at [19]; Gatley on
Libel and Slander  (Patrick Milmo & W V H Rogers eds) (Sweet & Maxwell,
11th Ed, 2008) (“ Gatley ”) at para 3.16; and Evans on Defamation  at
pp 12–13.)
28 It is important to reiterate that  the natural and ordinary meaning of
the offending words is not confined to their literal  or strict  meaning, but
includes inferences or implications that the ordinary reasonable person
may draw from those words in the light of his general knowledge, common
sense and experience (see Microsoft Corp  at [53]; see also Gatley  at
paras 3.16–3.17 and Evans on Defamation  at p 14). In this regard, it is
instructive to refer to Lord Reid’s comments in Rubber Improvement Ltd vpaginator.book  Page 76  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 77
Daily Telegraph Ltd  [1964] AC 234 (“ Rubber Improvement Ltd ”) at 258
(which were endorsed  by this court in Microsoft Corp  at [54] as well as in
Goh Chok Tong  at [20]), as follows:
What the ordinary man would infer without special knowledge has generally
been called the natural and ordinary meaning of the words. But that
expression is rather misleading in that it conceals the fact that there are two
elements in it .  S o m e t i m e s  i t  i s  n o t  n e c e s s a r y  t o  g o  b e y o n d  t h e  w o r d s
themselves, as where the plaintiff has been called a thief or a murderer. But
more often the sting is not so much in the words themselves as in what the
ordinary man will infer from them, and th at is also regarded as part of their
natural and ordinary meaning . [emphasis added]
29 Inferences or implications which the ordinary reasonable person may
draw based on his general knowledge,  common sense and experience are
entirely permissible. It must be appreciated that such inferences or
implications are not the same as inferences or implications based on
extrinsic evidence , which evidence is not admissible as a matter of law in the
construction of the natural and ordinary meaning of the offending words
(see Microsoft Corp  at [53]). The following passage by Lord Morris of
Borth-y-Gest sets out the distinction between these two types ofinfererences or implications clearly (see Gordon Berkeley Jones v Clement
John Skelton  [1963] 1 WLR 1362 (“ Jones ”) at 1370–1371):
The ordinary and natural meaning of words may be either the literal meaning
or it may be an implied or inferred or an indirect meaning: any meaning that
does not require the support of extr insic facts passing beyond general
knowledge but is a meaning which is capa ble of being detected in the language
used can be a part of the ordinary and natural meaning of words . … The
ordinary and natural meaning may th erefore include any implication or
inference which a reasonable reader guided not by any special but only bygeneral knowledge and not fettered by an y strict legal rules of construction
would draw from the wo rds. [emphasis added]
30 The characteristics of the ordinary reasonable person are also
important. As pertinently noted by the Judge at [49] of the Judgment:
[I]t is this hypothetical character’s reading and understanding of the
defamatory words which a ssume legal significance  and translate into a
definitive legal ruling of the stat us of allegedly defamatory words.
This court (in Microsoft Corp  at [54] and Goh Chok Tong  at [25]) adopted
the characterisation of the hypothetica l ordinary reasonable person set out
by the English Court of Appe al (“the English CA”) in Skuse v Granada
Television Ltd  [1996] EMLR 278 (“ Skuse ”) at 285, which was as follows:
The hypothetical reasonable reader … is not naive but he is not unduly
suspicious . He can read between the lines. He can read in an implication more
readily than a lawyer, and may indulge in a certain amount of loose thinking .
But he must be treated as being a man who is not avid for scandal andpaginator.book  Page 77  Monday, January 4, 2010  12:22 PM

78 SINGAPORE LAW REPORTS [2010] 1 SLR
someone who does not, and should not,  select one bad meaning where other
non-defamatory meanings are available. [emphasis added]
31 The ordinary reasonable person has also been described in many
other colourful ways. For instance, he  has been said to be a person:
(a) who is “fair-minded” (see Charleston v News Group Newspapers
Ltd [1995] 2 AC 65 at 71), “law-abiding” (see Lau Chee Kuan v Chow
Soong Seong  [1955] MLJ 21 at 22) and a “r ight-thinking [member] of
society generally” (see Workers’ Party v Tay Boon Too  [1974–1976]
SLR(R) 204 at [52]);
(b) who “does not live in an ivory tower and … is not inhibited by a
knowledge of the rules of [documentary] construction” (see Rubber
Improvement Ltd  at 258); and
(c) who can be assumed to possess “general knowledge and
experience of worldly affairs” (see Rubber Improvement Ltd  at 258).
Ultimately, all these descriptions seek to emphasise the point that the
ordinary reasonable person is very much an average rational layperson,
neither brilliant nor foolhardy, and not idiosyncratic in his behaviour or
disposition. As stated by Lord Reid in Rubber Improvement Ltd  at 259:
Ordinary men and women have different temperaments and outlooks. Some
are unusually suspicious and some are unusually naïve. One must try to
envisage people between these two extremes  and see what is the most
damaging meaning they would put on the words in question. [emphasis
added]
The Appellants’ arguments on the meaning of the Disputed Words
32 The Appellants’ main arguments on the meaning of the Disputed
Words may be summarised as follows:
(a) In attributing to the ordina ry reasonable person general
knowledge of certain events (“the Relevant Events”) such as the NKF
Saga, the SDP protest and the various defamation suits brought by theRespondents, including the SDP proceedings, the Judge took into
account irrelevant extrinsic evid ence, which was not admissible in
determining the natural and ordinary meaning of the DisputedWords. Instead of imbuing the or dinary reasonable person with
“general  knowledge ” [emphasis added in bold italics], which would
not include knowledge of the Relevant Events, the Judge effectively
imbued this hypothetical person with “ specific  knowledge” [emphasis
added; underlining in original omitted] of these matters.
(b) Even if all the Relevant Events were within the general
knowledge of the ordinary reasonab le person, bearing in mind that
this hypothetical person was not avid for scandal, he would not havepaginator.book  Page 78  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 79
come to the conclusion that the Disputed Words meant that the
Respondents were corrupt.
(c) It was wrong of the Judge to take into account “masses of
extrinsic evidence” in the form of newspaper clippings as well as thedecisions of V K Rajah J in Chee Siok Chin v Minister for Home Affairs
[2006] 1 SLR(R) 582 (“ Chee Siok Chin ”), Belinda Ang Saw Ean J in Lee
Hsien Loong v Singapore Democratic Party  [2007] 1 SLR(R) 675 (“ Lee
Hsien Loong (HC) ”) and this court in Lee Hsien Loong v Singapore
Democratic Party  [2008] 1 SLR(R) 757 (“ Lee Hsien Loong (CA) ”) in
determining the natural and ordinary meaning of the DisputedWords.
(d) The Disputed Words (espec ially the words “Singaporean
officials” and “Singapore’s great and good” in para 13 of the Article)
did not refer to the Respondents and the Judge had relied on extrinsic
evidence to find that they referred to the Respondents.
(e) The Judge was wrong to rely on the Malaysian case of Hasnul
bin Abdul Hadi v Bulat bin Mohamed  [1978] 1 MLJ 75 (“ Hasnul ”) to
find that the NKF and/or Durai had become symbolic of corruption
and that any person mentioned in connection with either of them wassimilarly tainted, given especially that Hasnul  was a case decided
based on the innuendo meaning of the offending words. Althoughdefamation by implication was po ssible, such implication must be
derived from the offending words themselves and not from“extraneous” (as the Appellants put it) or extrinsic materials.
Our decision on the Appellants’ arguments and the meaning of the 
Disputed Words
33 The Appellants’ first argument vis-à-vis  the meaning of the Disputed
Words (as set out at sub-para (a) of [32] above) relates to the generalknowledge of the ordinary reasonab le person, while the rest of the
arguments pertain essentially to th e approach taken by the Judge in
determining the natural and ordinary meaning of the Disputed Words.Given the established test in defamation law for determining the naturaland ordinary meaning of the offending words (see [27] above), the state ofthe ordinary reasonable person’s gene ral knowledge plays a pivotal role in
this respect. As such, we shall first address this issue.
The state of the ordinary reason able person’s general knowledge 
34 The state of the general knowledge of the ordinary reasonable person
will naturally be affected and shaped by what is common knowledge in the
public domain and by significant (p ublic) events which would reasonably
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80 SINGAPORE LAW REPORTS [2010] 1 SLR
35 The Judge found, on the evidence, that there was no dispute between
the parties that the ordinary reasonable person would be aware of thefollowing matters (see the Judgment at [59]):
(a) LHL is the Prime Minister of Singapore.
(b) LKY is the Minister Mentor in th e Prime Minister’s Office, a Cabinet
Minister and the first Prime Minister of  Singapore. He is also the current
chairman of the GIC [the Government of Singapore Investment Corporation
Pte Ltd], a founding member of the PAP [People’s Action Party] and its first
secretary-general.
(c) [RP] is the publisher of FEER. [HR] is the editor of FEER and the
author of the Article.
(d) In the July/August 2006 Issue of … FEER [ ie, FEER (Vol 169 No 6)],
the [Appellants] published,  and/or caused to be published, the Article in
respect of an interview with CSJ. CSJ is the secretary-general of the SingaporeDemocratic Party (‘SDP’).
36 It was the Respondents’ case both before the Judge and in the present
appeals that the Relevant  Events, all of which occurred before the Article
was published, were matters in the public domain. The Relevant Events
consisted mainly of the following:
(a) the various defamation suits commenced over the years by the
Respondents, in which they succe ssfully obtained damages and/or
apologies from the persons whom they sued;
(b) the NKF Saga, which commenced with the trial on 11 July 2005
of what we shall hereafter term “the NKF libel suit”, ie, the libel action
brought by the NKF and Durai agai nst Singapore Press Holdings Ltd
(that suit culminated in Durai withdrawing the action, subsequentlybeing arrested by the Corrupt Practices Investigation Bureau
(“CPIB”) and, following investigati ons carried out by the police and
the Inland Revenue Authority of Singapore on the NKF’s formerboard of directors as well as an independent audit conducted by
KPMG, charged under the Preven tion of Corruption Act (Cap 241,
1993 Rev Ed) (“the curre nt PCA”) (see the Judgment at [60]));
(c) the SDP protest, which took  place on 11 August 2005 outside
CPF Building and which involved  several members of the SDP,
including CSJ and his sister, Chee Siok Chin (“CSC”) (see theJudgment at [62]); and
(d) the SDP proceedings (s ee further [37] below).
37 As alluded to at sub-para (a) of [17] above, the SDP proceedings
consisted of Suit No 261 of 2006 and Suit No 262 of 2006, which were the
Respondents’ defamation actions agai nst the SDP and eight of its members
(including CSJ and CSC) in April 2006 in respect of the New Democrat
articles (see the Judgment at [21] and [63]). Six of the defendants suedpaginator.book  Page 80  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 81
admitted liability for libel, agreed to  pay damages and costs, and published
apologies in The Straits Times  and Lianhe Zaobao  on 3 May 2006. CSJ and
CSC were the only two defendants who filed defences and contested the
SDP proceedings. The offending words in the New Democrat  articles were
eventually adjudged by Belinda Ang J in Lee Hsien Loong (HC)  ([32] supra )
to be defamatory of the Respondents (specifically, the learned judge found
that the words bore, inter alia , the meaning that the Respondents were
corrupt). CSJ’s subsequent application fo r an extension of time to file an
appeal against Belinda Ang J’s decisi on was dismissed by this court in Lee
Hsien Loong (CA)  ([32] supra ). It should be noted that, in the present
actions ( ie, the Defamation Suits), the Respondents contended that the
Article adopted a style which was very  similar (in terms of both structure
and substance) to that adopte d in certain passages of the New Democrat
articles (see the relevant portions of the New Democrat  articles as
reproduced in the Judgment at [21]).
38 The Judge accepted that all the Relevant Events were in the public
domain and that the ordinary reasonab le person “would have been aware
generally  [of them]” [emphasis added] (see the Judgment at [66]). In
contrast, the Appellants’ position was that these events would not have been
within the ordinary reasonable pers on’s general knowle dge, and, being
instead in the nature of extrinsic ev idence, were inadmissible to prove the
state of the ordinary reasonable pers on’s general knowledge. At para 16 of
their written case for the present appeals, the Appellants argued:
The [J]udge erected references to the general knowledge and common sense
of the reasonable reader into a verita ble library of information about current
events, court cases, activities, police  activity, demonstration and political
invective. A mass of information ab out the [Respondents’] defamation
actions, [the] NKF, [CSJ’s] latest exploits and the mutual vituperationbetween him and the [Respondents] ar e all attributed to the reasonable
reader – information he could not possibly hold in his … head.
39 The issue which we have to decide apropos the state of the ordinary
reasonable person’s general knowledge is simply this: wa s it wrong in law
for the Judge to regard knowledge of the Relevant Events as part and parcel
of the general knowledge of th e ordinary reasonable person?
40 We are of the view that the Judge was not wrong in taking the above
view ( viz, that the Relevant Events formed part of the ordinary reasonable
person’s general knowledge). All these events (save for some of the
defamation suits mentioned in sub- para (a) of [36] above) happened
relatively shortly ( ie, within about one year) before the publication of the
Article. The NKF Saga was in the news, both offline and online, for months.
The public apologies issued  by six of the defendants in the SDP proceedings
were also much publicised, having regard to the fact that those six
defendants were members of the SDP. Their apologies were published in
The Straits Times  and Lianhe Zaobao  on 3 May 2006, less than threepaginator.book  Page 81  Monday, January 4, 2010  12:22 PM

82 SINGAPORE LAW REPORTS [2010] 1 SLR
months before the Article was publishe d. Both of these newspapers have a
very large readership in Singapore.
41 Indeed, the Relevant Events were all extensively reported and featured
in the local press, as can be seen fr om the numerous media reports adduced
by the Respondents. In fact, by the ti me the Article was published, most, if
not all, of the Relevant Events had gained notoriety among the general
public in Singapore because of the ex tensive coverage of and the intensive
discussions about these events in the media (and on the Internet). The mass
circulation of the daily newspapers  published in Singapore in four
languages entailed that the Relevant Events became common knowledgeamong the people living here. Specifical ly, in respect of the NKF Saga, there
was huge public outrage after details of the benefits enjoyed by the NKF’s
former management, especially Durai, were exposed at the trial of the NKFlibel suit and reported in the local pr ess. The NKF Saga was a very traumatic
event for the hundreds, if not thousand s, of ordinary Singaporeans who had
made cash contributions to the NKF for its charitable work. They felt
betrayed by Durai, and were outraged when the truth surfaced that they had
been deceived into believing that th e NKF was spending the bulk of its
funds for the benefit of needy kidney patients. It was thus unsurprising thatRajah J noted in Chee Siok Chin  ([32] supra ) that (at [121]):
… The governance and finances of the NKF were in July and early August
2005 caught in a swirl of negative an d adverse publicity.  Information and
material that entered the public domain  as a consequence of litigation
involving its former chief executive officer [ ie, Durai] … beca me the source
of widespread and grave public disquiet . … [emphasis added]
42 Here, we should remind ourselve s that the finding or opinion of
Rajah J in Chee Siok Chin  on this issue of fact ( ie, whether the NKF Saga was
a matter of general knowledge) is not binding on the Judge, and the Judge
did not make his finding based on the views expressed by Rajah J in Chee
Siok Chin  but, rather, based on all the materials placed before him. Given
these materials, it would indeed be surre al if we were to conclude that the
ordinary reasonable person had no general knowledge of all of the Relevant
Events, especially the NKF Saga. In our view, this point is unarguable.
43 In this regard, the Respondents’ counsel reminded us that the
Appellants, in opposing the Summ ary Judgment Applications, had
proceeded on the mistaken basis that the Respondents’ case for summaryjudgment was based on the innuendo  meaning of the Disputed Words
when it was actually the natural an d ordinary meaning of those words
which the Respondents relied on. In so doing, the Respondents’ counsel
submitted, the Appellants had in fact unconditionally admitted  that the
Relevant Events were indeed in the public domain and/or constituted
public knowledge. This submission is  borne out by the written submissions
dated 8 May 2008 which the Appellants  filed for the Summary Judgment
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 83
7. The [Respondents’] affidavits go into great detail … about defamation
actions that the [Respondents] have won in the past . … The actions cannot be
relevant to the innuendo meanings [of the Disputed Words], because they are
public knowledge  …
8. The affidavits describe the ‘NKF Saga’ … and an SDP protest … and a
libel action brought against the SDP members  [ie, the SDP proceedings] …
The [Respondents] have refused to su pply further and better particulars of
the Statements of Claim paras 16–31 or to explain how the ‘NKF Saga’, the
[SDP] protest or the SDP [proceedings ] can be relevant to their pleaded
meaning or innuendo meaning … As matters known to the general public ,
they cannot support an ‘innuendo’ meaning …
[emphasis added; emphasis in original omitted]
44 At para 19 of the same written submissions ( ie, the Appellants’
written submissions dated 8 May 2008) , the Appellants further made the
following comments:
[T]he [Respondents] claim that the in nuendo meaning … is exactly the same
as the ordinary and natural meaning … It is fundamental that a trueinnuendo only exists ‘where the extended meaning arises from facts passing
beyond general knowledge’ … Indeed the facts pleaded are so well known that
they constitute facts of which judicial no tice may be taken, since they are court
judgments such as the [Respondents’] libel victories, Mr Durai’s libel case and
criminal case, the SDP protest … and the independent auditor’s public inquiry
report into [the] NKF  … [emphasis added; emphasis in original omitted]
45 Counsel for the Respondents also reminded us that, when the
Appellants realised that they should not have made the admissions outlined
at [43]–[44] above, they applied unsuccessfully to withdraw thoseadmissions on the ground that they had made a mistake in opposing a case
which the Respondents had not put forward (see the Judgment
at [64]–[65]). Before us, counsel for th e Appellants merely reiterated the
arguments which he had made to the Judge as to why the Relevant Events
were extrinsic evidence and should no t have been treated as being in the
public domain, without reference to the Appellants’ own admissions in this
regard. We should add that it would not have mattered one bit even if the
Appellants had not made those admissions. In our view, the evidence that,
by the time the Article was published, the Relevant Events had entered thepublic domain and were within th e general knowledge of the ordinary
reasonable person is so overwhelming that the Appellants’ attempt to argue
to the contrary is merely forensic jo usting for the sake of disputing every
conceivable point.
46 For all of the above reasons, we are of the view that the Judge was fully
entitled and correct to treat knowledge of the Relevant Events as part of the
general knowledge of the ordinary re asonable person. Contrary to the
Appellants’ contention, these events were definitely not extrinsic evidence.
We turn now to examine, first, whether  an ordinary reasonable person withpaginator.book  Page 83  Monday, January 4, 2010  12:22 PM

84 SINGAPORE LAW REPORTS [2010] 1 SLR
general knowledge of these events would infer that the Disputed Words
were referable to the Respondents an d, second, what meaning those words
would convey to him.
Were the Disputed Words referable to the Respondents in the mind of the 
ordinary reasonable person?
47 One of the Appellants’ main arguments before us was that the Judge
was wrong to find that the expressions “Singaporean officials” and“Singapore’s great and good” in para 13 of the Article were naturally, by
themselves, referable to the Respondents, and that the Judge had made this
finding only with the aid of extrinsic evidence.
48 It is trite law that, to succeed in an action for defamation, the plaintiff
must prove not only that the defendant published the offending words, but
that those words were published of the plaintiff  (see Price Waterhouse
Intrust Ltd v Wee Choo Keong  [1994] 2 SLR(R) 1070 (“ Price Waterhouse ”)
at [17]; Knupffer v London Express Newspaper Ltd  [1944] AC 116
(“Knupffer ”) at 118–119; Lee Hsien Loong (HC)  ([32] supra ) at [18] and
[30]; Gatley  ([27] supra ) at para 7.1; and Evans on Defamation  ([26] supra )
at p 45).
49 The test is an objective  one, and it is simply whether the ordinary
reasonable person who, at the mate rial time, was aware of the relevant
circumstances or special facts (if an y) would reasonably understand the
plaintiff to be referred to by the offending words (see Price Waterhouse
at [18] and [24] as well as Knupffer  at 119). In A Balakrishnan v Nirumalan
KP i l l a y  [1999] 2 SLR(R) 462 (“ A Balakrishnan ”), this court held that,
having regard to the article which contained the offending words and the
publicity given to the plai ntiffs as members of an organising committee that
had organised an event called “Tamil Language Week” (which was the
subject matter of that article), a reas onable person who was acquainted with
the plaintiffs, on reading the article, would come to the conclusion that theoffending words referred to  the plaintiffs even though the plaintiffs were
not expressly identified in the articl e. It follows from the decision in
AB a l a k r i s h n a n  that the plaintiff need not be expressly referred to by name
in the offending words; it is also immaterial whether or not the defendant
intended to refer to the plaintiff (see Price Waterhouse  at [18] and Knupffer
at 119; see also generally Gatley  at paras 7.2 and 7.5 as well as Evans on
Defamation  at pp 45–47).
(1) Whether the Disputed Words were referable to LKY
50 In determining whether the offending words are referable to the
plaintiff, the context in which the words are used is relevant as it is in that
context that the question of reference to the plaintiff is to be determined(see A Balakrishnan  at [22]). In the present case, the Article was ex facie
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 85
martyr in Singapore’s political landscape. But, pervading the Disputed
Words as well as other parts of the Art icle were references to LKY by name
(see, eg, the phrase “the answer lies with strongman Lee Kuan Yew himself”
at para 9 of the Article as well as the references to “Lee Sr.” and “elder
Mr. [Lee]” at para 17 and para 19 respectively of the Article).
51 The Appellants themselves had also accepted on two occasions that
the Disputed Words referred to LKY. Fi rst, in their reply submissions dated
14 May 2008 filed for the Summary Judg ment Applications , the Appellants
stated the following at paras 76–77:
76 The [Respondents] seem to think th at the [Appellants] dispute that the
alleged defamatory words of the Arti cle refer to the Minister Mentor [ ie,
LKY].
77 The [Appellants] do not dispute this. The words obviously and expressly
refer to the Minister Mentor, whose power and influence in Singapore is known
to all readers and is a matter of public interest in the region . …
52 Second, at the hearing of the Summary Judgment Applications on
16 May 2008 before the Judge, counsel fo r the Appellants conceded that the
words “Singaporean officials” in pa ra 13 of the Article  referred to LKY:
In the light of our pleadings, I concede  that [the] ordinary man can infer that
‘Singaporean officials’ refers to  LKY but not LHL. [emphasis added]
53 As for the word “government” in paras 10 and 11 of the Article, this
word ordinarily means the body of pe rsons who govern the State. It could
refer to either the Cabinet collectively or the entire apparatus of a state’s
system of government. The fact that the offending words refer to a class or
body of persons  (as opposed to a specific individual ) is not, ipso facto , a bar
to a successful claim in defamation so long as the ordinary reasonable
person can conclude that “the statement about the body [of persons] is
capable of being interpreted as referring to the individual” ( per Rajah J in
Chee Siok Chin  ([32] supra ) at [68]; see also Knupffer  ([48] supra ) at 119
and Lee Hsien Loong (HC)  ([32] supra ) at [35]). Of course, the larger the
class of persons covered by the offending words, the less likely it is that the
ordinary reasonable person woul d reach such a conclusion (see Gatley  ([27]
supra ) at para 7.9 and Evans on Defamation  ([26] supra ) at pp 55–56).
54 In the present case, it would not be difficult for the ordinary
reasonable person to associate the word “government” in ( inter alia )
para 10 of the Article, especially in the context of the phrase “squeaky-clean
government” in that same paragraph, wi th LKY as he is almost universally
acknowledged as the architect of Si ngapore’s corruption-free government.
As the Appellants themselves stated at para 77 of their reply submissions
dated 14 May 2008, LKY’s “ power and influence in Singapore is known to all
readers and is a matter of pu blic interest in the region ” [emphasis added].
We therefore fully agree with the Judge’s reasons (at [35]–[36] of thepaginator.book  Page 85  Monday, January 4, 2010  12:22 PM

86 SINGAPORE LAW REPORTS [2010] 1 SLR
Judgment) for holding that the term “government” in the Disputed Words
was referable to LKY, bearing in mind  especially that para 9 of the Article
also referred to LKY specifically as “ strongman Lee Kuan Yew ” [emphasis
added]. As the Judge stated in the Judgment:
35 Coming back to the Article, it must be remembered that para 4 thereof
states that many believe that LKY still runs Singapore and para 9 thereof
describes him as ‘strongman Lee Kuan Yew ’. This description is repeated in
para 16. Accordingly, even though LKY is not the prime minister, it seems to
me that the Article is saying that he is the person or at least one of the persons
… holding the reigns of power in govern ment. LKY is also the chairman of the
GIC [Government of Singapore In vestment Corporation Pte Ltd] .
36 So, seen in context, when reference is made in para 11 of the Article to
the Government’s control of huge pool s of public money in the CPF [Central
Provident Fund] and [the] GIC and its control of spending on public housing, I
am of the view that LKY is being referred to . As an aside, I note that although
para 77 of the DRS [ ie, the Appellants’ reply su bmissions dated 14 May 2008]
says that the ordinary reader would not identify LKY as ‘the government’,
HR’s own affidavit refers at para 13  to ‘the [Respondents] and their
government’  and para 38 of the [Appellant s’] Written Su bmissions [ ie, the
Appellants’ written submissions da ted 8 May 2008] … refers to the
[Respondents] as ‘the two most powerful men in Singapore’.
(In this regard, referenc e may also be made to Sykes v Fraser  (1974)
39 DLR (3d) 321 and Christchurch Press Co Ltd v McGaveston  [1986]
1 NZLR 610, where claims for defa mation succeeded in respect of
statements that made an attack on a class and specifically referred to the
plaintiffs concerned at the same time .)
55 As for the words “Singapore’s great and good” in para 13 of the
Article (which, as mentioned at [5] ab ove, were reproduced prominently in
enlarged font in a box at the top of the last page of the Article), those words
were used in the context of the assertion in that same paragraph that
“Singaporean officials [had] a remarkab le record of success in winning libel
suits against their critics”. The ordina ry reasonable person would know of
the many defamation actions commenced by LKY against a large number of
politicians and newspapers, which ac tions have been given wide media
coverage in Singapore. In our view, there can be no doubt that the words
“Singapore’s great and good” in para 13 of the Article also (and perhaps
mockingly) referred to LKY as one of these persons.
(2) Whether the Disputed Words were referable to LHL
56 Unlike LKY, who was referred to by name in the Disputed Words,
LHL was not referred to by name in the Disputed Words, although he wasreferred to as “[LKY’s] son” at para 9 of  the Article (which forms part of the
Disputed Words). LHL was also expressl y referred to in other parts of thepaginator.book  Page 86  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 87
Article falling outside the Disputed Words either by his full name (see, eg,
paras 3 and 16 of the Article) or as “Prime Minister Lee” (see, eg, para 17 of
the Article).
57 As mentioned earlier, the law of defamation does not require that the
offending words must expre ssly refer to the plaintiff by name; it is sufficient
so long as the ordinary reasonable pe rson knows or has reason to believe
that the plaintiff is being referred to  b y  t h o s e  w o r d s .  L o r dR e i d  g a v e  t h e
following example in Morgan v Odhams Press Ltd  [1971] 1 WLR 1239
at 1243:
Suppose a statement [is made] that X is illegitimate, and an action [is
brought] by X’s mother. It  seems to me obvious … that if the statement is
untrue, the law could not deny an action to the mother.
58 In Lord Reid’s example, a refere nce to a child was accepted as a
sufficient reference to the child’s parent where the parent was the plaintiff.
In our view, there is no reason why the converse ( ie, a reference to a parent)
cannot be a sufficient reference to the child of that parent where it is thechild who is the plaintiff. In the inst ant case, the ordinary reasonable person
would know that LKY has only one so n serving in the Government, namely,
LHL, the Prime Minister of Singapore. Further, para 16 of the Articleexpressly used the word “son” when referring to LHL by his full name (see
the passage “[a]ll these tensions will erupt when strongman Lee Kuan Yew
dies. … Power may have officially passed to his son, Lee Hsien Loong …”
[emphasis added]). In the context of the Article, the reference to “son” in
the phrase “his son … will have a price to pay” at para 9 of the Article
(which forms part of the Disputed Words) must necessarily mean LHL.
59 As for the term “government” in the Disputed Words, it must
similarly be referable to LHL in the context of the Article. It is common
knowledge that LHL, as the Prime Minister of Singapore, is the head of the
Government in Singapore (see Lee Hsien Loong (HC)  ([32] supra ), where
Belinda Ang J, in holding that the New Democrat  articles were referable to
LHL, reasoned (at [39]) that “[t]he or dinary reader would be aware that …
the ‘one individual’ must be the person at the top, namely, the secretary-
general of the [People’s Action Party]  and the Prime Minister of Singapore
– ie LHL”). Furthermore, the first expl icit reference to LHL in the Article
was at para 3, where he was referred to  as “Singaporean Prime Minister Lee
Hsien Loong”. This was followed by th e reference in the next sentence to
“his government’s  persecution of the opposition” [emphasis added]. In our
view, there can be no doubt that the term “government” in the Disputed
Words likewise referred to LHL.
60 Turning to the phrase “Singaporean officials” in para 13 of the Article,
the Appellants, although conceding in the court below that this expression
referred to LKY , denied that it referred to LHL  (see the Judgment at [31]).
In our view, the Appellants’ position is untenable. If it is accepted that thepaginator.book  Page 87  Monday, January 4, 2010  12:22 PM

88 SINGAPORE LAW REPORTS [2010] 1 SLR
word “officials” in the phrase “Singapo rean officials” referred to LKY, that
word must, as a matter of common sense, refer to LHL as well since he is thePrime Minister of Singapore and the head of the Government. As noted by
the Judge, the word “officials” was used “in the plural, not the singular” (see
the Judgment at [44]). LHL was the first government official referred to inthe Article (see para 3 thereof), even before any reference to LKY was made,
and he (LHL) was mentione d specifically in his capacity as the Prime
Minister, the head of the Government. Furthermore, the word “officials” inpara 13 of the Article was also used in the context of libel suits commenced
by “Singaporean officials” . This is significant as it is common knowledge in
Singapore that LHL, like LKY, has su ed many politicians and the press for
defamation in Singapore.
61 Lastly, with regard to the words “Singapore’s great and good” in
para 13 of the Article, the reasons why these words were referable to LKY
would equally apply in relation to LH L. For these reasons, we fully agree
with the Judge’s finding that the Disputed Words referred to LHL as well.
The meaning of the Disputed Words in relation to the Respondents
(1) The meaning of the Disputed  Words in relation to LKY
62 Turning now to the mean ing of the Disputed Word s, we consider first
their meaning in relation to LKY. The pleaded meaning of the Disputed
Words apropos LKY is that he is unfi t for office because he is corrupt and
has set out to sue and suppress those who question him for fear that such
questions would expose his corruption (see [6] above).
63 In their defences, the Appellants pleaded in relation to both of the
Respondents that the natural and ordi nary meaning of the Disputed Words
was instead as follows (and this wa s the meaning which they sought to
justify):
The words [ ie, the Disputed Words] are substant ially true in their natural and
ordinary meaning, viz that over the course of … half [a] century as
Singapore’s most powerful poli tical leader [LKY] has taken anti-democratic
positions and has made so me mistakes and misjudgments that will return to
haunt his successors, especially since much of his governance has been non-
transparent (e.g. NKF, CPF [the Central Provident Fund] and GIC [the
Government of Singapore Inve stment Corporat ion Pte Ltd])  and he has
responded to criticism by treating political opponents with contempt,
persecuting them  and suing them under unaltered and antiquated English
libel laws that favour  political plaintiffs. This behaviour gives reason to
inquire/alternatively reason to suspect, as to whether there may be other NKF-type scandals lurking below the surface in Singapore and in any event will
affect his legacy . When [LKY] dies, his son and future politicians will have
had no mentoring in how to work within a genuine multi-party democracycommitted to free speech, and will for that  reason have difficulty when their
government faces an effective op position party. [emphasis added]paginator.book  Page 88  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 89
64 The Respondents disagreed that the Disputed Words conveyed to the
ordinary reasonable person the meanin g alleged by the Appellants as set out
in the preceding paragraph. The Respondents’ case was essentially that theDisputed Words meant that  the Respondents were “corrupt”. This, it was
argued, was the cumulative effect of all the unfounded allegations made
against the Respondents in the Disputed  Words, starting with para 9 of the
Article, which quoted CSJ as saying that LKY had “ accumulated enough
skeletons in his closet  that he knows that when he is gone, his son and the
generations after him will have a price to pay ” [emphasis added]. The
Article proceeded to question in para 10 “whether Singapore deserve[d] itsreputation for squeaky-clean  government” [emphasis added] and then
seamlessly launched (in the same paragraph) into the “ scandal ” [emphasis
added] involving the NKF and Durai ( ie, the NKF Saga).
65 According to para 10 of the Article, this scandal:
… erupted in 2004 when it turned out that … Durai was no t only drawing a
$357,000 annual salary, but the charity wa s paying for his first-class flights,
maintenance on his Mercedes, and gold-p lated fixtures in his private office
bathroom.
The Article described (at para 11) this scandal as a “gift for the opposition”
and suggested (in the same paragraph) that the scandal “had wider
implications  too” [emphasis added]. Para graph 11 of the Article then
immediately made reference to the Government’s control of huge pools of
public money in the Central Provident Fund (“CPF”) and the Government
of Singapore Investment Corporation Pte Ltd (“GIC”), both of which weredescribed as “highly nontransparent”. The same paragraph went on to refer
to the Government’s control over spen ding on public housing in Singapore
and described the funds for refurb ishing apartment blocks as “a bribe  for
districts that vote for the ruling party” [emphasis added]. Paragraph 11
ended with the statement that “Sin gaporeans have no way of knowing
whether officials are abusing  their trust as Mr. Durai did” [emphasis
added]. Not satisfied with having made  all these statements, HR went on to
assert at para 12 of the Article that “[i]t gets worse ” [emphasis added], and
drew further parallels in paras 12–13 between the successful libel suit
brought by the NKF in 1998 (before the NKF and Durai met their nemesis
in the NKF libel suit (as defined at [36] above)) and the defamation suits
commenced by “Singaporean official s” (see para 13 of the Article) and
“Singapore’s great and good” (see para 13), who had “a remarkable record of
success  in winning libel suits against th eir critics” [emphasis added] (see
para 13). Paragraph 13 then concluded with two questions: “how many
other libel suits have Singapore’s great and good wrongly won , resulting in
the cover-up  of real misdeeds ?” [emphasis added] and “are libel suits
deliberately used as a tool to suppress  questioning voices?” [emphasis
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90 SINGAPORE LAW REPORTS [2010] 1 SLR
66 As is apparent, although the Article was ex facie  about CSJ’s role as an
opposition politician in Singapore, th e fulcrum of the Article was really the
NKF Saga, which HR used as a basis of comparison with the way in which
(according to the Disputed Words) Si ngapore had been governed by the
Respondents. The striking feature of the Disputed Words was the deliberate
association  and/or comparison  which they made between, on the one hand,
the highly secretive way in which Durai ran the NKF and, on the other
hand, the way in which (according to para 11 of the Article) “[t]hegovernment control[led] huge pools of public money in the [CPF] and the
[GIC], both of which [were] highly nontransparent”. This, the Article
suggested, meant that Singaporeans had no way of knowing whethergovernment officials were abusing thei r trust just as Durai had abused the
public’s trust in the NKF. A furthe r association and/or comparison was
made between the NKF’s successful libe l suit in 1998 and the successful libel
suits brought by “Singaporean officials” ( per para 13 of the Article) and
“Singapore’s great and good” (see para 13). Defamation by implication
(through association and/or comparis on) is a well-known principle in the
law of defamation (see further [91]  below). This is illustrated by Chee Siok
Chin  ([32] supra ) and Lee Hsien Loong (HC)  ([32] supra ), both of which
were not only reported by the local me dia, but also publicised in regular
postings on the SDP’s website.
67 In Chee Siok Chin , three of the participants in the SDP protest
(including CSC) commenced proceedings for declarations that the Ministryfor Home Affairs and the Commissioner of Police had acted in an unlawful
or unconstitutional manner in ordering them to disperse during the SDP
protest as well as in seizing the placards which they were holding and the T-shirts which they were wearing. Whet her or not the declarations sought
ought to be granted turned on, inter alia , whether the printed words on
those T-shirts and placards were prima facie  insulting or abusive for the
purposes of ss 13A and/or 13B of the Miscellaneous Offences (Public Order
and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the Miscellaneous Offences
Act”). In relation to this point, Rajah J observed (at [121] of Chee Siok
Chin ):
An objective view of the printed wo rds on the T-shirts and the placards
would leave no doubt that the protestors were neither affably nor gently
raising queries; rather they were pa tently attempting to undermine the
integrity of not just the CPF Board but also the GIC and the HDB [Housingand Development Board] by alleging impropriety against the persons
responsible for the finances  of these bodies (“the institutions”) … This was a
conscious and calculated e ffort to disparage and cast aspersions on these
institutions and more crucially on how they are being managed. I cannot but
take judicial notice of the fact that any attempt to link the institutions to the
NKF at that point of time, 11 August 2005 and pending further public
clarification, would be tantamount to  an insinuation of mismanagement and
financial impropriety. The governance and finances of the NKF were in July
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 91
Information and material that entered the public domain as a consequence of
litigation involving its former chief executive officer … became the source of
widespread and grave public disquiet. A toxic brew of inexplicable accountingpractices, corporate unaccountability, lack of financial disclosure and
questionable management practices created an atmosphere cogently suggesting
financial impropriety . On 20 July 2005, the Minister of Health, Mr Khaw
Boon Wan, announced in Parliament that the new NKF Board had appointed
an accounting firm, KPMG ,  t o  c o m m i s s i o n  a  d e t a i l e d  r e v i e w  o f  t h e  N K F ’ s
financial controls; see s 59(1)( d) of the Evidence Act (Cap 97, 1997 Rev Ed).
To associate or link the institutions (a nd in particular the CPF [Board]) with
the NKF, as it was then perceived, is to tarnish them with financial impropriety
and sully their standing and integrity.  S u c h  a n  a s s o c i a t i o n  d o e s  n o t  m e r e l y
allege impropriety. It was a patent atte mpt to scandalise the institutions and
their management by association . … [emphasis added]
68 In the later case of Lee Hsien Loong (HC) , which concerned the SDP
proceedings, Belinda Ang J held that  the term “NKF” had become a byword
for corruption and financial impropriety, and concluded that the New
Democrat  articles, in associating the NKF and/or Durai with the
Respondents (who were the plaintif fs in the SDP proceedings), were
defamatory of the Respon dents. At [58]–[61] of Lee Hsien Loong (HC) , she
said:
58 In the present actions, at the time the [d]isputed [w]ords were
published, the NKF had, in the defendants’ [ ie, CSC’s and CSJ’s] own words,
become :
… bywords for corruption, financial impropriety and the knowing abuse
of unmeritorious defamation suits …
Mention the words ‘NKF’ and ‘Durai’ in the same article, and the mind of the
ordinary, reasonable reader, with the ordinary man’s general knowledge, willnaturally turn to the financial abuses  and improprieties in the NKF during
Durai’s tenure as its chief executive officer . …
59 The point made by the English Ar ticle [which was one of the two
articles complained of in the SDP proc eedings] is that: (a) there were truly
financial abuses in the NKF, including instances of ‘NKF officials … paying
themselves obscenely high salaries an d bonuses, and flying first class on
business trips’; and (b) in order to supp ress allegations of such abuses, which
allegations he knew to be true, Durai brought defamation actions against
critics of the NKF. The English Article then invites the reader to associate the
NKF’s  modus operandi with that of the PAP [People’s Action Party] by posing
the pointed question : ‘Doesn’t this remind you of the PAP?’  Another pointed
question, which linked the PAP to the NKF, this time in the context of thePAP ‘monopolizing power and making sure that no one has the means to
challenge that hold on power’, was this : ‘[A]re we not witnessing the NKF but
on a larger and national scale?’ …
60 The Chinese Article  [which was the other arti cle complained of in the
SDP proceedings] was likewise replete with numerous comparisons between
the NKF and the PAP . …paginator.book  Page 91  Monday, January 4, 2010  12:22 PM

92 SINGAPORE LAW REPORTS [2010] 1 SLR
61 In my view, the sting in the [d]isp uted [w]ords lies in the way they
highlight the commonality between the PAP-led Government and the NKF,
namely, lack of transparency and lack of accountability . By this, the [d]isputed
[w]ords imply that the PAP and the political elite are not transparent about
the finances of the Govern ment and government institutions such as the GIC
because they want to conceal their financial improprieties, just as Duraierected a shroud of secrecy around the NKF in order to hide its
management’s pecuniary abuses. …
69 As mentioned earlier (see sub-para (c) of [32] above), the Appellants
argued that the Judge should not have considered Chee Siok Chin  and Lee
Hsien Loong (HC)  (as well as Lee Hsien Loong (CA)  ([32] supra ), where this
court refused to grant CSJ leave to file  an appeal out of time against the
decision made in Lee Hsien Loong (HC) ) in determining the natural and
ordinary meaning of the Disputed Wo rds. The Appellants’ complaint was
that the Judge had relied on the findings in these cases even though theyconcerned different facts and subject matters. Counsel for the Appellants
also pointed out that, in Chee Siok Chin , Rajah J had only referred to the
NKF as being associated with financial impropriety and/or lack of integrity,
but not corruption. Thus, the Appellants’ counsel argued, it was wrong of
Belinda Ang J in Lee Hsien Loong (HC)  to rely on Rajah J’s observations in
Chee Siok Chin  to find that the NKF and/or Durai had become “ bywords for
corruption ” [emphasis added in bold italics] (see Lee Hsien Loong (HC)
at [58]). It followed that, in the cour t below, the Judge was wrong to rely on
Rajah J’s observations in Chee Siok Chin  and Belinda Ang J’s finding in Lee
Hsien Loong (HC)  to support his own finding that the Disputed Words
meant that the Respondents were corrupt.
70 The Appellants’ counsel further ar gued that, although Durai had been
charged with ( inter alia ) an offence under s 6( c) of the current PCA, the
essence of the offence charged was not corruption but deception of his
principal ( ie, the NKF), and that, in any case , Durai had not been convicted
of the charge yet when the Article was published. The Appellants’ counsel
submitted that there wa s a distinction between corruption and financial
impropriety, and the former did not include the latter. However, when
asked by this court what he underst ood to be the meaning of “corruption”,
the Appellants’ counsel merely answered that whatever meaning wasascribed to “corruption” could not poss ibly include financial impropriety.
71 In response, counsel for the Respondents clarified that the
Respondents had cited Chee Siok Chin  and Lee Hsien Loong (HC)  merely to
make the point that the local courts had previously found that the words
“NKF” and/or “Durai” had come to  mean something in Singapore, ie,
corruption. He submitted that the Judg e had reached his conclusion on the
natural and ordinary meaning of the Disputed Words only after a careful
consideration of the actual words used and the inferences which thepaginator.book  Page 92  Monday, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 93
ordinary reasonable person would draw , having regard especially to that
person’s knowledge of the events relati ng to the NKF Saga that were in the
public domain. In the Respondents’ vi ew, the observations and findings in
Chee Siok Chin  and Lee Hsien Loong (HC)  m e r e l y  s h o w e d  w h a t  w a s
generally known to the ordinary reasonable man in the street. The Judgedid not have to rely on those two cases to reach his own conclusion on what
the natural and ordinary meaning of the Disputed Words was. The
Respondents’ counsel also argued that the Appellants, in claiming aderivative qualified privilege based on CSJ’s right-of-reply privilege – which
right, the Appellants contended, enti tled CSJ to make the comments stated
in the Article even if those comments amounted to imputations ofcorruption as he had been accuse d by the Respondents on previous
occasions of being “a liar, … a traitor to Singapore, … ‘ cancerous ’[,] ‘lacking
in integrity ’ [and] ‘ dishonest ’” [emphasis in original] – had thereby accepted
that corruption could encompass a ho st of misdeeds including financial
impropriety.
72 The word “corrupt” has a broad me aning both in ordinary usage and
also in law. The following meanings , among others, of “corrupt” (as an
adjective) are given in Encarta World English Dictionary  (Kathy Rooney
chief ed) (Bloomsbury, 1999) at p 426:
1.… immoral or dishonest, especially as shown by the exploitation of a
position of power or trust for personal gain 2.… extremely immoral or
depraved …
The Shorter Oxford English Dictionary on Historical Principles  (C T Onions
ed) (Clarendon Press, 3rd Ed Reprint,  1991) gives the following meanings,
among others (at vol 1, p 431):
3.Debased in character; depraved; perverted … 4.Influenced by bribery or
the like …
And, in Anandan Krishnan, Words, Phrases & Maxims Legally & Judicially
Defined  (LexisNexis, 2008), the definition given is as follows (at vol 4C(II),
p 487):
… unlawful; dishonest, without integrit y; guilty of dishonesty, involving
bribery …
73 As can be seen from these defini tions, the word “corrupt” covers a
wide range of wrongdoings, including unlawful, immoral or dishonest acts,
abuse of office for personal gain and financial impropriety. In the present
case, the key question is simply how the ordinary reasonable person, with
the general knowledge that he has of the Relevant Events, would read andunderstand the Disputed Words, given especially the association which the
Disputed Words made between the Respondents on the one hand and the
NKF and/or Durai on the other. What  would such a person understand to
be the meaning or sense of the Disputed Words in the context in which they
appeared, especially when the rhetorical question “[h]ow many libel suitspaginator.book  Page 93  Monday, January 4, 2010  12:22 PM

94 SINGAPORE LAW REPORTS [2010] 1 SLR
have Singapore’s great and good wrongly won, covering up real misdeeds?”
(which was essentially a reiteration of the corresponding question inpara 13 of the Article) was given especi al prominence by being reproduced
in enlarged font in a box at the top of the last page of the Article? What was
the message intended to be conveyed by those words if, contrary to theRespondents’ submissions, they did not mean that the Respondents had
exploited the law of defamation to  cover up their “real misdeeds” ( per
para 13 of the Article)?
74 We consider first the Appellants’ argument that the Disputed Words
did not allege corruption in so far as  Durai was not charged with corruption
even though he was charged under s 6( c) of the current PCA. The
Appellants contended that a charge under s 6( c) of the current PCA was in
law only a charge of cheating (a nd not one of corruption) because
L P Thean J had described a charge under s 6( c) of the Prevention of
Corruption Act (Cap 241, 1985 Rev Ed) (“the 1985 PCA”), which is the
predecessor of s 6( c) of the current PCA, as such in Knight Glenn
Jeyasingam v PP  [1992] 1 SLR(R) 523 (“ Knight v PP ”). In that case, Thean J
observed (at [20]) that s 6( c) of the 1985 PCA “[did] not imply any
corruption at all”, but was “[i]n effect  … an offence of cheating” (at [20]).
75 We do not think that this argume nt by the Appellants has any merit
for a number of reasons. First, in Knight v PP , the conduct of the accused in
using a false invoice to obtain a larg er government vehicle loan than the
loan which he could actually have obta ined was redolent of cheating rather
than corruption. But, this does not ne cessarily mean that all charges under
s6 (c) of the current PCA do not have an  element of corruption in them. It
is not inconceivable that some other kind of dishonest act (different fromthe conduct of the accused in Knight v PP ) falling within s 6( c) of the
current PCA may be regarded as corrupt conduct.
76 Second, the main reason why Thean J said that s 6( c) of the 1985 PCA
did not imply corruption was that, whil e the word “corruptly” was used in
ss 6( a) and 6( b) of that Act, it was not used in s 6( c) thereof (see Knight v PP
at [20]). Under the current PCA, the wo rd “corruptly” likewise appears only
in ss 6( a) and 6( b), but not s 6( c). It must not, however, be overlooked that
dishonesty is an integral element of co rruption, and, in this regard, it is
pertinent that Thean J went on to say in Knight v PP  that the offence under
s6 (c) of the 1985 PCA “[did] imply an element of dishonesty” (at [20]).
This, in our view, is obviously correct  as the conduct delineated in that
subsection would not otherwise have been proscribed. We also note that
Thean J added that a charge under s 6( c) of the 1985 PCA was more serious
than a charge under s 417 of the Penal Code (Cap 224, 1985 Rev Ed) of
cheating (at [20]).
77 Third, if a person is reported to  have been charged under the current
PCA, it is certainly more likely for th e ordinary reasonable  person to infer
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 95
than to infer that the charge in question “does not imply any corruption at
all” ( per Thean J in Knight v PP  at [20]).
78 Finally, we note that the heading of s 6 of the current PCA indicates
that the provision is targeted at co rruption. Section 6 of this Act reads:
Punishment for corrupt  transactions with agents .
6.I f —
…
(c) any person knowingly gives to an agent, or if an agent knowingly
uses with intent to deceive his prin cipal, any receipt, account or other
document in respect of which the principal is interested, and which
contains any statement which is false or erroneous or defective in anymaterial particular, and which to his knowledge is intended to mislead
the principal,
he shall be guilty of an offence and sha ll be liable on convic tion to a fine not
exceeding $100,000 or to impr isonment for a term not exceeding 5 years or to
both.
79 In our view, the Appellants’ argument that a charge under s 6( c) of the
current PCA is not a corruption charge  is an academic contention that is
beyond the ken of the ordinary reasonable person, and therefore has little
practical relevance. For the purposes of the present appeals specifically, the
question is what the ordinary reason able person would have understood a
charge under s 6( c) of the current PCA to connot e, especially when it was
widely reported that Durai was bein g investigated by the CPIB and was
facing two charges of corruption (see [ 80] below). It seems to us that the
ordinary reasonable person woul d associate this information with
corruption rather than with cheating. In any case, the question of whether
the offence under s 6( c) of the current PCA is on e of corruption or one of
cheating or fraud is, in our view, less important than the question of how
the ordinary reasonable  person would perceive or understand the
association made by the Article between, on the one hand, LKY (and LHL)and/or the other government agencies mentioned therein and, on the other
hand, the NKF and/or Durai. As we  mentioned earlier, the ordinary
reasonable person is one who “can read  in an implication more readily than
a lawyer” (see Skuse  ([30] supra ) at 285), and he is “guided not by any
special  [for instance, the knowledge of law that a lawyer possesses] but only
by general  knowledge” [emphasis added] (see Jones  ([29] supra ) at 1371).
80 In support of their contention that the ordinary reasonable person
with the relevant general knowledg e would read and understand the
association of LKY (and LHL) with the NKF and/or Durai in the Disputed
Words as suggesting corruption on the part of LKY (and LHL), the
Respondents cited numerous media reports published at the time of thepaginator.book  Page 95  Monday, January 4, 2010  12:22 PM

96 SINGAPORE LAW REPORTS [2010] 1 SLR
NKF Saga which stated that Durai wa s being investigated for corruption.
We set out the signif icant reports below:
(a) In an article titled “Unusual transactions prompt CAD probe on
NKF: minister” published in the 20–21 August 2005 issue of The
Business Times , it was reported, inter alia , that:
Police were called in after ‘unusu al transactions’ surfaced at the
National Kidney Foundation (NKF), Health Minister Khaw Boon Wan
said yesterday.
…The Corrupt Practices Investigation Bureau is also believed to be
involved in the investigation. …
(b) In an article titled “Durai arrested, will face charges filed by
CPIB” published on the front page of The Straits Times  on 18 April
2006, it was reported, inter alia , that:
The former chief of th e National Kidney Foundation, Mr T. T. Durai,
was arrested yester day and is expected to be  produced today in court.
Sources said he will be facing char ges filed by the Corrupt Practices
Investigation Bureau on matters that arose during his leadership of
Singapore’s largest charity.
(c) In an article titled “Ex-NKF chief Durai charged with graft”
published in The Business Times  on 19 April 2006, it was reported,
inter alia , that:
Former National Kidney Foundation chief T T Durai was charged in
court yesterday with two counts unde r the anti-graft Act of submitting
false payment claims with ‘the intent to deceive’ the Foundation when
he was its CEO.
…The Corrupt Practices Investigatio n Bureau (CPIB), which brought the
charges against Durai, said that it received information in September
2005 – two months after Durai and the entire board quit, following the
nationwide scandal – that the staff of the NKF ‘could be involved in
corrupt dealings’. Its investigations led to the charges against Durai
and two other NKF officers.
(d) In an article titled “Former NKF chief faces two corruption
charges” posted on Channel News Asia’s website on 18 April 2006, it
was reported, inter alia , that:
The former chief executive of th e National Kidney Foundation,
T T Durai, has been charged with intent to mislead and deceive the
organisation.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 97
The charges come five months after a report by auditing firm KPMG,
which revealed questionable practices by the old NKF.
…
Durai, Ragini [Vijayalingam, the former assistant manager of the
NKF’s purchasing department] and Chua [ ie, Matilda Chua, a former
member of the NKF’s board of directors] were investigated by theCorrupt Practices Investigation Bureau.
81 The Appellants argued that all these media reports, just like the cases
of (inter alia ) Chee Siok Chin  ([32] supra ) and Lee Hsien Loong (HC)  ([32]
supra ), were extrinsic evidence that could not be relied on to determine the
natural and ordinary meaning of the Di sputed Words. We agree that these
media reports cannot dictate  the meaning to be given to the Disputed
Words, but we see no reason why they cannot be taken into account as arelevant factor in determining how th e ordinary reasonable person would
view the NKF Saga and, consequently , the association of the Respondents
with the NKF and/or Durai in the Di sputed Words. These reports could
perhaps be said to be extrinsic evid ence that Durai was associated with
corruption at the time they were  published. But, by the time the Article  was
published, the association of the NK F and/or Durai with corruption would
have entered the public consciousne ss, given the intense publicity and
extensive coverage given to the NKF Saga in the local media. In other
words, by the time the Article was published, the association of the NKFand/or Durai with corruption was no longer extrinsic evidence.
82 In our view, it is significant that the NKF Saga:
(a) centred on, inter alia , questionable practices and transactions by
the NKF’s former board of direct ors, which was headed by Durai;
(b) involved various investigati ons by the police and other
authorities (especially the CPIB), which eventually led to criminal
charges being pressed against Durai and other former directors of the
NKF; and
(c) was given extensive coverage in the local media, especially via
numerous reports which stated that  Durai was being investigated and
would be charged with graft.
Given these factors, the ordinary reason able person would in all probability
associate the NKF and/or Durai with grave financial impropriety, abuse of
power and/or dishonest practices. These are serious misdeeds which fall
readily within the ambit of corruption, and they were indeed described as
corruption by the press in its reports. It  seems to us highly artificial to say
that such misdeeds, especially fina ncial impropriety on the part of a
government minister, would mean so mething less than corruption to the
ordinary reasonable person , especially when we have regard to the broad
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98 SINGAPORE LAW REPORTS [2010] 1 SLR
surprised that Rajah J in Chee Siok Chin  and Belinda Ang J in Lee Hsien
Loong (HC)  found that the NKF and/or Durai had, in the mind of the
ordinary reasonable person, come to symbolise financial impropriety
and/or corruption.
83 We agree with counsel for the Respondents that Chee Siok Chin  and
Lee Hsien Loong (HC)  are useful in showing that the NKF and/or Durai
have come to mean something in Sing apore, and we also agree with the
conclusions reached by the court in thes e two cases. It seems to us that this
was all that the Judge took notice of when he referred to these two cases (see
the Judgment at [75]–[78]). Contrary to what the Appellants contended, it
is clear to us that the Judge arrived at his conclusion on the natural and
ordinary meaning of the Disputed Wo rds after a careful consideration of
the words themselves, and did not blindly rely on the decisions made inthese two cases. We return now to the Disputed Words themselves.
84 As mentioned above, para 10 of th e Article raised the NKF Saga. We
agree with the Judge that the use of words such as “scandal” and “highlysecretive” in paras 10 and 11 of the Art icle only served to reinforce the
ordinary reasonable pers on’s perception that the NKF Saga involved some
serious (and clandestine) wrongdoing by Durai. It is noteworthy that the
NKF Saga was mentioned in  the Article (at para 10) immediately after  the
suggestion (in para 9) that LKY had “skeletons in his closet” (which
expression is ordinarily used to indicate that the person concerned has doneshameful acts which he wishes to hide). Further, the suggestion that LKY
had “skeletons in his closet” ( per para 9 of the Article) was immediately
followed by the statement “[t]hat raises the question of whether Singaporedeserves its reputation for squeaky-clean government ” [emphasis added] in
para 10 of the Article. Read together, these statements would, from the
viewpoint of the ordinary reason able person, mean that LKY had
something to hide, which, if exposed, would call into question Singapore’s
reputation for “squeaky -clean government” ( per para 10 of the Article). In
our view, these words in paras 9–11 of  the Article, when juxtaposed and
read together, were a clear imputa tion that LKY was corrupt and that
Singapore did not deserve its reputation  for having (as para 10 of the Article
put it) a “squeaky-clean government”.
85 Further, again using the words of the Article itself, the imputation
“[got] worse” ( per para 12 of the Article) as the Article also stated (in
para 11) that the NKF Saga had “wider implications too” for the
Government, which controlled “huge po ols of public money” (see para 11)
in different government institutions that were “highly nontransparent” (see
para 11). This suggested that, just as Durai was able to misuse the NKF’s
funds because of the highly secretive way in which he ran the NKF,
government officials in Singapore were able to misuse public funds in view
of the way in which the government le d by the People’s Action Party was
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 99
[were] abusing their trust as Mr. Durai did” (see para 11). Quite clearly, the
effect of all these statements, which directly associated the NKF and/orDurai (as well as Durai’s misuse of funds and the secretive nature in which
the NKF was run) with (a) Singapo re’s government  and government
officials, (b) our government official s’ control of huge pools of public
money in different government instit utions and (c) the non-transparency
of such institutions, was to suggest to  the ordinary reasonable person that
the Respondents were guilty of the sa me kind of wrongdoing that the NKF
and/or Durai were guilty of in the ey es of the general public. This, in our
view, would be the inference that the ordinary reasonable person would
draw from the Disputed Words in the light of the general knowledge whichhe possesses.
86 We mentioned earlier that the Disputed Words ended at para 13 of
the Article with two questions posed by HR, which came immediately after
the statement in the same paragraph that “Singaporean officials [had] aremarkable record of success in winn ing libel suits against their critics”.
These two questions are as follows (see para 13 of the Article):
The question then is, how many other libel suits have Si ngapore’s great and
good wrongly won, resulting in the cove r-up of real misdeeds? And are libel
suits deliberately used as a tool  to suppress questioning voices?
87 The above words, in so far as they were expressed in the form of
questions, could possibly be regarded as a form of inquiry. Indeed, this wasthe argument of the Appellants, who submitted that:
This behaviour [ ie, LKY’s conduct in initiating li bel suits against his political
opponents] gives reason to inquire/alternatively reason to suspect  … whether
there may be other NKF-type scandals lurking below the su rface in Singapore
and in any event will affect his [ ie, LKY’s] legacy. [emphasis added]
However, in our view, taking into a ccount the context in which the above
questions were asked, and given that they were raised at the conclusion of a
very pointed passage detailing the wrongdoings of Durai and the NKF as
well as associating Durai and/or the NKF with the Respondents, these
purported questions went far beyo nd the purpose of merely posing
inquiries. As counsel for the Resp ondents submitted, and we agree with
him on this point, it is not difficult to see that the two questions at the end
of para 13 of the Article were in effect rhetorical questions which
themselves contained or suggested the answers. Bearing in mind especiallythat the ordinary reasonable person would know of the many defamation
suits commenced by the Respondents in the past, and given that para 10 of
the Article expressly questioned whether Singapore deserved its reputationfor having a “squeaky-clean government”, the inference that the ordinary
reasonable person would draw from the words used in these two questions
would be that LKY (and LHL) had like wise made use of defamation suits to
cover up his misdeeds ( ie, his corruption) and had “wrongly won” ( per
para 13 of the Article) such suits, ju st as Durai had done in the past.paginator.book  Page 99  Monday, January 4, 2010  12:22 PM

100 SINGAPORE LAW REPORTS [2010] 1 SLR
88 It is also significant that the question “[h]ow many libel suits have
which is essentially a reiteration of the first of the two questions in para 13of the Article, was given especial prominence in the Article (see [5] above).The prominence given to headings in or any part of a publication is a
relevant factor to be taken into account in determining the meaning of the
offending words (see, eg, English and Scottish Co -operative Properties
Mortgage and Investment So ciety Ltd v Odhams Press Ltd  [1940] 1 KB 440
at 460 and John Fairfax Publications Pty Ltd v Rivkin  (2003) 201 ALR 77
at [26]). In our view, the prominence giv en to the first of the two questions
in para 13 of the Article (by reproducing that question in enlarged font in a
box at the top of the last page of the Article) reinforced the inference thatthe ordinary reasonable person would draw from not only that question,
but also the second question in para 13.
89 In this connection, it is pertinen t to note that (as mentioned at [37]
above), in response to the SDP proceedings, six of the SDP members who
were sued issued public apologies to  the Respondents in respect of the
comments made in the New Democrat  articles. The New Democrat  articles
had similarly made comparisons between, on the one hand, the NKF and,on the other hand, the Government and/or the Respondents. In the publicapologies, which we re published in The Straits Times  and Lianhe Zaobao ,
the relevant defendants in the SDP proceedings expressly admitted that the
allegations in the New Democrat  articles bore the meaning that the
Respondents were unfit for office beca use they were corrup t and that there
was corruption in other government in stitutions such as the Housing and
Development Board, the GIC and the CPF Board. These public apologies
were published less than three months before the publication of the Article,
and the ordinary reasonable pers on who had read them would have
remembered them while reading the Article.
90 A final point which we need to consider here is the Appellants’
argument (see [57] of the Judgment) that it was wrong of the Judge (as well
as Belinda Ang J in Lee Hsien Loong (HC)  ([32] supra ) at [57]) to rely on the
Malaysian case of Hasnul  ([32] supra ) to find that the word “Durai” had
become symbolic of corrup tion, tainting likewise any person mentioned in
connection with that word, given especially that Hasnul  was a case which
concerned the innuendo meaning of the offending words. Taking this point
first, we are of the view that the court in Hasnul  d i d  n o t  a p p e a r  t o  b e
concerned with the innuendo meaning of the offending words. As noted by
the Judge, the Appellants’ counsel, despite arguing that Hasnul  involved the
innuendo meaning of the offending wo rds, also acknowledged that the
court in that case did not say whether it  was ruling in favour of the plaintiff
based on the natural and ordinary mean ing or the innuendo meaning of the
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 101
91 In our view, Hasnul  does not stand for any new or distinct approach
of its own. As mentioned earlier, th e natural and ordinary meaning of the
offending words includes  any implication or infe rence that the ordinary
reasonable person would draw based on  his general knowledge. An obvious
example of this form of defamation ( ie, defamation by implication) would
be where a defamatory association and/or comparison is made (for
instance, where the plaintiff is comp ared with odious or disreputable
persons, whether historic al or fictional (see Gatley  ([27] supra ) at
para 3.18)). Such a comparison was made in Hasnul , where the plaintiff was
compared to “Abu Jahal”, an expression commonly used and understood
by Muslims all over the world to de scribe a person who is an enemy of
Islam, an infidel, a troublemaker and a liar. Further, the learned authors of
Gatley , in the section of the book that discusses the interpretation of the
natural and ordinary meaning of offending words, cite Hasnul  as an
example of defamation by implication through a defamatory comparison
(see Gatley  at para 3.18, n 198). The Ju dge likewise referred to Hasnul  for
this same purpose (see [54]–[56] of the Judgment). In our view, given the
Article’s association and/or comparison  of the NKF and/or Durai with the
Respondents, the Judge (and, likewise, Belinda Ang J in Lee Hsien
Loong (HC) ) was merely relying on the principle of defamation by
implication in determining the nat ural and ordinary meaning of the
Disputed Words.
92 For all of the reasons above, we agree with the finding of the Judge
that the natural and ordinary meaning of the Disputed Words in relation to
LKY is that LKY, like Durai:
(a) is corrupt;(b) has been running and continues to run Singapore in the same
corrupt manner as Durai ran the NKF; and
(c) has been using libel acti ons to cover up his misdeeds.
(2) The meaning of the Disputed  Words in relation to LHL
93 As mentioned earlier, following the amendment to his SOC vis-à-vis
the meaning of the Disputed Words,  LHL pleaded the Original Meaning as
an alternative to the New Meaning. Th e meaning of the Disputed Words, as
found by the Judge, was the New Meaning. The Appellants submitted as
their fourth ground of appeal ( ie, ground (d) of [23] above) that the Judge
erred in allowing this late amendment to LHL’s SOC. We shall address this
ground later, but it suffices to say here that we are of the opinion that the
Judge did not err in exercising his di scretion to grant LHL leave to amend
his pleadings.
94 For now, we shall focus on whet her the Disputed Words did indeed
bear the meaning that was found by the Judge ( ie, the New Meaning). Thispaginator.book  Page 101  Mond ay, January 4, 2010  12:22 PM

102 SINGAPORE LAW REPORTS [2010] 1 SLR
can be shortly dealt with, given our fi nding on the meaning of the Disputed
Words vis-à-vis  LKY.
95 As explained at [59]–[61] above, the words “government”,
“Singaporean officials” and “Singapo re’s great and good” in the Disputed
Words, besides referring to LKY, also  referred to LHL. We are of the view
that, for the same reasons as those set out above as to why the Disputed
Words bore the meaning that LKY wa s unfit for office because he was
corrupt, the Disputed Words also bore  the same meaning with respect to
LHL.
96 Counsel for the Appellants strenu ously argued that, irrespective of
whether or not the amendment of LHL’s SOC should have been allowed,
the fact that LHL did not initially plead the New Meaning in his SOCshowed that LHL himself did not believe that the Disputed Words bore that
meaning in relation to him; thus, it would be wrong of this court to uphold
a meaning ( ie, the New Meaning) that LHL himself had not contemplated
in the first place. This argument is not without logic, but, under the law of
defamation, what the plaintiff understands the offending words to mean is
only one of the factors to be considered in determining the natural andordinary meaning of those words in re lation to the plaintiff. What the
natural and ordinary meaning of the offending words is (in the absence of a
jury) is for the court, and no t the parties, to decide. It is established law that
it is the function of the court to determine how the ordinary reasonable
person would understand th e offending words, and, in deciding this issue, it
is irrelevant to the court what meaning was intended by the defendant or
what meaning was understood by the plaintiff.
97 For this reason, and in the light of  the Judge’s finding on the natural
and ordinary meaning of the Disputed Words vis-à-vis  LHL (which, as
stated at [95] above, we agree with), it is not necessary for us to decidewhether the Disputed Words bo re the Original Meaning ( ie, that LHL had
condoned LKY’s corruption), which wa s pleaded as the alternative meaning
by LHL after he amended his SOC. However, since the Respondents’counsel raised this meaning ( ie, the Original Meaning) in CA 163 in
relation to LHL as an alternative meaning of the Disputed Words in case
this court should find that the Judge erred in allowing the amendment toLHL’s SOC, we shall consider it briefly.
98 In the court below, the Judge found that the Disputed Words did not
bear the Original Meaning. In his subm issions before the Judge, counsel for
the Respondents placed emphasis on the word “he” in the statement “I
think he is actually afraid of something like that” [emphasis added] in
para 9 of the Article. The word “he”, the Respondents’ counsel submitted,
referred to LHL and not LKY (see th e Judgment at [91] and [95]). The
Judge rejected this argument and held that, having regard to the context ofpara 9 of the Article as well as the use therein of the various words “he”,
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 103
it was clear that “he” in the above-mentioned statement referred to LKY
instead (see the Judgment at [96]). We agree with the Judge, for the reasons
which he has given, that “he” in the last  sentence of para 9 of the Article was
a reference to LKY and not LHL.
99 Before us, the Respondents’ counsel abandoned the argument
(apropos LHL) that the word “he” in the last sentence of para 9 of the
Article referred to LHL and, instead, re lied on the last sentence of para 11,
viz, “Singaporeans have no way of kn owing whether officials are abusing
their trust as Mr. Durai did”. The Respondents’ counsel argued ( vis-à-vis
LHL) that the implicit message in  this statement was that, “while
‘Singaporeans’ i.e. members of the public … [had] no way of knowing of
[LKY’s] corruption, [LHL], who, as head of the Government, [had] access
to all the relevant information, would and [did] know of his father’s
corruption” and also his own corruption. LHL, by retaining LKY in his
Cabinet and allowing him to remain as  the chairman of the GIC, had thus
condoned LKY’s corruption. The Resp ondents’ counsel further submitted
that the comparison which paras 12–13 of the Article made between the
NKF’s successful libel suit in 1998 and the successful libel suits brought by
“Singaporean officials [and] … Singapore’s great and good” ( per para 13 of
the Article) implied that LHL had used libel suits to cover up and thereby
condone LKY’s corruption.
100 In our view, a careful reading of the last sentence of para 11 of the
Article in the context of the Disputed Words (especially para 11 itself)
shows that that sentence did not be ar the Original Meaning. Paragraph 11
of the Article spoke of the NKF Saga having “wider implications” and went
on to refer to the Government’s cont rol of large pools of public money in
other public institutions. As stated ab ove, the last sentence of para 11 would
suggest to the ordinary reasonable person that the Government (which
includes LHL) was guilty of the same kind of wrongdoing as that which the
NKF and/or Durai had engaged in. To sa y that this sentence goes further
and implies that LHL condoned his father’s corruption would be to divorce
that sentence from the context of para 11 as a whole.
101 Likewise, where the comparison in paras 12–13 of the Article between
the successful libel suit brought by the NKF in 1998 and the successful libel
suits brought by “Singaporean officials [and] … Singapore’s great and
good” (see para 13 of the Article) is co ncerned, the implication is that LHL,
like Durai, had similarly used defamati on suits to cover up his misdeeds ( ie,
his corruption) as well as to prevent others from questioning him, and had
“wrongly won” (see para 13) such suits in the past. The words in these two
paragraphs ( ie, paras 12–13 of the Article) do not suggest more than that,
and it would likewise be divorcing those words from the context of the
Article to say that they would sugges t to the ordinary reasonable person
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104 SINGAPORE LAW REPORTS [2010] 1 SLR
prevent LKY’s corruption and/or his (LHL’s) condonation of LKY’s
corruption from being exposed.
102 We also note that it is well known that LKY would himself sue any
person whom he considered had defame d him. In our view, this is another
factor which shows that the ordinary reasonable person would not read the
Disputed Words as implying that LHL  would feel the need to commence
libel suits to prevent LKY ’s alleged corruption from being exposed.
103 For these reasons, we agree with the Judge’s finding that, in relation to
LHL, the Disputed Words bore the New Meaning but not the Original
Meaning.
Ground (d): The amendment of LHL’s SOC
Did the Judge err in law in allowi ng the amendment to LHL’s SOC? 
104 The Appellants’ fourth ground of appeal relates to the late
amendment of LHL’s SOC (as can be se en from the chronology of events
outlined at [10]–[13] above, LHL applied for leave to amend his SOC only
after the Summary Judgment Applications had been heard and the parties’respective written submissions for those applications tendered to the
court). The Appellants’ case  in this regard was twofold. First, the Judge was
wrong to allow LHL’s “eleventh hour amendment” after a lapse of some twoyears from the date on which Suit 539 was commenced, by which time the
two-day hearing of the Summary Judgment Applications had already
concluded and the parties had already filed their written submissions forthose applications. Second, the Appellants complained (albeit in the context
of arguing, in respect of their fift h ground of appeal , why the defence of
justification should apply) that th ey were not given an opportunity to
amend their defence to re-plead the defence of justification after  the Judge
ruled that the Disputed Words bore the meaning contended for by the
Respondents.
105 With respect to the first argument, the Appellants relied on the
d e c i s i o n  o f  T a y  Y o n g  K w a n gJ  i n  Chun Thong Ping  ([18] supra ). There,
Tay J held that, in the circumstances of  that case, the plaintiff should have
withdrawn his application for summary judgment first before applying to
amend his SOC and then re-applying for summary judgment. The
Appellants argued that the Judge should have followed this procedure in theinstant case. In our view, the Appella nts’ argument harks back to a time
when procedural requirements were given greater weight. In any event,
Tay J’s decision in Chun Thong Ping  does not assist the Appellants’
argument. As the Judge pointed out (correctly, in our view), Chun Thong
Ping  was distinguishable on two ground s. First, the amendment which the
plaintiff in that case sought to make involved the addition of a new cause of
action. Second, the application for leave to amend was made after an
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 105
defend and while an appeal against the AR’s decision was pending. The
proposed amendment to the plaintiff’s SOC, if allowed, would effectivelyhave defeated the AR’s order granting the defendant unconditional leave to
defend and would also have rendered the pending appeal useless.
106 The Judge, aside from distinguishing Chun Thong Ping , also cast
doubt on Tay J’s reasoning in that case (see the Judgment at [108]–[113]),
but it is not necessary for us to deal with this issue in the present appeals. Itis also unnecessary for us to consider whether Chun Thong Ping  and the
Judge’s decision vis-à-vis  the amendment of LHL’s SOC in the present case
were in line with the decision of Chao Hick Tin J in Techmex Far East Pte
Ltd v Logicraft Products Manufacturing Pte Ltd  [1997] 2 SLR(R) 919, which
the Judge referred to at [113] of the Judgment.
107 The Appellants’ second argument vis-à-vis  the Judge’s decision to
allow LHL to amend his SOC so as to plead the New Meaning was that the
Appellants were denied due process as, after  the Judge found the Disputed
Words to bear the New Meaning, he did not give the Appellants the
opportunity to amend ( inter alia ) their defence in Suit 539 to plead
justification in relation to that part icular meaning. To put the significance
of this argument in its proper context,  it may be recalled that the Judge held
that, since the Appellants had pleaded justification to a different meaning of
the Disputed Words and not the New Meaning (or, for that matter, the
Original Meaning), their plea of justif ication fell by th e wayside (see sub-
para (a) of [20] above). In other words,  the Appellants pleaded justification
to a meaning that had not been put forward by LHL himself.
108 In our view, the Appellants’ argume nt in the preceding paragraph has
no merit. This argument is not only unsupportable on the ground alleged
(ie, that the Appellants were denied due process), but also hides the fact that
the Appellants were wholly respon sible for their failure to plead
justification to a meaning of the Disputed Words which was actually
canvassed by LHL. The fact was that, when the Judge allowed LHL to
amend his SOC, he also granted the Appellants leave to amend theirdefence in Suit 539 by 15 September 2008, which was approximately one
month from the date of the filing of LHL’s amended SOC (see [14] above).
For reasons unknown to this court, in the amended defence which they
filed pursuant to that direction ( ie, the second amended defence in
Suit 539), the Appellants failed to plea d justification to the New Meaning,
which was introduced by the amendment to LHL’s SOC. The Appellantswere remiss in this regard and they cannot now complain that the Judge
should have given them another opport unity to plead justification to the
New Meaning after deciding that that  was the meaning which the Disputed
Words bore in relation to LHL.
109 The Appellants also argued that it was improper for the Judge to allow
LHL to amend his SOC to plead a more defamatory meaning than the
Original Meaning as it breached the long-established common law rule laidpaginator.book  Page 105  Mond ay, January 4, 2010  12:22 PM

106 SINGAPORE LAW REPORTS [2010] 1 SLR
down in Slim  ([19] supra ) (“the rule in Slim ”) that the court is not entitled
to find a more defamatory meanin g than the meaning pleaded by the
plaintiff, although it may find a less defamatory meaning. In our view, this
argument confuses the court’s power to allow the plaintiff to amend his
SOC so as to plead a more defamatory  meaning with the court’s power (or,
to be more precise, the court’s entitlement) to find a more defamatory
meaning than the pleaded meaning. Th e Appellants, in challenging the
Judge’s decision to allow the amendment to LHL’s SOC, cannot rely on therule in Slim , which has nothing to do with the court’s power to allow
amendments to pleadings. The Appella nts should, instead, have challenged
the correctness of the Judge’s decision on this particular point by relying ongrounds such as estoppel and irremediable prejudice to the Appellants.
However, no such grounds were relied upon before this court.
110 We do not propose to restate the ge neral principles applicable in such
situations, except to point out that O 20 r 5(1) of the Rules of Court(Cap 322, R 5, 2006 Rev Ed) gives the co urt a wide discretion to allow
pleadings to be amended at any stage of the proceedings on such terms as
may be just. Order 20 r 5(1) reads:
Subject to Order 15, Rules 6, 6A, 7 an d 8, and this Rule, the Court may at any
stage of the proceedings  allow the plaintiff to amend his writ, or any party to
amend his pleading, on such terms as to costs or otherwise as may be just and
in such manner (if any) as it may direct . [emphasis added]
111 In Chwee Kin Keong v Digilandmall.com Pte Ltd  [2005] 1 SLR(R) 502
(“Chwee Kin Keong ”), this court said at [101]:
Under O 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), the
court may grant leave to amend a pleading at any stage of the proceedings.
T h i s  c a n  b e  b e f o r e  o r  d u r i n g  t h e  t r i a l ,  o r  a f t e r  j u d g m e n t  o r  o n  a p p e a l .
112 Indeed, local case law shows that our courts have allowed
amendments to be made to pleadings even:
(a) at the final stages of a trial after the parties have made their
closing submissions (see Chwee Kin Keong  at [101]–[103] and Lee
Siew Chun v Sourgrapes Packaging Products Trading Pte Ltd  [1992]
3 SLR(R) 855 at [91]–[96]);
(b) after summary or interlocut ory judgment has been obtained
(see Invar Realty Pte Ltd v Kenzo Tange Urtec Inc  [1990] 2 SLR(R) 66
at [21]–[22]); and
(c) pending an appeal or in the course of an appeal itself (see Soon
Peng Yam v Maimon bte Ahmad  [1995] 1 SLR(R) 279 at [25]–[30],
Asia Business Forum Pte Ltd v Long Ai Sin  [2004] 2 SLR(R) 173 (“ Asia
Business Forum ”) at [17] and Susilawati v American Express Bank Ltd
[2009] 2 SLR(R) 737 (“ Susilawati ”) at [56]; see also O 57 r 13(1) of thepaginator.book  Page 106  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 107
Rules of Court, which states that “t he Court of Appeal shall have all
the powers and duties as to amendment and otherwise of the High
Court”).
In this regard, reference may also be made to Singapore Civil Procedure
2007  (G P Selvam ed) (Sweet & Maxwell Asia, 2007) at paras 20/8/2, 20/8/8
and 20/8/12–20/8/18, as well as Singapore Court Practice 2006  (Jeffrey
Pinsler gen ed) (LexisNexis, 2006)  at paras 20/5/2 and 20/5/7–20/5/9.
113 The guiding principle is that am endments to pleadings ought to be
allowed if they would enable the real question and/or issue in controversy
between the parties to be determined (see Wright Norman v Oversea-
Chinese Banking Corp Ltd  [1993] 3 SLR(R) 640 (“ Wright Norman ”) at [6],
Chwee Kin Keong  at [102], Asia Business Forum  at [10] and Ketteman v
Hansel Properties Ltd  [1987] AC 189 (“ Ketteman ”) at 212; see also
Singapore Civil Procedure 2007  at para 20/8/8 and Singapore Court Practice
2006  at para 20/5/3). However, an important caveat to granting leave for the
amendment of pleadings is that it must be just to grant such leave, havingregard to all the circumstances of the case. Thus, this court held in Asia
Business Forum  that the court, in determining whether to grant a party
leave to amend his pleadings, must have regard to “the justice of the case”
(at [12]) and must bear in mind (at least) two key factors, namely, whether
the amendments would cause any prejudice to the other party which cannot
be compensated in costs and whether the party applying for leave to amend
is “effectively asking for a second bite at the cherry” (at [18]). These two keyfactors were endorsed recent ly again by this court in Susilawati  at [58].
114 It cannot be over-emphasised that  all the relevant circumstances of
the case at hand should be considered by the court in deciding whether or
not to allow an amendment to pleadings, and that delay in bringing the
application for leave to amend per se  does not constitute prejudice to the
other party. As this court stated in Wright Norman  at [23]:
… In our opinion, at the end of the da y, the most important question which
the court must ask itself is, are the en ds of justice served by allowing the
proposed amendment. Pleadings should not be used as a means to punish a
party for his errors or the errors of his solicitors. All relevant issues should be
investigated, provided the other party will not be prejudiced in a way which
cannot be compensated by costs. A ll relevant circumstances should be
considered by the court before it exer cises its discretion [as to] whether it
would allow an amendment. While the time at which an amendment is made
is a relevant consideration it is not necessarily decisive. Delay per se does notequal prejudice or injustice . We do not think any rigid rule should or can be
laid down on this. [emphasis added]
Similar pronouncements may also be found in Ketteman  at 212 and 220 as
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108 SINGAPORE LAW REPORTS [2010] 1 SLR
115 In our view, the applicable principles (as set out above) provide a
complete answer to the Appellants’ comp laint of excessive delay on the part
of LHL in applying for leave to amend his pleadings. Delay per se  is not a
valid objection to an application for le ave to amend pleadings. Prejudice is,
but the Appellants did not argue that they were prejudiced (in a mannerwhich could not be compensated in costs) by the amendment to LHL’s
SOC. The only prejudice which they alleged was in relation to the omission
by the Judge to give them an opportunity to amend their defence to pleadjustification vis-à-vis  the New Meaning after  he found that that was the
natural and ordinary meaning of the Disputed Words in relation to LHL
(which argument we have rejected as  being wholly without merit (see [108]
above)). We agree with the submission of the Respondents’ counsel that the
delay in the present case was only apparent but not real in the sense that it
was caused to a large extent by the Appellants’ own doing in:
(a) applying to challenge the court’s jurisdiction and to set aside the
service of the writs of summons on the Appellants (see Lee Hsien
Loong v Review Publishing Co Ltd  [2007] 2 SLR(R) 453); and
(b) applying twice to admit Queen’s Counsel as lead counsel to
defend the Defamation Suits (see Re Millar Gavin James QC  [2007]
3 SLR(R) 349 and Re Millar Gavin James QC  [2008] 1 SLR(R) 297),
the last of which applications was (according to the Respondents)
disposed of only on 26 October 2007.
In the circumstances, we are of the view that the Judge was entitled to
exercise and had properly exercised hi s discretion to allow LHL to amend
his SOC.
The rule in Slim
116 Given that LHL’s application for leave to amend his SOC to plead the
New Meaning was allowed, the rule in Slim  was simply not applicable.
However, the Judge nonetheless decided to consider what the legal position
would have been if the amendment had not been allowed and if he had then
been asked to determine, on the basis of LHL’s original SOC ( ie, LHL’s SOC
as it stood on 22 August 2006, the da te on which Suit 539 was commenced),
whether the Disputed Words bore th e New Meaning, which was alleged by
the Appellants to be more defamatory  than the Original Meaning. In the
Judge’s view, the New Meaning was no t substantially different from the
Original Meaning and the latter was sufficient to cover both meanings;
thus, even if LHL had not been granted leave to amend his SOC, the courtwould still have been inclined to grant him summary judgment (see the
117 As the rule in Slim  is an academic issue for the purposes of the present
appeals, we do not intend to address it in detail. However, before moving
on to the Appellants’ next ground of appeal (which is ground (e) of [23]paginator.book  Page 108  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 109
above), we think we should give our view s on the status in Singapore of this
rule since the Judge invited us to revisi t the rule (see th e Judgment at [141]).
In this regard, the Judge expressed his preference for the approach taken by
the High Court of Australia in Chakravarti  ([19] supra ), which, in his view,
was a departure from the rule in Slim  and stood for “the [opposite]
proposition that a court may find a meaning more defamatory than that
pleaded” (see the Judgment  at [135]). The Judge came to this conclusion
after considering the submissions of counsel for the Respondents on this
issue.
118 As alluded to at [109] above, the rule in Slim  is that the plaintiff may
not rely on and the court may not find a meaning more defamatory than
that pleaded by the plaintiff, although the plaintiff may rely on and the
court may find a less defa matory meaning. At 175–176 of Slim  ([19] supra ),
Diplock LJ said:
The plaintiffs, as they were entitled to  do, chose to set out in their statement
of claim the particular defamatory meaning which they contended was the
natural and ordinary meaning of the words. Where this manner of pleading is
adopted, the defamatory meaning so averred is treated at the trial as the mostinjurious meaning which the words are capa ble of bearing, and the plaintiff is,
in effect, estopped from contending that the words do bear a more injurious
meaning and claiming damages on that basis. But the averment does not ofitself prevent the plaintiff from contending  at the trial that even if the words do
not bear the defamatory meaning alleged in the statement of claim to be the
natural and ordinary meaning of the words, they nevertheless bear some other
meaning less injuri ous to the plaintiff’s reputation  but still defamatory of him ,
nor does it relieve the adjudicator of th e duty of determining what is the right
natural and ordinary meaning of the wo rds, though nice questions may arise
as to whether one meaning is more or less injurious than another. C’est pirequ’un crime c’est une faute.
Where an action for libel is tried by [a] judge and [a] jury, it is for the parties
to submit to the jury their respective co ntentions as to what is the natural and
ordinary meaning of the words complain ed of, whether or not the plaintiff’s
contention as to the most injurious meaning has been stated in advance in his
statement of claim. And it is for th e judge to rule whether or not any
particular defamatory meaning for which the plaintiff contends is one whichthe words are capable of bearing. The only effect of an allegation in the
statement of claim as to the natural and ordinary meaning of the words is that
the judge must direct the jury that it is not open to them  to award damages
upon the basis that the natural and or dinary meaning of the words is more
injurious to the plaintiff’s reputation than the meaning alleged, although if they
think that the words bear a meaning defamatory of the plaintiff which is either
that alleged or is less injurious to the plaintiffs reputation, they must assessdamages on the basis of that natural and ordinary meaning which they think is
the right one . But where a judge is sitting alon e to try a libel action without a
jury, the only questions he has to ask himself are: ‘Is the natural and ordinarypaginator.book  Page 109  Mond ay, January 4, 2010  12:22 PM

110 SINGAPORE LAW REPORTS [2010] 1 SLR
meaning of the words that which is alleged in the statement of claim?’ and: ‘If
not, what, if any, less injurious defamatory meaning do they bear?’
119 Diplock LJ’s exposition above is generally considered by subsequent
cases to have laid down the rule in Slim  (see, for example, Goh Chok Tong
([19] supra ) at [41]–[46] and Chakravarti  a t[ 5 3 ] ) .  I n  t h e  s a m e  c a s e  ( ie,
Slim ), Salmon LJ adopted the stricter view that, without any amendment to
the SOC, it was not permissible for the plaintiff to rely on a differentmeaning even if  that meaning was less injurious than the meaning originally
pleaded (at 185):
I am inclined to think that the plaintiff is bound by his pleading – otherwise it
may prove to be nothing but a snare for the defendant. I do not mean, of
course, that the plaintiff is strictly co nfined to the very shade or nuance of
meaning which he has pleade d – but what he sets up at the trial must come
broadly within the meaning he has pleaded . Nor do I think that, without any
amendment of his statement of claim, it  would be permissible for him to set
up any entirely different meaning, even if it were less injurious to the plaintiff
than the meaning pleaded . [emphasis added in italics and bold italics]
120 The last sentence in the above quotation from Slim  (ie, the sentence
set out in bold italics) clearly recognises that the plaintiff is able to amendhis SOC to plead a different meaning, although it is not clear whether, by
that statement, Salmon LJ meant to indicate that the plaintiff could amendhis case to plead a more defamatory meaning. Similarly, Diplock LJ’sstatement in Slim  at 175–176 (reproduced at [118] above), although
providing expressly that the plaintiff may rely on a less defamatorymeaning, is silent on this point. Gatley  ([27] supra ) at para 28.24 interprets
Slim  as having laid down the proposition that:
Save where he is permitted to amend, the general rule is that a claimant is
bound by his pleading as to meaning, at least to the extent that he is not
allowed at trial to contend that the words bear a more injurious meaning thanthat pleaded.
121 The rule in Slim  as formulated by Diplock LJ in Slim  itself was applied
by this court in JJB v LKY (1992)  ([19] supra ) at [24]–[25] as well as in Goh
Chok Tong  at [43] and [46]. In the latter case, Yong Pung How CJ said:
43 Turning to the position in Singapore,  this court has accepted that it is
usual for the plaintiff to plead the highest defamatory meaning of the words
complained of and the co urt may find a lesser defa matory meaning than that
pleaded by the plaintiff and in such an event the claim may still succeed,
unless there is some valid defence to the claim … This court [in JJB v
LKY (1992) ], in effect, adopted Diplock LJ’s view, although the case of Slim v
Daily Telegraph Ltd  … was not expressly referred to in the judgment .
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 111
46 We are not saying that the plaintiff is not bound by the meaning of the
offending words he has pl eaded, whether it be the natural and ordinary
meaning or the innuendo meaning. Certainly he is bound by the pleadings, likein all other cases . But the court in deciding the right meaning [which] the words
convey to the ordinary man may determin e, and is entitled to determine, a
meaning less defamatory than that pleaded by the plaintiff. Of course, the court
cannot determine a meaning more defamatory than that pleaded by the
plaintiff, as that would be giving to th e plaintiff more than what he has asked
for. Nor are we saying that the plaintif f  i s  a t  l i b e r t y  t o  p l e a d  a  v e r y  h i g h
defamatory meaning, which is strained and unnatural and is totally
unwarranted by the offending words, an d then at the trial contend a lesser
defamatory meaning and ask the court to find that le sser meaning. In such [a]
case, the court may well compel him to  amend his pleadings and allow the
defendant an opportunity to consider whether he has a defence ofjustification for the lesser meaning and condemn the plaintiff in costs.
Further, where the plaintiff has pleaded such a high defamatory meaning and
refuses to amend his pleadi ngs but steadfastly stands by that meaning, as in
the case of Prichard v Krantz  [(1984) 37 SASR 379] the court may well hold
that he is pinned precis ely to the meaning he has pleaded and rule that the
words are incapable of [bearing] such  meaning and dismiss the claim. All
these are matters within the jurisdiction of the trial judge who is in full
control of the proceedings, and much depends on the circumstances of thecase.
122 In Chakravarti  ([19] supra ), the plaintiff sued the publisher of a
newspaper for publishing two articles  in the newspaper which he claimed
had defamed him. In respect of one of the articles (“the first article”), the
plaintiff pleaded that it conveyed the specific meaning that (at [47]):
(a) while he was an executive of a bank’s subsidiary, he had been
involved in criminal or civil miscon duct in respect of loans from the
subsidiary to himself; and
(b) his conduct in receiving such lo ans, which were in excess of the
loans that he was entitled to, was such as to render him not a fit and
proper person to be or remain as an executive of the subsidiary.
123 At first instance, the trial judge rul ed in favour of the plaintiff on both
the meaning set out in sub-para (a) of  the preceding paragraph (“the first
meaning”) and the meaning set out in sub-para (b) of that paragraph (“the
second meaning”), but, on appeal, the Full Court of the Supreme Court of
South Australia (“the Full Court”) reversed his decision and held that the
first article did not bear either the first meaning or the second meaning. The
Full Court ruled that, in relation to the first meaning, the first article merely
imputed a suspicion of misconduct and not actual misconduct by the
plaintiff, and, in relation to the seco nd meaning, that article did not refer
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112 SINGAPORE LAW REPORTS [2010] 1 SLR
124 On further appeal, the High Court of Australia found for the plaintiff
on both of the meanings pleaded in re spect of the first article. In reaching
its conclusion, the court considered Slim  as well as the extent to which the
plaintiff should be bound by th e meaning which he had pleaded.
At [20]–[21] of Chakravarti , Brennan CJ and McHugh J said:
20 In [ Slim ], Diplock LJ and Salmon LJ expressed views which, at least
textually, appear to conflict. Salmon LJ sa id that a plaintiff is bound by his or
her pleading – ‘otherwise it may prov e to be nothing but a snare for the
defendant’. Diplock LJ said that a plaintiff could rely on any meaning which
was less injurious than the pleaded meaning. In Sungravure Pty Ltd v Middle
East Airlines Airliban SAL  [(1975) 134 CLR 1], Stephen J referred to both
views, saying that the plaintiff ‘was not free thereafter to rely upon some quitedifferent meaning which he might seek to read into the words complained of
… at least not one more injurious’.
21 The proposition advanced by Salmon LJ in  Slim is too rigorous : it
appears to sacrifice form to substance and to elevate minu te differences from
the meaning pleaded to the status of a substantial defence. On the other hand,
a less injurious meaning than the meaning pleaded is not always without
significance as Diplock LJ seem[ed] to imply. A defendant who could notjustify or otherwise defend a publication having the meaning pleaded by the
plaintiff might have been able to justify or otherwise defend a defamatory
publication having a less injurious meaning. But a different nuance of
meaning from the meaning pleaded may go to, and be found by, the jury
provided it is not unfair to the defendan t to allow the plaint iff so to depart from
the meaning pleaded .
125 Similarly, at [53]–[60] of Chakravarti , Gaudron and Gummow JJ said:
53 The consequences of a plaintiff pleading a specific meaning are far
from settled. In [ Slim ], Salmon LJ expressed the view that a ‘plaintiff is bound
by his pleading – otherwise it may prove to be nothing but a snare for the
defendant’, while Diplock LJ took the view  that a plaintiff could rely on any
natural or ordinary meaning which [was] less injurious than the pleadedmeaning. …
…59 … [A]lthough the majority in the Full Court held that Mr Chakravarti
[the plaintiff] could not rely on the lesser meaning which the Advertiser [the
defendant] asserted, namely, that he  was suspected of being involved in
criminal or civil misconduct, which le sser meaning it soug ht to justify and
defend, there could have been no disadvantage to the Advertiser in allowing
him to do so.
60 As a general rule, there will be no disadvantage in allowing a plaintiff to
rely on meanings which are comprehended in, or are less injurious than the
meaning pleaded in his or her statement of claim. So, too, there will generallybe no disadvantage in permitting reliance on a meaning which is simply a
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 113
if a plaintiff is allowed to rely on a substantially different meaning or, even, a
meaning which focuses on some different factual basis . Particularly is that so if
the defendant has pleaded justification or , as in this case, justification of an
alternative meaning. However, the question [of] whether disadvantage will or
may result is one to be answered having  regard to all the circumstances of the
case, including the material which is said to be defamatory and the issues inthe trial, and not simply by reference to the pleadings.
126 Kirby J, in a separate judgment, said (see Chakravarti  at [139]):
In an attempt to reconcile the desirabl e encouragement of particularisation of
claims, the avoidance of ‘trial by ambush’ and the consideration of the
entirety of the publication in question , courts will uphold the discretion of
the trial judge, including a discretion to confine parties to the imputations
pleaded where that is required by considerations of fairness. However, a more
serious allegation will generally be taken to include a less serious one unless thelatter is of a substantially different kind. It is true that dicta appear in decisions
of this Court, other Australian courts and courts overseas which favour a strict
approach: binding a plaintiff at the tr ial to the precise imputations pleaded.
However, I do not consider that these dicta represent th e law. The better view is
that the rules of pleading must, in those jurisdictions governed by the common
law, adapt to the fair evaluation by the tribunal of fact of the mattercomplained of . If the publisher claims surprise, prejudice or other
disadvantage, the trial judge may protect it. No complaint can arise where
[the] additional imputations found represent nothing more than nuances orshades of meaning of those pleaded . [emphasis added]
127 It is clear from the above passages that the propositions enunciated by
the various judges in Chakravarti  are all consistent with Diplock LJ’s
statement in Slim  that the plaintiff may not rely on a meaning which is
more defamatory than that which he has pleaded (and, similarly, the court
may not find that the offending words bear a more defamatory meaning
than that which has been pleaded). In Chakravarti , the High Court of
Australia was not faced with a plaintiff who was arguing for a more
defamatory meaning than that which he  had originally pleaded, but, rather,
with a plaintiff who was relying on a variant, shade or nuance of the pleaded
meaning, which variation did not give rise to a more defamatory meaning
than the meaning originally pleaded. It bears noting that the learned
authors of Gatley  cite both Slim  and Chakravarti  in the same footnote  as
authorities for the rule in Slim  (see Gatley  at para 28.24, n 93), save that, in
respect of Chakravarti , the authors state additionally that the High Court of
Australia expressed in that case (see Gatley  at para 28.24, n 93):
… the view … that there will generally be no disadvantage in permitting
reliance on a meaning which is simply a variant of the pleaded meaning but
that t h e r e  m a y  b e  a  d i s a d v a n t a g e  i f  a  p l a i n t i f f  i s  a l l o w e d  t o  r e l y  o n  a
substantially different meaning or, even, a meaning which focuses on some
different factual basis . [emphasis added]paginator.book  Page 113  Mond ay, January 4, 2010  12:22 PM

114 SINGAPORE LAW REPORTS [2010] 1 SLR
It seems to us that the point made by the italicised words in the above
quotation is consistent with Diplock LJ’s proposition in Slim  that the
plaintiff cannot rely on a more de famatory meaning than that pleaded.
Contrary to what the Judg e suggested at [135] of th e Judgment, it is quite
clear to us that Chakravarti  does not suggest a different or more liberal
approach compared to that propou nded by Diplock LJ and is actually
consistent with  Diplock LJ’s approach.
128 In our view, the rule in Slim  is a sensible and fair rule in defamation
cases, and this court was co rrect in following it in Goh Chok Tong  ([19]
supra ), although it justified its decision on the ground that to find that the
offending words bore a more defa matory meaning than the meaning
pleaded by the plaintiff “ would be giving to the plaintiff more than what he
[had] asked for ” [emphasis added] ( Goh Chok Tong  at [46]; cf the
explanation given by Salmon LJ in Slim  at 185). The general rule in an
adversarial litigation system is that the plaintiff should be bound by his
pleadings. There is no reason why this rule should be departed from in adefamation action, especially where th e plaintiff is claiming that he has
been defamed by specific  words used by the defendant ( ie, the offending
words). In our view, the plaintiff must  b e  t h e  b e s t  p e r s o n  t o  k n o w  h o w ,
where and why he has been defamed by the offending words, and,
therefore, it would be unfair to the defendant if the plaintiff were allowed at
the trial to rely on a more defamatory meaning than that which he haspleaded. Indeed, in Slim , Diplock LJ went so far as to say that the plaintiff is
“in effect … estopped from contending that the words do bear a more
injurious meaning” [emphasis in original] ( Slim  at 175), which, in our view,
was shorthand for the principle that the plaintiff is bound by his pleadings.
129 In this connection, we note that, in Chakravarti , Gaudron and
Gummow JJ said as follows at [58]:
Doubtless, the pressures on court time and the cost of li tigation ordinarily
require that, at trial, a party be held to the particulars or those parts of the
pleadings which specify the case to be made if departure would occasiondelay or disadvantage the other side. The same considerations apply to
defamation proceedings . Words do not mean what the parties choose them to
mean and, at least ordinarily, the defama tory material will, itself, sufficiently
identify and, thus, confine the meanings on which [the parties] may rely.
Moreover, as was pointed out in National Mutual Life Association of
Australasia v GTV Corporation Pty Ltd  [[1989] VR 747], ‘[i]t would be most
unlikely that the parties would between them fail to hit upon, at least
approximately, all the reasonably open meanings’. [emphasis added]
In our view, although “[w]ords [may ] not mean what the parties choose
them to mean” ( Chakravarti  at [58]), it accords with common sense that
the plaintiff is unlikely to plead a less defamatory meaning if the offendingwords are capable of having a more de famatory meaning (unless, of course,
he has misconstrued their meaning), especi ally since, in law, he is permittedpaginator.book  Page 114  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 115
at the trial to rely on a less defamatory meaning if he is unable to make out
the more defamatory meaning originally pleaded.
130 For all of the above reasons, we prefer Diplock LJ’s view in Slim , viz,
that, where the plaintiff has chosen to set out in his SOC the particular
defamatory meaning which he cont ends is the natural and ordinary
meaning of the offending words, “the  defamatory mean ing so averred is
treated at the trial as the most injurious meaning  which the words are
capable of bearing” [emphasis added] ( Slim  at 175). As we said earlier, the
plaintiff must be the best person to know the sting of the alleged libel
c o n c e r n i n g  hi m .  H e  s ho u l d  th u s  b e  bound by the meaning which he has
pleaded, subject to any change brough t about by an amendment to his SOC
so as to plead a more defamatory or  variant meaning from that originally
pleaded.
131 It should be note d that Diplock LJ did not say in Slim  that, since the
plaintiff is bound by the meaning of  the words which he has pleaded, he
would not be allowed to amend his pleadings to plead a more defamatorymeaning. Just like in all other cases, the Rules of Court give the court the
power to allow the plaintiff to amend his pleadings at any stage of the
proceedings provided the defendant is not irremediably prejudiced by the
amendment. This principle should apply regardless of whether the
amendment which the plaintiff seeks to make is to plead a more defamatory
meaning or a less defamatory mean ing than that originally pleaded.
Although, as Kirby J observed in Chakravarti  at [139], a more serious
allegation would usually include a less serious one, with the result that the
court may find a less defamatory mean ing than that originally pleaded, this
principle does not apply without qual ification for there may come a point
where a less serious allegation amou nts to a substantially different
allegation from that originally pleaded;  in such circumstances, the plaintiff
should amend his pleadings to expressly plead the less defamatory meaning.
As King CJ stated in Prichard v Krantz  (1984) 37 SASR 379 (at 386):
In many cases, … the more serious allegation can be regarded as including the
less serious . In that sense, the court is free to attribute to the words a less
injurious meaning than that attributed to them in the pleading. An allegation
that the words used mean that the plai ntiff is a rapist no doubt includes a
meaning that he has been guilty of a less serious type of sexual assault. An
allegation that the words mean that a person is a robber no doubt includes a
meaning that he has taken property by criminally dish onest means falling
short of robbery. I t  s e e m s  t o  m e ,  h o w e v e r ,  t h a t  i t  w o u l d  b e  c o n t r a r y  t o  t h e
purpose of pleadings and particulars if a plaintiff could obtain a judgment
upon the basis of a meaning of the words used which was not merely a lessserious form of the imputation pleaded, but amounted to an imputation of a
substantially different kind . [emphasis added]paginator.book  Page 115  Mond ay, January 4, 2010  12:22 PM

116 SINGAPORE LAW REPORTS [2010] 1 SLR
132 For the above reasons, we do not agree with the Judge that
Chakravarti  departed from or modified the rule in Slim , which, as we stated
at [128] above, is a sensible and fair rule.
Ground (e): The defence of justification
133 The Appellants’ fifth ground of appeal is that the Judge was wrong to
conclude that “the defence of justif ication [fell] away” (see the Judgment
at [145]) merely because the Appellants  pleaded justification to a meaning
which the Respondents had not asserted to be the meaning of the DisputedWords. The principles in this area of the law are well settled. The defendant
who relies on the defence of justification must plead precisely the meaning
which he seeks to justify. As this court stated in Aaron  ([20] supra ) at [68]:
On this issue [of justification] it is necessary to consider first what precisely
the [defendants] sought to justify. The law on this point is now quite clear.
Where a defendant in a defamation action pleads justification, he must do so
in such a way as to inform the plaintiff and the court precisely what meaning ormeanings he seeks to justify : see Lucas-Box v News Gr oup Newspapers Ltd
[1986] 1 WLR 147, at 153; Viscount De L’Isle v Times Newspaper Ltd  [1988]
1 WLR 49, at 60 and Prager v Times Newspapers Ltd  [1988] 1 WLR 77, at 86.
All these three cases were decided by the English Court of Appeal and the
relevant passages of the judgments of various members of the court were set
out and commented on in Lee Kuan Yew v Davies Derek Gwyn  [1989]
2 SLR(R) 544 at [45] to [48], and it is unnecessary to repeat them here. …
134 To succeed in a plea of justificat ion, the defendant need only prove
that the substance or gist of the offending words (as opposed to those parts
of the offending words which do no t add to the sting of the alleged
defamation) is true (see Aaron  at [73] and Oei Hong Leong v Ban Song Long
David  [2005] 1 SLR(R) 277 (“ Oei Hong Leong ”) at [94]; see also Gatley  ([27]
supra ) at para 11.9 and Evans on Defamation  ([26] supra ) at pp 88–89).
135 It should also be pointed out that the defendant is not obliged to
justify the particular defamatory me aning put forward by the plaintiff,
although, if the defendant seeks to justify a defamatory meaning different
from the meaning propounded by the plaintiff, he must plead clearly thedifferent meaning which he seeks to justify (see Evans on Defamation  at
p 96):
Obviously, a defendant to a defamation  action is not obliged to ascribe a
meaning to the words in issue, for … the plaintiff must establish the
defamatory meaning of the words. However, if a defendant pleadsjustification, then he must show in his pleadings the meaning which he seeks
to justify. The defendant is obliged to plead justification in a way which
makes it clear [what] the meaning [which] he seeks to justify [is]. In
situations where the defendant puts fo rth a defamatory meaning different from
that pleaded by the plaintiff, and which he seeks to justify, he must clearly and
unequivocally plead the meanin g which he seeks to justify . [emphasis added]paginator.book  Page 116  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 117
(Reference may also be made to Gatley  at paras 11.14 and 29.7, where the
relationship between a plea of justification, the case advanced by theplaintiff and the meaning of th e offending words is examined.)
136 In the present case, the Appellants pleaded justification, together with
a long string of particulars, in respec t of a different meaning of the Disputed
Words from that contended for by the Respondents (see the first amendeddefence in Suit 540 at para 26 and th e second amended defence in Suit 539
at para 26). As a related argument, the Appellants also contended that the
Judge “was unfair to deny [them] the opportunity to recast their pleadings
to deal with his ruling on meaning”. The Appellants’ awareness that the
Judge’s ruling ( ie, the Judge’s decision to allow LHL to amend his SOC and
the consequential directions given by the Judge in relation to the filing ofthe Appellants’ amended defence) cannot be faulted in law would probablyexplain why the Appellants have raised the issue of the alleged denial of dueprocess. In our view, this is the Appellants’ real substantive ground of
appeal where the defence of justification is concerned, but it is a non-starter
because the defence of justification naturally fell by the wayside once theJudge found that the Disputed Words bore the meaning pleaded by theRespondents and not the meaning that  the Appellants sought to justify.
137 The Appellants further submitted  before this court that, since
offending words could have different le vels of defamatory meaning, on the
facts of the present case, some of the particulars which they pleaded inpara 26 of the second amended defence in Suit 539 and para 26 of the firstamended defence in Suit 540 vis-à-vis  the plea of justification “could go to
justify lesser meanings contained wi thin the meaning of corruption”. This
may well be the case since the word “c orrupt”, as we stated earlier (at [73]
above), encompasses a variety of wrongdoings such as dishonesty, abuse ofpower or breach of public trust for personal gain, etc. However, the
Appellants have not told us which lesser meaning of  corruption they seek to
justify. What is clear before both the Judge and this court is that the
Appellants pleaded: (a) a total denial that the Disputed Words meant that
the Respondents were corrupt; and (b) a defence of justification vis-à-vis  a
meaning which, according to them, did not impute corruption. Since the
Appellants based their case on the premise that the Disputed Words did notbear any connotation of corruption at all, the Appellants weremisconceived in also seeking, at the same time, to justify “lesser meanings
contained within the meaning of corrup tion”. In any event, an allegation
that a government minister is corrupt, especially if the minister concernedis the Prime Minister, a former prime minister or a senior member of theCabinet, is ex facie  defamatory of that minister unless the person making
the allegation has a defence under the law. Since the Appellants did not inany way plead justification in respect of the allegation of corruption which
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118 SINGAPORE LAW REPORTS [2010] 1 SLR
meaning in relation to the allegation of corruption did not in any way assist
the Appellants’ plea of justification.
Ground (f): The defence of fair comment
1 3 8 T h e  A p p e l l a n t s ’  s i x t h  g r o u n d  o f  a p p e a l  i s  t h a t  t h e  J u d g e
mischaracterised (at [152] of the Judg ment) the statements in the Disputed
Words as statements of facts when they were actually comments, and thuserred in holding that the defence of  fair comment was not sustainable.
139 The defence of fair comment, like th e defence of justification, is also
well settled. To successfully invoke the defence of fair comment, thedefendant must prove four elements, which were articulated by this court in
Chen Cheng v Central Christian Church  [1998] 3 SLR(R) 236 (“ Chen
Cheng ”) at [33] as follows:
… There are four elements which the defendants must establish in order to
succeed on the plea of fair comment:
(a) the words complained of are comments, though they may consist
of or include inference[s] of facts ;
(b) the comment is on a matter of public interest;
(c) the comment is based on facts ; and
(d) the comment is one which a fair-minded person can honestly
make on the facts proved.
See Jeyaretnam Joshua Benjamin v Goh Chok Tong   [1983–1984] SLR(R) 745
at [18] and Oversea-Chinese Banking Corp Ltd v Wright Norman  [1994]
3 SLR(R) 410 at [24].
140 The fundamental rule is that the defence of fair comment applies only
to comments  and not imputations of facts, and the difficulty lies precisely in
trying to distinguish a comment from a statement of fact. This difficulty, as
well as the test for distinguishing between comments and statements offacts, has been aptly summarised by the learned authors of Evans on
Defamation  ([26] supra ) at p 103 as follows:
It will often be very difficult to decide whether a given statement expresses a
comment or [an] opinion, or by contra st constitutes an allegation of fact . The
same words published in one context may be statement[s] of fact, yet in
another may be comment[s]. Therefore, whether this element of the defence is
established is one of fact, dependen t upon the nature of the imputation
conveyed, and the context and circumstances in which it is published. The testin deciding whether the words are fact  or comment is an objective one –
namely, whether an ordinary, reasonable  reader on reading the whole article
would understand the words as comment[s] or [as] statements of fact . The
statement must be recognisable as [a ] comment by the ordinary, reasonable
and fair-minded reader having regard to  the whole context of the publication.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 119
a fact or making a comment, then the proper approach will be to deny the
defendant the benefit of the defence . [emphasis added]
Similar pronouncements may also be found in Chen Cheng  at [35], Lee
Kuan Yew v Davies Derek Gwyn  [1989] 2 SLR(R) 544 (“ Davies ”) at [53],
Jeyasegaram David v Ban Song Long David  [2005] 2 SLR(R) 712
(“Jeyasegaram David ”) at [50] and Gatley  ([27] supra ) at paras 12.6 and
12.13.
141 Generally speaking, a comment is often equated with a statement of
opinion (see Tun Datuk Patinggi Haji Abdul- Rahman Ya’kub v Bre Sdn Bhd
[1996] 1 MLJ 393 at 408, where it was stat ed that “it is settled law that a
comment is a statement of opinion on facts truly stated”, and Lee Kuan Yew
v Jeyaretnam Joshua Benjamin  [1979–1980] SLR(R) 24 (“ Jeyaretnam JB ”)
at [57], where it was stated  that “[a] comment is a statement of opinion on
facts”) or a statement of conclusion (see Mitchell v Sprott  [2002] 1 NZLR
766 at [19], where it was st ated that “[t]he defenc e applies when the words
appear to a reasonable reader to be conclusionary”). More specifically, a
comment has been said to be “somet hing which is or can reasonably be
inferred to be a deduction, inferenc e, conclusion, criticism, judgment,
remark, observance, etc.” (see Clarke v Norton  [1910] VLR 494 at 499; see
also generally Gatley  at para 12.6).
142 In the court below, the Judge rejected the defence of fair comment for
three main reasons,  namely (see the Judgment at [152]):
(a) the Disputed Words did not di stinguish clearly between facts
and comments;
(b) the Relevant Statements (as defined at sub-para (b) of [20]
above), which the Appellants alle ged were comments, were actually
statements of facts; and
(c) the Relevant Statements, even if they were comments, were not
comments based on facts.
143 The Appellants’ arguments before us  were basically that the Judge was
wrong to find that the Relevant Statem ents were statements of facts and not
comments, and that, even if these statements were comments, they were not
based on facts.
144 As mentioned earlier, whether a statement is a comment or a
statement of fact is “[a question] of fact, dependent upon the nature of the
imputation conveyed, and the context and circumstances in which it is
published” (see Evans on Defamation  ([26] supra ) at p 103). The Judge gave
extensive reasons as to why he considered the Relevant Statements, when
read in the context of the Article as  a whole and taking into account the
circumstances of the present case, to be statements of fact rather thancomments (see the Judgment at [152]–[ 153]). We agree with those reasons.
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120 SINGAPORE LAW REPORTS [2010] 1 SLR
say that the context of the Article as well as the tone and language employed
therein would leave the ordinary reasonable person with no doubt that theAppellants were putting across factual  statements rather than comments.
The Relevant Statements not only contain no hint of any opinion or
conclusion, but also appear to be definitive statements of facts (see, eg, the
statement “[t]hat raises the question of whether Singapore deserves its
reputation for squeaky-clean govern ment” in para 10 of the Article; the
assertion that “Singaporeans have no way of knowing whether officials are
abusing their trust as Mr. Durai did” in para 11; and the two questions atthe end of para 13, viz, “how many other libel su its have Singapore’s great
and good wrongly won, resulting in th e cover-up of real misdeeds?” and
“are libel suits deliberately used as a tool to suppress qu estioning voices?”).
It does not matter that some of the Relevant Statements were couched in the
form of questions as the test for whether these statements were statements
of fact or comments is essentially wh ether the ordinary reasonable person,
on reading the Article as a whole, would understand these statements to be
comments or statements of fact (see Evans on Defamation  at p 103).
145 At this juncture, we would like to  add an observation on the defence
of fair comment. The Appellants ar e no strangers to court actions for
defamation in so far as publications  in FEER have previously been the
subject of defamation suits in Singapore. As a matter of prudence, allreputable publishers, especially those whose publications have aninternational readership, have lawy ers to advise them on the law of
defamation in the various jurisdictions in which they publish. We assume
that RP must also have followed this salutary practice. Given the applicablelegal principles on the defence of fair  comment (as articulated by case law)
and the difficulty of distinguishing comm ents from statements of fact, it is
incumbent upon the media to make it clear in its editorials or opinion
pieces which statements are comments and which statements are simply
factual statements or imputations of fact.
146 Ultimately, if a publisher is sued  for defamation, the burden would be
on it to establish the defence of fair comment. It should be borne in mind
that, if the publisher fails to distingu ish clearly between statements of facts
and comments, the statements in question would not be protected by theplea of fair comment and would be considered by the court to be statementsof facts (see Evans on Defamation  at p 103). The rationale for this approach
was explained by Fletcher Moulton LJ in the English CA case of Hunt v
The Star Newspaper Co Ltd  [1908] 2 KB 309 (“ Hunt ”) at 319–320, as
follows:
The law as to fair comment, so far as is  material to the present case, stands as
follows: In the first place, comment in order to be justifiable as fair comment
must appear as comment and must not be so mixed up with the facts that thereader cannot distinguish between what is report and what is comment … The
justice of this rule is obvious . If the facts are stat ed separately and thepaginator.book  Page 120  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 121
comment appears as an inference drawn from those facts, any injustice that it
might do will be to some extent negati ved by the reader seeing the grounds
upon which the unfavourable  inference is based. But if fact and comment be
i n t e r m i n g l e d  s o  t h a t  i t  i s  n o t  r e a s o n ably clear what portion purports to be
inference, he will naturally suppose that the injurious statements are based on
adequate grounds known to the writer though not necessarily set out by him . In
the one case the insufficien cy of the facts to support the inference will lead
fair-minded men to reject the inference. In the other case it merely points to
the existence of extrinsic facts which the writer considers to warrant the
language he uses. … Any matter, therefore, which does not indicate with a
reasonable clearness that it purports to be comment, and not [a] statement of
fact, cannot be protected by the plea of fair comment . [emphasis added]
In a similar vein, in London Artists Ltd v Littler Grade Organisation Ltd
[1969] 2 QB 375 at 395, Edmund Davies LJ, citing Hunt , stated that “[i]t
behoves a writer to indicate clearly wh at portions of his work are fact and
what [portions] are comment” (see also generally Gatley  at para 12.13).
147 The media has a responsibility to its readers and, in particular, to the
potential plaintiff whose reputation may be seriously damaged by carelesswords which the ordinary re asonable person may view  as statements of fact
rather than comments. In this regard, the media can easily avoid the pitfall
of its comments being mistaken by the ordinary reasonable person as
statements of fact by making it clear that the statements concerned are
comments and not statements of facts, and by identifying the facts on which
the comments are based so as to ensure that there is no confusion on thereader’s part as to which portions of the statements are comments and
which portions are statements of facts. Of course, such measures (in cases
where they are taken) would not conclusively  denote whether the statements
in question are comments or statements of fact. These measures would,
however, serve as a strong indicator to the court of how the statements
concerned are likely to be understood ( ie, whether as comments or as
statements of fact) by the ordinary re asonable person. As pertinently noted
in Geoffrey Robertson & Andrew Nicol, Robertson & Nicol on Media Law
(Sweet & Maxwell, 4th Ed, 2002) at p 120:
The fair comment defence relates on ly to comment – to statements of
opinion and not to statements of fact. This is the most important, and most
difficult, distinction in the entire law of libel. … Writers can help to
characterise their criticisms as comment with phrases like ‘it seems to me’, ‘in
my judgment’, ‘in other words’, etc., although such devices will not always be
conclusive . … Where a defamatory remark is made baldy, without reference
t o  a n y  f a c t  f r o m  w h i c h  t h e  r e m a r k  c o u l d  b e  i n f e r r e d ,  i t  i s  n o t  l i k e l y  t o  b edefensible as comment, especially if it imputes dishonesty or dishonourable
conduct. [emphasis added; emphasis in original omitted]
148 In short, a person who wishes to  write anything about another person
that is prima facie  defamatory of the latter has the means to state clearly
whether what is being written is meant to be a comment or a statement ofpaginator.book  Page 121  Mond ay, January 4, 2010  12:22 PM

122 SINGAPORE LAW REPORTS [2010] 1 SLR
fact. If the writer fails to do so, there is no reason why he (and, likewise, the
publisher of the statement) should be given the benefit of the defence of fair
comment.
149 With regard to the defence of fair comment in the instant case, we are
unable to say that the Judge was wrong in finding (at [152] of the
Judgment) that, even if the Relevant Statements were comments, they were
not comments based on facts (see the third element of this defence as laid
down in Chen Cheng  ([139] supra ) at [33]). (Indeed, it appears to us that the
Relevant Statements also do not satisfy the fourth element of the defence of
fair comment in so far as they are not comments which a fair-minded
person could honestly make on the facts proved. F A Chua J noted in
Jeyaretnam JB  ([141] supra ) that, to satisfy this particular element, the
comments in question “ must not  contain imputations of corrupt  or
dishonourable  motives on the person whose conduct or work is criticised,
save in so far as such imputa tions are warranted by the facts ” [emphasis
added] (at [58]).) In the present case, the allegation made by the DisputedWords is that the Respondents are corrupt. Assuming ( contra  our decision
at [144] above) that this allegation is indeed a co mment, it then has to be
ascertained whether this comment is base d on facts. In this regard, it should
be stated at the outset that “it [is] unnecessary for all the facts which [form]
the basis of the comment to be referred to, so long as there [is] a sufficient
substratum of facts referred to or implied from the defamatory words” (seeJeyasegaram David  ([140] supra ) at [52]; see also Kemsley v Foot  [1952] AC
345 at 361).
150 In the court below, the Judge examined the whole series of alleged
facts raised by the Appellants in support of their claim that the Relevant
Statements were based on  facts (see the Judgment  at [146], where the facts
pleaded by the Appellants are set out in full; see also the Judge’s observationon those facts at [150] of the Judgme nt). The Judge reached the conclusion
that the Relevant Statements, even if they were comments, “were not
comments based on facts”  (see the Judgment at [152]). We agree with this
conclusion. The main supporting fact s pleaded by the Appellants related to
the NKF Saga, the numerous success ful libel suits brought by the
Respondents in the past, the allege d non-transparency of government
institutions such as the CPF Board and the GIC and the Government’s
control of huge pools of public mone y in these two institutions. These were
also the facts stated in the Article itse lf. To any ordinary reasonable person,
these facts without more can hardly be said to warrant the imputation that
the Respondents are corrupt.
151 The present case may be contrasted with Jeyasegaram David , where
the defence of fair comment succeeded. In that case, the defendant was
quoted in an article published in The Business Times  (“the BT article”) as
describing the plaintiff’s behaviour at an extraordinary general meeting
(“EGM”) of a company (“NatSteel”) as “playing to the gallery” [emphasis inpaginator.book  Page 122  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 123
original omitted] ( Jeyasegaram David  at [12]). The plaintiff sued the
defendant for defamation in respect of those words. This court found that
the defendant’s statement that the plaint iff was “playing to the gallery” was
a comment which was supported by fa cts as the plaintiff’s conduct and
antics at the EGM had been widely reported in the press. The court said(at [53]):
In this case, we found a sufficient fact ual basis for the [defendant’s] comment
from the sheer notoriety of the [plain tiff’s] behaviour throughout the entire
NatSteel saga . Although there was no express reference to the [plaintiff’s]
conduct at the EGM in the BT article, we noted that the pu blicity accorded to
the affair was unprecedented. Articl es updating readers on the latest
developments, including the rowdy EGM on 28 May 2003, appeared almost
daily in all the major newspapers in Singapore (including The Business
Times ). Contrary to the [plaintiff’s] submissions, we found ample evidence that
his antics at the EGM were widely reported and quoted . To our minds, on the
day the [defendant’s] remark was publis hed in the BT article, these facts
would have remained fresh in the mi nds of the investing public and the
ordinary reasonable reader of The Business Times . We were therefore satisfied
that there was a sufficient substratum of facts to form a basis for the[defendant’s] comment . [emphasis added]
152 Unlike the scenario in Jeyasegaram David , there were no supporting
facts in the present case relating to the allegation that the Respondents were
corrupt and accordingly unfit to hold office. We are therefore of the view
that the Judge was correct to reject the defence of fair comment.
Ground (g): The defence of derivative qualified privilege 
153 In respect of the defence of deri vative qualified privilege based on
CSJ’s right-of-reply privilege, the Ap pellants reiterated  before us their
argument in the court below, which the Judge had rejected. In essence, the
contention put forth by the Appellants was that they were entitled to claim
a derivative qualified privilege based on CSJ’s right-of-reply privilege ( ie,
the qualified privilege applicable to CSJ as  a result of his right to reply to the
alleged defamatory statements made against him by the Respondents). The
right to claim a derivative qualified privilege is recognised under Singapore
law (see Davies  ([140] supra ) at [90]; Oversea-Chinese Banking Corp Ltd v
Wright Norman  [1994] 3 SLR(R) 410 (“ OCBC ”) at [86]; Oei Hong Leong
([134] supra ) at [103]; and Evans on Defamation  ([26] supra ) at p 136). As
the High Court held in Davies  (at [90] and [92]):
There is no dispute that in law a person who has been publicly defamed is
entitled to reply to the defamation publicly, and such reply may be made
through the press and is privileged. This privilege extends also to protect a
newspaper which publishes the reply of the person defamed . …
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124 SINGAPORE LAW REPORTS [2010] 1 SLR
The protection of a priv ileged occasion … does not [however] extend to
statements which have no relevance to a reply to the attack or which are not
in any way appropriate to the occasion.
154 Gatley  ([27] supra ) explains the right-of-reply privilege as follows (at
para 14.48):
Reply to attack . … [A] person whose character or conduct has been attacked
is entitled to answer such attack, and any defamatory statements he may
make about the person who attacked him will be privileged, provided they are
published bona fide and are fairly relevant to the accusations made.
‘The law justifies a man in repelling a libellous charge by a denial or an
explanation. He has a qualified privil ege to answer the charge; and if he
does so in good faith, and what he publishes is fairly an answer, and ispublished for the purpose of repelling the charge, and not with malice,it is privileged, though it be false.’ [citing Brewer v Chase  80 NW 575
at 577 (Mich, 1899)]
‘The defendant would be  entitled to protect his reputation by a
proportionate response which was appr opriate both in terms of subject
matter and scale of publication. In order for a defendant to availh i m s e l f  o f  t h i s  f o r m  o f  p r i v i l e g e ,  t h e  r e s p o n s e  s h o u l d  n o t  g o  i n t o
irrelevant matters or, in particular, cross over into an attack on the
integrity of the claimant if it is not reasonably necessary for defendinghis own reputation .’ [citing Hamilton v Clifford  [2004] EWHC 1542
at [66]]
Mere retaliation, which cannot be describe d as an answer or explanation, is not
protected, but the defendant is not required to be diffident in protecting himself
and is allowed a considerable degree of latitude in this respect and the lawdoes not concern itself with niceties in such matters. …
155 The scope of the right-of-reply privilege is further elaborated in
Gatley  at para 14.64, as follows:
Answers to attacks .A  p e r s o n  r e s p o n d i n g  t o  a n  a t t a c k  u p o n  h i m  m u s t  n o t
make countercharges or unnecessary im putations on the private life of the
person who has attacked him wholly  unconnected with the attack and
irrelevant to his vindication. The privilege ‘extends only so far as to enable him
to repel the charges brought against him – not to bring fresh accusations
against his adversary.’  [citing Dwyer v Esmonde  (1878) 2 LR Ir 243 at 254]
…
‘ I f ,  f o r  e x a m p l e ,  A  s h o u l d  c h a r g e  B  w i t h  t h e f t ,  a  d e n i a l  b y  B  o f  t h e
charge would not warrant an action for damages by A however
vigorous or gross the language mi ght be in which B’s denial was
couched. But if B should go on to charge A with theft that would be
actionable, and it would not be protec ted or privileged to any extent onpaginator.book  Page 124  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 125
account of A’s previous attack .’ [citing Milne v Walker  (1898) 21 R 155
at 157]
156 In short, in the words of Lord Oaksey in Turner v Metro-Goldwyn-
Mayer Pictures, Ltd  [1950] 1 All ER 449 (“ Turner ”), the defendant loses the
protection afforded to him under the right-of-reply privilege if he “goes
beyond defence  and proceeds to offence ” [emphasis added] ( Turner  at 470;
see also OCBC  at [89], where this principle was endorsed by the High
Court). Lord Oaksey went on to say in Turner  (at 470–471):
There is, it seems to me, an analogy be tween the criminal law of self defence
and a man’s right to defend himself against written or verbal attacks. In both
cases he is entitled, if he can, to defend  himself effectively, and he only loses the
protection of the law if he goes beyond defence and proceeds to offence . That is
to say, the circumstances in which he defends himself, either by acts or by
words, negative the malice which the law draws from violent acts or
defamatory words. If you are attacked  with a deadly weapon you can defend
yourself with a deadly weapon or wi th any other weapon which may protect
your life. The law does not concern itself with niceties  in such matters. If you
are attacked by a prize fighter you are not bound to adhere to theQueensberry rules in your defence. [emphasis added]
157 The Appellants argued that, given the very serious accusations made
against CSJ by LHL on the occasion of the latter’s visit to New Zealand (as
reported in para 3 of the Article) and al so by LKY on previous occasions (as
reported in para 4 of the Article), it was “entirely proportionate for [CSJ] tomake the comments [which] he did, even  if they amounted to imputations
of corruption” [emphasis in original  omitted]. The Appellants further
argued that the Respondents were in fact accusing CSJ not only ofcorruption, but of much worse misconduct ( ie, lying and cheating), and,
thus, “[o]n a simple ‘ tit-for-tat ’ basis, [CSJ] was entitled to use equally
unflattering language” [e mphasis in original].
158 As the authorities which we re ferred to at [153]–[156] above show,
the right-of-reply privilege only enables the defendant to repel the charges
accusations against the plaintiff. In particular, the defendant may not “[go]
beyond defence and [proceed] to offence” ( per Lord Oaksey in Turner
at 470) by attacking the plaintiff’s integr ity if it is not reasonably necessary
for the defendant to do so for the purposes of defending his own reputation
(see Hamilton v Clifford  [2004] EWHC 1542 at [66] as well as Gatley  at
para 14.48). Thus, if a person (“Mr X” ) claims that a certain individual
(“Mr Y”) has stolen money from another, Mr Y can answer Mr X’s
allegation by denying it or even by  saying that Mr X is a liar (see Evans on
Defamation  ([26] supra ) at p 136). While Mr Y’s statement that Mr X is a
liar would ex facie  be defamatory, that stat ement would be privileged
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126 SINGAPORE LAW REPORTS [2010] 1 SLR
his own reputation and is clearly releva nt to refuting the original accusation
by Mr X ( Evans on Defamation  at p 136). However, if Mr Y responds by
saying that Mr X is a thief himself, Mr Y would have gone beyond defence
to offence and, accordingly, would no t be protected by the right-of-reply
privilege (see Gatley  at para 14.48, where it is stated that “[m]ere retaliation,
which cannot be described as an answer  or explanation, is not protected”;
see also the factual scenario in Davies  ([140] supra ) by way of illustration).
159 In the present case, assuming that CSJ was indeed exercising his right
of reply (which view we do not agree with  (see [160] below)), it is clear that,
in doing so, he had crossed the line. It was not open to him to reply to
LHL’s “[rant]” (see para 3 of the Article) against him or LKY’s allegationsagainst him by claiming that the Re spondents were themselves corrupt. To
say that LKY had “accumulated enough skeletons in his closet … [forwhich] his son … [would] have a price to pay” (see para 9 of the Article)and that LKY was “afraid” (para 9) th at those skeletons might emerge from
the closet through questioning duri ng parliamentary debates clearly
implied that LKY was guilty of unsp ecified wrongdoing that made him
unfit to hold office as Minister Mentor. In our view, this allegation exceeded
the latitude that the law grants to the defendant who is replying to
allegations made against him (see Oei Hong Leong  ([134] supra ) at [98]).
The law does not allow a free-for-all tit for tat, contrary to what the
Appellants advocated. The retaliatory attack by CSJ on the Respondents inalleging that they were corrupt was wh olly unnecessary for the purposes of
defending his (CSJ’s) own reputation.
160 The Respondents made a further ar gument to rebut the Appellants’
argument on the defence of derivative qualified privilege, namely, there wasabsolutely nothing in the Article to suggest that CSJ was exercising hisright-of-reply privilege to begin with. We accept this argu ment. In our view,
although the Article quoted the answers and/or remarks which CSJ gaveduring his interview with HR, none of  those answers and/or remarks could
be said to be refuting, denying or explaining any attack made by the
Respondents against CSJ. Save for the quote of CSJ’s response in para 9 ofthe Article, the rest of the statements in the other portions of the DisputedWords were, as we pointed out earlier (at [144] above), statements of facts
made by the Appellants themselves. Further, whatever was said of CSJ by
the Respondents was said a long time before the interview which led to theArticle. If CSJ had wanted to reply to  the Respondents’ attacks on him, he
could and should have done so at the time those attacks were made. In thisconnection, counsel for the Appellants  accepted as valid the proposition
that (using the terminology employed  at [158] above) Mr Y cannot wait for
an indefinite period after his characte r is allegedly attacked by Mr X before
he (Mr Y) exercises his right of reply vis-à-vis  Mr X. Indeed, we note that
the Article said at para 21 that CSJ “ [didn’t] dwell  on his personal
tribulations” [emphasis added]. This further reinforces our finding thatpaginator.book  Page 126  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 127
CSJ, in making the statements published in the Article, was not exercising
his right-of-reply privilege. It follows that there is no derivative qualifiedprivilege based on CSJ’s alleged righ t of reply which the Appellants can
invoke.
161 For the foregoing reasons, ground (g) of [23] above fails.162 It is pertinent to note that this was not a case where the Article merely
reported what CSJ had said in public , or where CSJ had written a reply in
response to an attack by the Respon dents on him and had then asked the
Appellants to publish his written reply. The Article was the result of an
interview of CSJ which was initiated by the Appellants  themselves, and not
by CSJ. Using again the terminology  employed at [158] above, suppose
Mr X says that Mr Y has stolen mo ney from another person and, in
response to a query from a newspaper reporter as to what he (Mr Y) thinks of
Mr X’s allegations , Mr Y says that Mr X is a liar: in such a scenario, it may
still be possible for the newspape r which publishes Mr Y’s response to
retain its derivative qualified privil ege even though it was the newspaper
itself which arranged for its reporter to interview Mr Y.
163 The above situation arose in the case of Loveday v Sun Newspapers Ltd
(1938) 59 CLR 503 (“ Loveday ”). There, the High Court of Australia, in
holding that a newspaper proprietor was entitled to rely on a derivative
qualified privilege, did not think that  it was material that the newspaper
proprietor had sought Mr Y’s reply to Mr X’s attack on Mr Y first (in fact,this factor did not appear to trouble the court at all). In Bass v TCN Channel
Nine Pty Ltd  (2003) 60 NSWLR 251 (“ Bass ”), where Loveday  was relied on,
the New South Wales Court of Appeal  held that derivative qualified
privilege was not as a matter of course lost to a publisher even if it was
found that it was the publisher whic h had instigated Mr X’s attack on Mr Y
in the first place; this factor could, however, go towards showing that thepublisher had been motivated by malice and had abused its derivative
qualified privilege.
164 Gatley , in citing the above two cases ( ie, Loveday  and Bass ), comments
at para 14.50 as follows:
The privilege of a person whose character or conduct has been attacked in the
public [p]ress to reply to such attacks extends to protect the newspaper whichpublishes his reply; and in the absence of proved malice neither will be heldliable in damages.
…
In the older cases the standard pattern was that A [ ie, Mr X in the example
outlined at [158] above] pu blished an attack on B [ ie, Mr Y in the example
mentioned at [158] above] in [a] ne wspaper … and B then responded in
kind. However, in [ Loveday ] ,  i t  w a s  h e l d  t o  m a k e  n o  d i f f e r e n c e  t h a t  t h e
newspaper sought B’s response first and published it along with A’s attack . That
situation is now commoner in the broa dcast media, where a programme on apaginator.book  Page 127  Mond ay, January 4, 2010  12:22 PM

128 SINGAPORE LAW REPORTS [2010] 1 SLR
controversial issue is likely to be prep ared over a period of time; indeed, in
such cases the role of the media organ has changed from being a mere conduit
for the transmission of the remarks of the two protagonists  and it may instigate
the confrontation by approaching the person who makes the initial attack. …
Nevertheless it has been held [that] the media organ retains its derivative
privilege in such cases. Inversion of the natural roles of ‘attacker’ and
‘respondent’, or manipulation of the co ntent of the programme so as to produce
a one-sided picture are ma tters which go to malice . …
165 In our opinion, the fact that the Appellants on their own accord
arranged for an interview with CSJ and then published the Article, which
was allegedly written based on the inte rview, is significant (although it is
not, in the light of the authorities di scussed at [163]–[164] above, fatal to
the Appellants’ attempt to rely on the defence of derivative qualifiedprivilege). For the reasons stated at [ 160] above, the Disputed Words could
not fairly or reasonably be said to  constitute a reply by CSJ to the
Respondents’ attack on his character (a s set out in paras 3–4 of the Article).
Although the Article quoted in para 9 a particular response by CSJ, the rest
of the statements in the other portions of the Disputed Words were (asmentioned at [144] and [160] above) st atements of fact s alleged by the
Appellants themselves. Notably, the Appellants raised and alluded to theNKF Saga at para 10 of the Article; ther e is nothing in the Article to suggest
that this topic was raised by CSJ himself. At the time of the interview, whichtook place approximately one year after the trial of the NKF libel suitcommenced, the NKF Saga could hardly be said to be novel or hot news,
except for the Appellants having resurfaced it. The association of the NKFand/or Durai with the Respondents as well as the further association of the
NKF libel suit with previous libel suits commenced by the Respondents
were, in our view, wholly unnecessary if the Article were, as counsel for the
Appellants claimed, only meant to be about democracy (or the lack of it) in
166 The Appellants also submitted that they were unaware of the
implications of the Disputed Words an d that, had they been aware of those
implications, they would not have pu blished the Disputed Words as they
were familiar with the policy which the Respondents had of suing persons
or publishers whom they considered had defamed them. In the light of thewords used in and the tone of the Article, we doubt if the Appellants canclaim that they were co mpletely unaware of the implications of the
Disputed Words and the serious imputations which they carried, especiallywhere the two rhetorical questions at the end of para 13 of the Article wasconcerned (as we noted at, inter alia , [5] above, one of these questions was
even given especial promin ence in that it was reproduced in enlarged font
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 129
167 Notwithstanding our foregoing observations at [165]–[166] above,
however, since the Respondents did not go so far in the present appeals asto argue that there was malice on the part of the Appellants which would
defeat the defence of derivative qualifie d privilege, it is not necessary for us
to consider whether there was indeed any ulterior or collateral intention onthe part of the Appellants. It would suffice for us here to reiterate the point
made earlier, namely, that (using th e terminology employed at [158] above)
the present case was not a typical case of a publisher seeking to rely on aderivative qualified privilege based on  the right of Mr Y to reply to Mr X’s
attack on him (Mr Y). In other word s, contrary to what the Appellants
would have this court believe, the scenario before us was not one where thepublisher merely published the repl y by Mr Y to Mr X’s attack on him.
168 For the above reasons, we agree with the Judge that, on the facts of the
present appeals, the Appellants are not entitled to rely on any derivativequalified privilege based on CSJ’s righ t-of-reply privilege. We now turn to
consider the Appellants’ last ground of appeal ( ie, ground (h) of [23]above).
Ground (h): The defence of qualified privilege 
Outline of the Appellants’ claim of qualified privilege
169 The last ground of appeal advanced by the Appellants is that they are
entitled to rely on the Reynolds  privilege and/or its offshoot, the neutral
reportage defence. We should point out that the application of thisprivilege, after it was laid down in Reynolds (HL)  ([20] supra ), was
subsequently clarified (likewis e by the House of Lords) in Jameel
(Mohammed) v Wall Street Journal Europe Sprl  [2007] 1 AC 359 (“ Jameel ”).
In using the expression “the Reynolds  privilege” in this  judgment, we are
referring to the Reynolds  privilege as so clarified.
170 The Appellants’ case in respect of qualified privilege in the court
below consisted essentially of three mu tually exclusive propositions, all of
which were rejected by the Judge (see the Judgment at [165]–[177] and
[219]–[227]). The Appellants have re fined these propositions on appeal
and, to the best of our understanding, they are as follows:
(a) First, the Reynolds  privilege is and has always been part of the
common law of Singapore, and thus  affords the Appellants a defence
in the present case.
(b) Second, if the Reynolds  privilege is not currently part of our
common law, this court should declare it to be such; on this basis, the
Appellants have a defence to the Defamation Suits.
(c) Third, if the Reynolds  privilege is not currently part of the
common law of Singapore and if this  court also decides not to adopt
this privilege as part of our law, the Appellants are nonetheless
entitled to rely on the traditional qualified privilege defence based onpaginator.book  Page 129  Mond ay, January 4, 2010  12:22 PM

130 SINGAPORE LAW REPORTS [2010] 1 SLR
“special facts”, ie, the defence of qualified privilege as set out by this
court in Aaron  ([20] supra ) at [81]–[87]. In the present case, the
Appellants argued, there were special facts such that there was “an
interest in the public strong enough  to give rise generally to a duty to
communicate in the press” ( Aaron  at [81]).
171 The last of these propositions ( ie, the “special facts” argument) can be
disposed of quickly. This argument was not part of the Appellants’ pleadedcase, and was instead belatedly raised in the written subm issions which the
Appellants filed after the hearing of the present appeals. The “special facts”
relied on by the Appellants concerned pr imarily: (a) the public standing of,
respectively, HR, the Respondents and CSJ; (b) the role of FEER in the
region; and (c) the importance of refo rming libel law in Singapore. In our
view, these matters do not fall within the “special facts” which this court
had in mind in Aaron  at [81]. An example of such special facts would be
(per Stephenson LJ in Blackshaw v Lord  [1984] QB 1 (“ Blackshaw ”) at 27):
… [an] extreme [case] where the urgency  of communicating a warning is so
great, or the source of the information so reliable, that publication ofsuspicion or speculation is justified; fo r example, where there is danger to the
public from a suspected terrorist or th e distribution of contaminated food or
drugs … [emphasis added]
Taking Stephenson LJ’s example as a guide, the Appellants’ case must fail.
In the present case, there was no urgency to publish the Article. The NKF
Saga (which featured prominently in the Article) was not new.Furthermore, the Appellants had more than sufficient time to check the
accuracy of the allegations contained in  the Article before publishing it in
FEER, which is a monthly journal.
172 Turning to the first two propositio ns set out at [170] above (which we
shall hereafter refer to as “the First Proposition” and “the Second
Proposition” respectively),  before we consider their merits, we shall first
examine briefly the development of the Reynolds  privilege as well as its
reception or rejection (as the ca se may be) in other common law
jurisdictions. Such a study will give us a better appreciation and
understanding of the rationale behind this privilege, which will in turnassist us in deciding whether the privil ege is part of our common law, and, if
not, whether it should be adopted as part of Singapore law.
173 As an aside, we should mention that the First Proposition was rejected
by the Judge on the ground that the Appellants had “pre-determined what
the common law of defamation in Si ngapore [was] or should be and then
argued that only Parliament [could ] abate such law” (see the Judgment
at [170]). In his view, “[i]t [was] for the courts to say what the common law
[was] or should be … [and] [i]t [was] up to Parliament to abate or expand
that common law” (at [170] ). Although the Judge rejected the First
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 131
on its merits, and held that this privileg e as well as the privilege laid down in
the Australian case of Lange v Australian Broadcasting Corporation  (1997)
145 ALR 96 (“ Lange v ABC ”) and that laid down by the New Zealand Court
of Appeal (“the New Zealand CA”) in Lange v Atkinson  [1998] 3 NZLR 424
(“Lange v Atkinson (CA) (No 1) ”) were not applicable in Singapore as each
of them was based on political and social considerations different from
those in Singapore. He also referred to Belinda Ang J’s decision in Lee Hsien
Loong (HC)  ([32] supra ) that the Reynolds  privilege (among other models of
qualified privilege) was inconsistent with Singapore’s defamation law, and
noted that that decision had been “implicitly endorsed” (see the Judgment
at [219]) by this court in Lee Hsien Loong (CA)  ([32] supra ).
The history of the Reynolds  privilege
The defence of qualif ied privilege before Reynolds (HL)
174 The central issue in Reynolds (HL)  (and all the relevant cases in the
different jurisdictions where that decision has been considered) is how to
strike the appropriate balance betwee n two competing interests or rights,
viz, freedom of speech and protection of reputation. The balance that was
struck between these two competing interests prior to Reynolds (HL)  was
quite different from the balance struck post- Reynolds (HL) . In short,
Reynolds (HL)  changed the law on qualified privilege in England.
175 In Reynolds (HL) , Lord Nicholls of Birkenhead stated that
“[h]istorically the common law … set much store by protection of
reputation” (at 192), bu t the common law also “long recognised the
‘chilling’ effect of this rigorous, re putation protective principle” (at 192).
The common law thus provided except ions where “[i]n the wider public
interest, protection of reputation must … give way to a higher priority” (seeReynolds (HL)  at 193). These exceptions are reflected in the defences of
justification, fair comment and qualified privilege.
176 In relation to the last-mentioned defence, Lord Nicholls outlined the
development and the juridical basis of  the traditional qualified privilege
defence as follows ( Reynolds (HL)  at 193–195):
[T]here are circumstances, in th e  f a m o u s  w o r d s  o f  P a r k eB  i n  Toogood v
Spyring  (1834) 1 CM & R 181, 193, when  the ‘common convenience and
welfare of society’ call for frank communication on questions of fact. …
There are occasions when the person to whom a statement is made has a
special interest in learning the honestly  held views of another person, even if
those views are defamatory of someone el se and cannot be proved to be true.
When the interest is of sufficient import ance to outweigh the need to protect
reputation, the occasion is  regarded as privileged.
Sometimes, the need for uninhibited expr ession is of such a high order that
the occasion attracts absolute privilege,  as with statements made by judges or
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132 SINGAPORE LAW REPORTS [2010] 1 SLR
the privilege is qualified in that it can be defeated if the plaintiff proves the
defendant was actuated by malice.
…Over the years the courts have held that many common form situations are
privileged. Classic instances are em ployment references, and complaints
made or information given to the police or appropriate authorities regarding
suspected crimes. The courts have al ways emphasised th at the categories
established by the authorities are not exhaustive. The list is not closed . The
established categories are no more  than applications, in particular
circumstances, of the underlyi ng principle of public policy . The underlying
principle is conventionally stated in wo rds to the effect that there must exist
between the maker of the statement and th e recipient some duty or interest in
the making of the communication. Lord Atkinson’s dictum, in Adam v Ward
[1917] AC 309, 334, is much quoted:
a privileged occasion is … an occasion where the person who makes a
communication has an interest or a duty, legal, social, or moral, to make
it to the person to whom it is made, and the person to whom it is so madehas a corresponding interest or duty to receive it . This reciprocity is
essential.
The requirement that both  the maker of the statement and the recipient must
have an interest or duty draws attentio n to the need to have regard to the
position of both parties when deciding  whether an occasion is privileged. But
this should not be allowed to obscure the rationale of the underlying public
interest on which privilege is founded. The essence of this defence lies in the
law’s recognition of the need, in the publ ic interest, for a pa rticular recipient to
receive frank and uninhibited communic ation of particular  information from
a particular source. That is the end [which] the law is concerned to attain . The
protection afforded to the maker of … the statement is the means by which
the law seeks to achieve that end. Thus the court has to assess whether, in the
public interest, the publication should be protected in the absence of malice.
In determining whether an occasion is regarded as privileged the court has
regard to all th e circumstances : see, for example, the explicit statement of
Lord Buckmaster LC in London Association for Protection of Trade v
Greenlands Ltd  [1916] 2 AC 15, 23 (‘every circ umstance associ ated with the
origin and publication of the defamatory matter’). And circumstances must be
viewed with today’s eyes. The circumstances in which the public interestrequires a communication to be protected in the absence of malice depend upon
current social conditions . The requirements at the close of the twentieth
century may not be the same as those of  earlier centuries or earlier decades of
this century.
177 A helpful summary of the development of the traditional qualified
privilege defence can also be found in  the Privy Council’s decision in the
Jamaican case of Seaga v Harper  [2009] 1 AC 1 (“ Seaga ”) at [5] ( per
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 133
The defence of qualified privilege, like so many other doctrines of the
common law, developed over a period  of time, commencing in the 19th
century, and is still in th e process of development. The history is conveniently
summarised in the judgment of Dunn LJ in Blackshaw v Lord  [1984] QB 1,
33–34 … By the time of the decision of the [English] Court of Appeal in
Purcell v Sowler  (1877) 2 CPD 215 it was assuming its recognisable modern
form. It is founded upon the need to perm it the making of statements where
there is a duty, legal, social or moral, or sufficient interest on the part of the
maker to communicate them to recipients who have a corresponding interest orduty to receive them, even though they may be defamatory, so long as they are
made without malice, that is to say, honestly and without any indirect or
improper motive . It is the occasion on which the statement is made which
carries the privilege, and under the traditional common law doctrine there
must be a reciprocity of duty and interest : Adam v Ward  [1917] AC 309, 334
per Lord Atkinson. The development of the law is accurately and
conveniently expressed in Duncan & Neill on Defamation , 2nd ed (1983),
para 14.04:
From the broad general principle that certain communications should
be protected by qualified privilege ‘i n the general interest of society’,
the courts have developed the conc ept that there must exist between
the publisher and the publishee some duty or interest in the making of
the communication.
178 From the passages quoted at [176]–[ 177] above, it can be seen that
whether or not the defendant in a defamation action can rely on thetraditional qualified privilege defence depends on ( per Lord Carswell in
Seaga  at [5]):
… [whether] there is a duty, legal, social or moral, or sufficient interest on the
part of the [defendant] to communicat e [the offending wo rds] to recipients
who have a corresponding interest or duty to receive them, even though they
may be defamatory …
For ease of reference, we shall hereafter call this test the “duty-interest test”.
179 The justification for the courts’ acceptance of the defence of qualified
privilege (in its traditional form) in defamation law is, as Lord Nichollsnoted in Reynolds (HL)  at 193 (citing Parke B in Toogood v Spyring  (1834)
1 C M & R 181; 149 ER 1044 (“ Toogood ”) at 193; 1050), “the ‘common
convenience and welfare of society’”. What the common convenience andwelfare of society require depends on the political, social and cultural values
of the day. Society develops politica lly, socially and culturally, and the
common law develops in tandem with such changes within the permissiblelimits of its own structure of fund amental norms and principles. For this
reason, “[t]he established categories [of qualified privilege] are no more
than applications, in particular circum stances, of the un derlying principle
of public policy” ( per Lord Nicholls in Reynolds (HL)  at 194). Furthermore,
as Lord Carswell pointed out in Seaga  (at [5]), “[t]he defence of qualifiedpaginator.book  Page 133  Mond ay, January 4, 2010  12:22 PM

134 SINGAPORE LAW REPORTS [2010] 1 SLR
privilege … is still in the process of de velopment”. The applicable policy at a
particular stage of society’s development may not be the same as that atanother stage. In determining whether an occasion is to be regarded as
privileged, the court is to consider all the circumstances, and
“circumstances must be viewed with today’s  eyes” [emphasis added] (see
Reynolds (HL)  at 195). Whether or not the defence of qualified privilege is
available in a particular case is thus essentially a question of policy to be
determined by the court in accordance with any constitutional or legislativeprovision that may be relevant ( eg, the European Convention and the
Human Rights Act 1998 (c 42) (UK)  (“the HRA”) where England is
concerned, and the Constitution of the Republic of Singapore (1999 Rev
Ed) (“the Singapore Constituti on”) in our local context).
180 Historically, where the media sought to invoke the traditional
qualified privilege defence, the duty-interest test was applied with equal
strictness (as compared to cases where a non-media defendant was
involved). This can be seen  from the leading case of Blackshaw  ([171]
supra ), where the defendants (a journalist and a newspaper publisher)
pleaded that qualified privilege attach ed to the publication of the article
complained of as that article concerned “fair information on a matter ofpublic interest” ( Blackshaw  at 33). The English CA rejected this argument.
Dunn LJ stated (at 33–36):
… I do not think there is any defence of ‘fair information on a matter of
public interest’ in defamation proceedings. …
…
[A] review of the authorities shows that , save where the publication is of a
report which falls into one of the recognised privileged categories, the courtm u s t  l o o k  a t  t h e  c i r c u m s t a n c e s  o f  t h e  c a s e  b e f o r e  i t  i n  o r d e r  t o  a s c e r t a i n
whether the occasion of the publication was privileged. It is not enough that
the publication should be of general inte rest to the public. The public must have
a legitimate interest in receiving the information contained in it, and there
must be a correlative duty in the publ isher to publish, which depends also on
the status of the inform ation which he receives, at any rate where the
information is being made public for the first time . Different considerations
may arise in cases … where the matter has already been made public, and the
publication in question is by way of de fence to a public charge, or correction
of a mistake made in a previous publication.
As Cantley J. pointed out in London Artists Ltd . v. Littler  [1968] 1 W.L.R. 607,
if the law were otherwise, and if the wider principle on which Pearson J.decided [ Webb v Times Publishing Co Ltd  [1960] 2 QB 535] were applicable,
then there would be no need for a plea  of fair comment, and anyone could
publish any untrue defamatory information provided only that he honestlybelieved it, and honestly believed that the public had an interest in receiving
it.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 135
181 Similarly, Stephenson LJ stated ( Blackshaw  at 26):
No privilege attaches yet to a statement on a matter of public interest believed
by the publisher to be true in relati on to which he has exercised reasonable
care. … “Fair information on a matter of public interest” is not enough without
a duty to publish [that information]  … There must be a duty to publish to the
public at large and an interest in the pu blic at large to receive the publication ;
and a section of the public is not enough.
The subject matter must be of public in terest; its publication must be in the
public interest. [The] nature of the matter published and its source and theposition or status of the publisher di stributing the inform ation must be such
as to create the duty  to publish the information to the intended recipients …
182 The overall effect of the decision in Blackshaw  was that, as
Lord Nicholls put it in Reynolds (HL)  at 196:
[T]he [English] Court of Appeal rejected  a claim to generic protection for a
w i d e l y  s t a t e d  c a t e g o r y :  ‘ f a i r  i n f o r m a t i o n  o n  a  m a t t e r  o f  p u b l i c  i n t e r e s t ’ .  A
claim to privilege must be more precis ely focused. In order to be privileged
publication must be in the public inte rest. Whether a publication is in the
public interest or, in the conventional phraseology, whether there is a duty topublish to the intended recipients  … depends upon the circumstances,
including the nature of the matter published and its source or status.
183 Thus, prior to the decision in Reynolds (HL) , the English courts’
approach to the traditional qualified privilege defence, as applied to the
media , was as follows (see Gatley  ([27] supra ) at para 14.1):
[U]ntil the very end of the twentieth century there was otherwise in England
(and, indeed, in the rest of the Common wealth) a strong reluctance to extend
the protection of qualified privilege to publications in the news media. The
fundamental principle was that a statement was protected by privilege only ifthe publication of it was to persons who had a proper interest or duty in thematter with which it was concerned,  and the public as a whole was not
generally regarded as having a relevant interest or duty . The media defendant
(or other defendant who caused his statement to be published in that way) was
i n  n o  d i f f e r e n t  p o s i t i o n  f r o m  a n y o n e  e l s e  a n d  h a d  t o  s h o w  t h e  r e l e v a n t
reciprocity of duty and interest . Such a duty only arose [ per Cantley J in
London Artists Ltd v Littler Grade Organisation Ltd  [1968] 1 WLR 607
at 619]:
where it is in the interests of the public that the publication should be
made and will not arise simply beca use the information appears to be
of legitimate public interest.
A privilege for publication to the world at large was, in English law, the
exception rather than the rule, even if the subject-matter was politics or
public affairs. Nor was there any defe nce of ‘fair information upon a matterpaginator.book  Page 135  Mond ay, January 4, 2010  12:22 PM

136 SINGAPORE LAW REPORTS [2010] 1 SLR
of public interest,’ still less of ‘fair attributed report’ of what someone else
ha[d] stated or of ‘neutral reportage’.
184 The pre- Reynolds (HL)  position – viz, that the media had to satisfy the
duty-interest test before it could invo ke the traditional qualified privilege
defence – meant that the English co urts effectively gave more weight to
protection of reputation than the media’s role in communicating matters of
public interest to the public. As will be seen later, the decision in
Reynolds (HL)  changed that position by libera lising the defence of qualified
privilege for ( inter alia ) the media under certain conditions. Although the
English courts have yet to reach a consensus on whether or not the Reynolds
privilege is an entirely new form of qualified privilege (or, to paraphrase
Baroness Hale of Richmond’s words in Jameel  ([169] supra ) at [146], a new
jurisprudential creature), they are in agreement that this privilege is of availto the defendant only if the publication of the defamatory material in
question satisfies the test of “responsible journalism” laid down by
Lord Nicholls in Reynolds (HL)  at 204–205 (“the ‘responsible journalism’
test”).
185 A final point to make is that, as fa r as the legal position in Singapore is
concerned, the courts have hitherto accepted only the traditional qualified
privilege defence for media defend ants. As this court stated in Aaron  ([20]
supra ) at [81] and [83] (citing, inter alia , Blackshaw ):
Generally, qualified privilege is availabl e  t o  n e w s p a p e r s  a s  m u c h  a s  t o  a n y
other person. Privilege for publication in  the press of information of general
public interest is limited to cases wh ere the publisher has a legal, social or
moral duty to communicate. The law does not recognise an interest in the
p u b l i c  s t r o n g  e n o u g h  t o  g i v e  r i s e  g e n e r a l l y  t o  a  d u t y  t o  c o m m u n i c a t e  i n  t h e
press; such a duty has been held to exist on special facts, and there is no general
‘media privilege at common law’ . …
…Along with the duty to communicate is  a corresponding interest to receive
such information on the part of the public. …
In Chen Cheng  ([139] supra ), this court, commenting on the above
quotation from Aaron , acknowledged that “it [was] rather unclear what
‘ s p e c i a l  f a c t s ’  m u s t  b e  s h o w n  i n  order for a newspaper publication to
succeed on the defence of qualified privilege” (see Chen Cheng  at [63]). This
court nonetheless emphasised that “the requisite standard or test for suchspecial facts [was] an onerous one” (at [63]), and would most likely be
satisfied only in “extreme cases wh ere the urgency of communicating a
warning [was] so great, or the source of the information so reliable, thatpublication of a suspicion or speculation [was] justified” (at [63], citing
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 137
The rise of the Reynolds  privilege in England 
(1) The decision in Reynolds (HL)
186 In Reynolds (HL) , the plaintiff (“Mr Reynolds”), a former Prime
Minister of Ireland sued the defendants ( ie, Times Newspapers Ltd, its Irish
editor and two journalists) in respect of an article in The Sunday Times
(“the Sunday Times  article”) concerning the circumstances of his
resignation as the leader of his coal ition government. Mr Reynolds claimed
that the offending words bore the me aning that he had deliberately and
dishonestly misled the Dáil Éireann (“the Dáil”) ( viz, the Irish House of
Representatives) and his cabinet colleagues. The defendants pleaded thatthere was a defence of qualified privilege derived from the subject matter
per se  of the Sunday Times  article – namely, “political matters” (see
Reynolds v Times Newspapers Ltd  [1998] 3 WLR 862 (“ Reynolds (CA) ”)
at 893) – and, thus, malice aside, publ ication of “political matters” (see
Reynolds (CA)  at 893) should be privileged, re gardless of the status and the
source of the material published and the circumstances of publication.
187 The English CA held that the news media had a duty to inform the
public about and engage in public discussion of “matters of public interest
to the community” (see Reynolds (CA)  at 909), and that, in modern times,
the duty-interest test should be more easily satisfied, given that “thecommon convenience and welfare of a modern plural democracy … [were]
best served by an ample flow of info rmation to the public concerning, and
by vigorous public discussion of, matters of public interest to thecommunity” (at 909). The English CA di d not, however, go so far as to
accept the defendants’ submission that “political matters” (see
Reynolds (CA)  at 893) or “political discussion” (at 893), which we shall
hereafter refer to as “p olitical speech” generica lly, constituted a separate
subject matter category of qualified privilege; ie, the English CA did not
agree that qualified privilege would at tach to the publication of defamatory
political speech regardless of the circumstances , so long as there was no
malice on the defendant’s part. The cour t further held that, in applying the
English common law of qualified privileg e, there was, in addition to the
duty-interest test, a “circumstantial test” (see Reynolds (CA)  at 899); ie, the
defendant had to show that “the nature, status and source of the material[published] … and the circumstances of the publication … [were] such that
the publication should in the public interest be protected in the absence of
proof of express malice” (at 899).
188 Applying these two tests to the facts of Reynolds (CA) , the English CA
held that the circumstances in whic h Mr Reynolds’s government fell from
power were “matters of undoubted public interest to the people of Great
Britain” (see Reynolds (CA)  at 911). Thus, the duty-interest test was
satisfied as “the defendants had a duty to inform the public of th[o]se
matters and the public had a corresponding interest to receive thatpaginator.book  Page 137  Mond ay, January 4, 2010  12:22 PM

138 SINGAPORE LAW REPORTS [2010] 1 SLR
information” (at 911). However, the de fence of qualified privilege did not
apply to the Sunday Times  article as the defendants failed to satisfy the
circumstantial test (see Reynolds (CA)  at 911–912).
189 On appeal, the House of Lords upheld the English CA’s view that the
press had a duty to inform the public about matters of public interest andthe public had a corresponding interest  to receive such information. Like
the English CA, the law lords also unanimously rejected political speech as anew subject matter category of qualified privilege. In other words, qualified
privilege would not attach to the publication of a defamatory article simply
because the article concerned political speech. Instead, the article must still
pertain to information of public interest which the press had a duty topublish and the public, an interest to receive (in short, information which
the public had the right to know of).
190 Lord Nicholls (who delivered the judgment of the majority in
Reynolds (HL) ) said (at 204):
[T]he established common law approach  to misstatements of fact remains
essentially sound. The common law should not develop ‘political information’
as a new ‘subject matter’ category of qualified privilege, whereby the
publication of all such information would attract qualified privilege, whatever
the circumstances . That would not provide adequate protection for
reputation. Moreover, it would be un sound in principle to distinguish
political discussion from  discussion of other matters of serious public
concern. The elasticity of the … common law principle enables interference
with freedom of speech to be confined to what is necessary in the circumstances
of the case . This elasticity enables the court to give appropriate weight, in
today’s conditions, to the importance of freedom of expression by the media
on all matters of public concern. [emphasis added]
Two points in this passage should be noted. The first is that, in using the
expression “freedom of speech” (a t 204), Lord Nicholls was referring to
freedom of speech under Art 10 of the E uropean Convention as well as the
HRA (the latter was intended to give effect to the rights set out in theEuropean Convention and, at the time Reynolds (HL)  was decided, was
shortly to come into force). The second is that each claim of qualifiedprivilege by the media must be decide d based on “the circumstances of the
case” (at 204).
191 Lord Nicholls stated that, to determine whether the Reynolds  privilege
applied in a particular case, the court should apply the “responsiblejournalism” test; if the publication of the defamatory material in questionpassed this test, qualified privilege would attach to that occasion ofp u b l i c a t i o n .  L o r dN i c h o l l s  a l s o  l a i d  d o w n  a  n o n - e x h a u s t i v e  l i s t  o f  t e n
factors which the court should cons ider in applying the “responsible
journalism” test (referred to hereafter as “the Reynolds  factors” collectively
and as a “ Reynolds  factor” individually). His Lo rdship was of the view that,paginator.book  Page 138  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 139
by assessing the conduct of the media based on these ten factors (see
Reynolds (HL)  at 202):
The common law does not seek to set a higher standard than that of responsible
journalism, a standard the media [itself] espouse[s] . An incursion into press
freedom which goes no further than this would not seem to be excessive or
disproportionate. The investigative jo urnalist has adequate protection.
192 The Reynolds  factors were set out by Lord Nicholls as follows (at 205):
Depending on the circumstances, the matters to be taken into account
include the following. The comments are illustrative  only. 1. The seriousness
of the allegation. The more serious the charge, the more the public ismisinformed and the individual harmed, if the allegation is not true. 2. The
nature of the information, and the exte nt to which the subject matter is a
matter of public concern . 3. The source of the info rmation. Some informants
have no direct knowledge of the events. Some have their own axes to grind, or
are being paid for their stories. 4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the
subject of an investigation which commands respect. 6. The urgency of thematter. News is often a perishable commodity. 7. Whether comment was
sought from the plaintiff. He may have information [that] others do not
possess or have not disclosed. An approa ch to the plaintiff will not always be
necessary. 8. Whether the article containe d the gist of the plaintiff’s side of
the story. 9. The tone of the article. A newspaper can raise queries or call for
an investigation. It need not adopt a llegations as statements of fact. 10. The
circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other
relevant factors will vary from case to case . Any disputes of primary fact will
be a matter for the jury, if there is one. The decision on whether, having
regard to the admitted or proved facts, the publication [is] subject to qualified
privilege is a matter for the judge. This  is the established practice and seems
sound. A balancing operation is better  carried out by a judge in a reasoned
judgment than by a jury. Over time, a valuable corpus of case law will be
built up.
193 Applying the Reynolds  factors to the facts of Reynolds (HL)  itself, the
House of Lords held (by a majority of  3:2) that the publication of the
Sunday Times  article was not protected by qualified privilege. A pivotal
consideration in the majority’s decision was the fact that the defendants, in
their “hard-hitting article” (see Reynolds (HL)  at 206) which made serious
allegations against Mr Reynolds, made no mention at all of the latter’sexplanation to the Dáil. As Lo rd Nicholls explained (at 206):
A most telling criticism of the article  [ie, the Sunday Times  article] is the failure
to mention Mr Reynolds’s own explanation to the Dáil . Mr Ruddock [one of
the defendants in Reynolds (HL) ] omitted this from the article because he
rejected Mr Reynolds’s version of the events and concluded that Mr Reynoldspaginator.book  Page 139  Mond ay, January 4, 2010  12:22 PM

140 SINGAPORE LAW REPORTS [2010] 1 SLR
had been deliberately misleading. It goes without saying that a journalist is
entitled and bound to reach his ow n conclusions and to express them
honestly and fearlessly. He is entitled to disbelieve and refute explanationsgiven. But this cannot be a good reason for omitting, from a hard-hitting
article making serious allegations against a named individual, all mention ofthat person’s own explanation . Particularly so, when the press offices had told
Mr Ruddock that Mr Reynolds was not giving interviews but would be sayingall he had to say in the Dáil. His statem ent in the Dáil was his answer to the
allegations. An article omitting all refe rence to this statement could not be a
fair and accurate report of [the] proc eedings in the Dáil. Such an article
would be misleading as a report. This article is not defended as a report, but it
was misleading nonethele ss. By omitting Mr Reynolds’s explanation English
readers were left to suppose that, so far, Mr Reynolds had offered no
explanation. Further, it is elementary  fairness that, in the normal course, a
serious charge should be accompanied by the gist of any explanation alreadygiven. An article which fails to do so faces an uphill task in claiming privilege if
the allegation proves to be false and the unreported explan ation proves to be
true.
Was the information in the ‘Sunday Ti mes’ article information [which] the
public was entitled to know? The subj ect matter was undoubtedly of public
concern in this country. However, these serious allegations by the newspaper,presented as statements of fact but shorn of all mention of Mr Reynolds’sconsidered explanation, were not inform ation [which] the public had a right to
know . I agree with the [English] Court of Appeal [that] this was not a
publication which should in the public interest be protected by privilege in
the absence of proof of malice.
194 It should be noted that, although Lord Nicholls acknowledged that
the subject matter of the Sunday Times  article was “undoubtedly of public
concern in [England]” (at 206), he ul timately held that the subject matter
was not information which the public had a right to know about because
the Sunday Times  article was incomplete  (or even partial) in failing to
include Mr Reynolds’s explanation to the Dáil. In other words, his Lordshipeffectively held that the public had an  interest in knowing both the truth of
the allegations concerning Mr Reynolds as well as the fact that Mr Reynolds
had provided an explanation to the Dáil, which fact the defendants failed tocommunicate to the public. As will be seen (at, inter alia , [202]–[203]
below), the “responsible journalism” test looks not only at the efforts made
to investigate properly and objectivel y the information published, but also
at whether an opportunity was afforded to the plaintiff to tell his side of thestory to the public in relation to the offensive allegations that the defendantintended to publish of him.
195 It should also be noted that Lord Nicholls (with whom the other law
lords in Reynolds (HL)  concurred) disagreed with the English CA’s stance
that a separate circumstantial test had to be satisfied in addition to the duty-paginator.book  Page 140  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 141
interest test before the defence of qualified privilege could be invoked.
At 197 of Reynolds (HL) , Lord Nicholls said:
In its valuable and forward-looking anal ysis of the common law the [English]
Court of Appeal in the present case highlighted that in deciding whether an
occasion is privileged the court consid ers, among other matters, the nature,
status and source of the material published and the circumstances of the
publication. In stressing the importance of th ese particular factors, the court
treated them as matters going to a question (‘the circumstantial test’) separatefrom, and, additional to, the conventional duty-interest questions: see
[Reynolds (CA)  ([186] supra ) at] 899. With all respect to the [English] Court
of Appeal, this formulation of three questions gives rise to conceptual andpractical difficulties and is better avoided. There is no separate or additional
question. These factors are to be taken into account in determining whether the
duty-interest test is satisfied or, as I would prefer to say in a simpler and moredirect way, whether the public was entitl ed to know the particular information .
The duty-interest test, or the right to  know test, cannot be carried out in
isolation from these factors and without regard to them. A claim to privilege
stands or falls according to whether the claim passes or fails this test. There is
no further requirement . [emphasis added]
196 As the decision in Reynolds (HL)  marked a significant departure from
the traditional qualified privilege de fence, which had stood for more than
100 years, and given that Blackshaw  ([171] supra ), which affirmed the
traditional qualified privilege de fence where media defendants were
concerned, was decided barely 16 year s earlier, it is essential that we
understand fully why the change came  about. Lord Nicholls explained in
Reynolds (HL)  at 200:
My starting point is freedom of expr ession. … Freedom of expression will
shortly be buttressed by statutory re quirements. Under section 12 of the
[HRA] …, [which is] expected to come into force in October 2000, the court
is required, in relevant cases, to have particular regard to the importance ofthe right to freedom of expression. The common law is to be developed and
applied in a manner consistent with article 10 of the European Convention  …
and the court must take into accoun t relevant decisions of the European
Court of Human Rights ([see] sections 6 and 2 [of the HRA]). To be justified,
any curtailment of freedom of expression must be convincingly established by a
compelling countervailing consideration, and the means employed must beproportionate to the end sought to be achieved . [emphasis added]
197 Similarly, Lord Steyn said (see Reynolds (HL)  at 207–208):
It is common ground that in considering the issues before the House, and the
development of English law, the House can and should act on the reality that
the [HRA] … will soon be in force.
The new landscape is of great importance inasmuch as it provides the
taxonomy against which the question before the House must be considered.
The starting point is now the right of freedom of expression, a right based on aconstitutional or higher legal order foundation . Exceptions to freedom of
expression must be justified as bein g necessary in a democracy. In otherpaginator.book  Page 141  Mond ay, January 4, 2010  12:22 PM

142 SINGAPORE LAW REPORTS [2010] 1 SLR
words, freedom of expression is the rule and regulation of speech is the
exception requiring justification . The existence and width of any exception
can only be justified if it is underpinned by a pressing social need. These arefundamental principles go verning the balance to be  struck between freedom
of expression and defamation.
198 These two passages make it clear that the decision in Reynolds (HL)
was based on the European Convention (specifically, Art 10 thereof) and
the HRA (specifically, s 12 thereof). Article 10 of the European Conventionstates:
Article 10 – Freedom of expression
1. Everyone has the right to freedo m of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers.
This article shall not prevent Stat es from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or the rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
As for s 12 of the HRA, it provides as follows:
Freedom of expression
(1) This section applies if a court is considering whether to grant any relief
which, if granted, might affect the exercise of the Convention right to
freedom of expression.
…( 4 ) T h e  c o u r t  m u s t  h a v e  p a r t i c u l a r  r e g a r d  t o  t h e  i m p o r t a n c e  o f  t h e
Convention right to freedom of expre ssion and, where the proceedings relate
to material which the respondent claims , or which appears to the court, to be
journalistic, literary or artistic mate rial (or to conduct connected with such
material), to —
(a) the extent to which —
(i) the material has, or is about to, become available to the
public; or
(ii) it is, or would be, in the public interest for the material to
be published;
(b) any relevant privacy code.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 143
199 Together, Art 10 of the European Convention and s 12 of the HRA
elevated the common law right of free speech to “ a right based on a
constitutional or higher legal order foundation ” [emphasis added] ( per
Lord Steyn in Reynolds (HL)  at 208). (For convenience, we shall hereafter
refer to the common law right of free speech as “common law free speech”and the right of free speech under Art 10 of the European Convention as
“the Convention right of free speech”.) Prior to the enactment of the HRA,
common law free speech was no di fferent from any other common law
right ( ie, any other right which could be enjoyed at common law based on
the principle that whatever conduct was not proscribed by law was
permitted). After the Convention right of free speech came into existence,
common law free speech became a lowe r order legal right in England as it
did not have a “constitutional” foundati on. This change in the legal status of
freedom of speech impelled the House of Lords to give greater weight to theConvention right of free speech as co mpared to protection of reputation.
The law lords shifted the balance betw een freedom of speech and protection
of reputation in favour of the former where ( inter alia ) the media was
concerned because s 12(4)(a) of the HRA enjoined the English courts,
where “ journalistic , literary or artistic material (or … conduct connected
with such material)” [emphasis added] was concerned, to have “ particular
regard ” [emphasis added] to the extent to which such material had or was
about to become available to the public as well as the extent to which it wasor would be in the public interest  for such material to be published.
200 It should be noted that the Reynolds  privilege did not emerge out of
the blue. Reynolds (HL)  was decided against the backdrop of a major
common law jurisdiction ( viz, Australia) having first shifted the balance
between the competing interests of fr eedom of speech and protection of
reputation in favour of the former. In Lange v ABC  ([173] supra ), the High
Court of Australia recognised for the fi rst time what we shall hereafter call
“the Lange v ABC  privilege”, ie, qualified privilege vis-à-vis  the publication
of statements on “government and political matters” ( Lange v ABC  at, inter
alia, 114) specifically. The Lange v ABC  privilege was referred to and
considered by the English CA in Reynolds (CA)  ([186] supra ) as well as the
House of Lords in Reynolds (HL) , but both courts declined to follow it on
the ground that it was a developm ent indigenous to Australia, whose
constitutional structure was di fferent from that of England.
(2) The decision in Jameel
201 Following the decision in Reynolds (HL) , there was a period of
uncertainty as to how the Reynolds  factors were to be applied to the facts of
each case. In Jameel  ([169] supra ), the House of Lords clarified that these
factors were 
not intended to operate as separate requirements, all of which
must be satisfied. In the words of Lord Hoffmann ( Jameel  at [56]), the
Reynolds  factors were “not tests whic h the publication ha[d] to pass
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144 SINGAPORE LAW REPORTS [2010] 1 SLR
Reynolds [(HL)] , they [could] become ten hurdles at any of which the
defence [might] fail” [emphasis added]. Commenting on this point,Lord Carswell further explained in Seaga  ([177] supra ) at [12]:
As Lord Hoffmann said in [ Jameel  at] para 56, in the hands of a judge hostile
to the spirit of the Reynolds [(HL)]  decision, they [ ie, the Reynolds  factors]
can become ten hurdles at any of which the defence may fail. That is not the
proper approach. The standard of conduct required of the publisher of the
material must be applied in a practi cal manner and [must] have regard to
p r a c t i c a l  r e a l i t i e s  …  T h e  m a t e r i a l  s h o u l d  …  b e  l o o k e d  a t  a s  a  w h o l e ,  n o t
dissected or assessed piece by piece, without regard to the whole context.
202 In a separate speech in Jameel , Lord Hoffmann put forward
(at [48]–[58]) a three-step inquiry to determine whether the publication of
the defamatory material in ques tion would be protected by the Reynolds
privilege, as follows:
(a) First, the court had to assess whether the subject matter of the
defamatory material taken as a whole was “a matter of public interest”
(Jameel  at [48]) or a matter of legitimate public concern. To satisfy
this requirement, the subject matter  m u s t  b e  r e l e v a n t  t o  “ i n f o r m e d
public debate of significant public issues” (at [28]).
(b) If the subject matter of the defamatory material satisfied the
above requirement, the second step was to inquire whether the
inclusion of the offend ing words in the defamatory material was
justified ( Jameel  at [51]). The focus of this stage of the inquiry was on
whether the offending words were re asonably or appropriately part of
the defamatory material in terms of making “a real contribution to the
public interest element in [that material]” (at [51]).
(c) If the second requirement were also met, then the third step was
for the court to ascertain whether the steps taken by the defendant to
gather the defamatory material were responsible and fair. In otherwords, the court should scrutin ise the process by which the
defamatory material was researched, assembled, checked and edited,
and make a judgment as to whether that process, viewed in totality,
demonstrated responsible journalism on the part of the defendant. In
applying this test, the court should look to the Reynolds  factors for
guidance generally and not as in dependent requirements, each of
which had to be satisfied.
203 Apropos the Reynolds  factors, the law lords in Jameel  emphasised the
particular importance of the steps ta ken to verify the accuracy of the
defamatory material in question an d the opportunity afforded to the
plaintiff to comment on that material before  its publication (see Jameel
at [32] per Lord Bingham of Cornhill, at [79]–[85] per Lord Hoffmann,
at [138] per Lord Scott of Foscote and at [149] per Baroness Hale). Indeed,
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 145
has been described as “perhaps the core Reynolds  factor” (see Gatley  ([27]
supra ) at para 15.14) because ( ibid):
Not only does simple fairness require that a person who is going to publish a
story without being required to show that  it is true should give the subject of
the story the opportunity to put [across] his side [of the story], but it is often
one of the best ways to seek to verify the story.
That said, the defendant’s failure to verify the defamatory material with the
plaintiff before its publication is not necessarily fatal to a defence based on
the Reynolds  privilege. In the Privy Council’s decision in the Jamaican case
of Bonnick v Morris  [2003] 1 AC 300 (“ Bonnick ”), for instance, the author
of the defamatory article in question successfully invoked the Reynolds
privilege even though he did not verify the truth of the allegations
contained in that article before publishi ng it (see our discussion of this case
at [234] below).
204 In Jameel , the law lords could not agree on whether the Reynolds
privilege was a modified form of the traditional qualified privilege defence
(for which the applicable test is the duty-interest test) or a new type of
qualified privilege. Lord Bingham (a t [28]–[30]), Lord Hope of Craighead
(at [105]) and Lord Scott (at [130]) reiterated that the Reynolds  privilege
still rested essentially on the traditional duty-interest test, whereas
Lord Hoffmann (at [50]) and Baroness Hale (at [146]) expressed the view
that the Reynolds  privilege was “a ‘different jurisprudential creature’”
(at [146]). Baroness Hale viewed the Reynolds  privilege as “[i]n truth … a
defence of publication in the public  interest” (at [146]). To Lord Hoffmann
(see Jameel  at [50]):
The Reynolds  [privilege] was developed from the traditional form of privilege
by a generalisation  that in matters of public interest, there can be said to be a
professional duty on the part of jour nalists to impart the information and an
interest in the public in receiving it. The House [in Reynolds (HL) ] having
m a d e  t h i s  g e n e r a l i s a t i o n ,  i t  s h o u l d  i n  m y  o p i n i o n  b e  r e g a r d e d  a s  aproposition of law and not decided each time as a question of fact. If the
publication is in the public interest, the duty and interest are taken to exist.
The Reynolds defence is very different from the privilege discussed by the
[English] Court of Appeal in  Blackshaw … It is not as narrow as traditional
privilege [ ie, the traditional qualified privilege defence] nor is there a burden
upon the claimant to show malice to defeat it. [emphasis added]
However, none of the law lords in Jameel  went so far as to hold that political
speech per se  could constitute a separate subject matter category of qualified
privilege.
205 The juridical status of the Reynolds  privilege is currently still a matter
of debate. In many cases, whether this  privilege is viewed as being the same
as the traditional qualified privil ege defence or as “a ‘different
jurisprudential creature’” ( per Baroness Hale in Jameel  at [146]) would notpaginator.book  Page 145  Mond ay, January 4, 2010  12:22 PM

146 SINGAPORE LAW REPORTS [2010] 1 SLR
matter as the outcome would be the same. This can be seen from Seaga
([177] supra ), where Lord Carswell commented (at [10]):
… [In respect of] the juridical status of  the extension of privilege effected in
[Reynolds (HL) ,] … [s]ome have described it as ‘a different jurisprudential
creature from the tradit ional form of privilege from which it sprang’:
Loutchansky v Times Newspapers Ltd (Nos 2–5)  [2002] QB 783, 806, para 35,
per Lord Phillips of Worth Matrav ers MR, with whom Lord Hoffmann
agreed in [ Jameel  at] para 46. Both Lord Phillips in Loutchansky v Times
Newspapers Ltd (Nos 2–5)  [2002] QB 783, at para 33, and Lord Hoffmann in
[Jameel  at] para 46, adopted the view that the privilege in such cases attaches
to the publication itself rather than, as  in traditional privilege cases, to the
occasion on which it [ ie, the article complained of] is published. Others take
the view that the Reynolds  privilege is built upon the foundation of the duty-
interest privilege, an opinion adopted by Lord Bingham of Cornhill,
Lord Hope of Craighead and Lord Scott of Foscote in [ Jameel ]. For the
purposes of the present appeal the pr ecise jurisprudential status of the  Reynolds
privilege is immaterial. What is significant is that it is plain in their Lordships’
opinion that the  Reynolds [(HL)] decision was based, as Lord Bingham of
Cornhill said in [ Jameel ], at para 35, on a  ‘liberalising intention ’. It was
intended to give, and in their Lordships’ view has given, a wider ambit of
qualified privilege to certain types of communication to the public in general
t h a n  w o u l d  h a v e  b e e n  a f f o r d e d  b y  t h e  t r a d i t i o n a l  r u l e s  o f  l a w . [emphasis
added]
What is significant is that the Reynolds  privilege is, as Lord Carswell
pointed out in Seaga  at [10], “based … on a ‘liberalising intention’”.
206 To summarise our discussion thus far:
(a) Political speech does not in itself constitute a new and
independent subject matter cate gory of qualified privilege.
(b) Although the Reynolds  privilege represents a liberalisation of the
traditional qualified privilege defe nce, the traditional duty-interest
test remains “an essential element in the structure of the law ofqualified privilege” ( per Lord Hope in Jameel  at [105]). As
Lord Bingham said in the same case ( ie, Jameel ) at [28], the House of
Lords in Reynolds (HL)  “built on the traditional foundations of
qualified privilege but carried the law forward in a way which gavemuch greater weight than the earlier law had done to the value ofinformed public debate of significant public issues”.
(c) Under the “responsible journalism” test, the court takes into
account the Reynolds  factors in determining whether the public has
the right to know of the defamatory material in question.
(d) The Reynolds  privilege is “still in the process of development”
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 147
(3) Other important features of the Reynolds  privilege 
207 There are a few other important aspects of the Reynolds  privilege that
should be noted before we proceed with our examination of the First
Proposition. They are as follows:
(a) First, if the defendant can re ly on the traditional qualified
privilege defence, he need not invoke the Reynolds  privilege. These
two forms of qualified privilege can co-exist. But, where a media
defendant is concerned ( ie, where the media is sued in respect of
defamatory information of public interest which it published), it will
generally be easier for the media defendant to succeed in establishing
the Reynolds  privilege as “[t]he Reynolds  test [ ie, the ‘responsible
journalism’ test] is more easily sati sfied, being a liberalisation of the
traditional rules” ( per Lord Carswell in Seaga  at [15]). It should also
be noted that the size of the target audience or readership of the
defamatory material in question is  not relevant to the question of
whether it is the Reynolds  privilege or the traditional qualified
privilege defence which appl ies. As pointed out in Gatley  ([27] supra )
at para 14.3:
[T]he line between the classical and [the] Reynolds  privileges cannot be
sharply drawn. Thus it is perfectly possible that a case may fall into the
category based on a relationship even though the audience to which
the statement is addressed is much larger than that for some media
publications. In one case [ viz, Kearns v General Council of the Bar
[2003] 1 WLR 1357], for ex ample, a privilege exis ted on the traditional
model [ ie, the model based on the traditional duty-interest test]
between the General Council of th e Bar and 10,000 barristers, whereas
[in Al-Fagih v H H Saudi Research & Marketing (UK) Ltd  [2002]
EMLR 13,] a newspaper circulating among only 1,500 Saudi nationals
in [England] had to satisfy th e further requirements under
Reynolds [(HL)]  …
(b) Second, the Reynolds  privilege protects the publication to the
public at large of all information that  is of sufficient “public interest”.
In this regard, it is important to bear in mind that “what engages the
interest of the public  may not be material which engages the public
interest” ( per Lord Bingham in Jameel  at [31]). As Baroness Hale put
it (Jameel  at [147]), “the most vapid tittl e-tattle about the activities of
footballers’ wives and girlfriends inte rests large sections of the public,
but no one [can] claim any real public interest in … being told all
about it”. Whether the defamatory ma terial in question is of sufficient
public interest is solely a matter for the court to decide. Where the
defamatory material relates to political speech, given the nature of
such information, it is difficult to envisage (at least in the context of a
democracy) a case where the public interest requirement will not be
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148 SINGAPORE LAW REPORTS [2010] 1 SLR
the Sunday Times  article, although relating to political developments
in Ireland  (specifically, Mr Reynolds’s resignation as Prime Minister
of Ireland in November 1994), was he ld by both the English CA and
the House of Lords to be of public interest to the public in England . If
the Sunday Times  article had been about the then British Prime
Minister, it would a fortiori  have satisfied the public interest
requirement.
(c) Third, the Reynolds  privilege is not confined to defamatory
statements published by the media, nor is it a defence for the media
only. In Seaga , for example, the Privy Council held that the privilege
extended to a defamatory speech made  by the defendant politician at
a public meeting where the press was present (see also Gatley  at
para 15.7). Indeed, in Jameel , Lord Hoffmann stated (at [54]) that
“the defence [was] … available to anyone who publishe[d] material ofpublic interest in any medium ” [emphasis added], which would (so it
appears) include even publication via the Internet (see further [292]
below).
(d) Fourth, given that the “responsible journalism” test (which is
the test for determining whether the Reynolds  privilege is applicable)
is to be applied having regard to the Reynolds  factors, malice has
effectively been rendered irrelevant  as a means of defeating a defence
based on this privilege. As Lo rd Phillips of Worth Matravers MR
explained in the English CA case of Loutchansky v Times Newspapers
Ltd (Nos 4 and 5), Loutchansky v Times Newspapers Ltd (Nos 2, 3
and 5)  [2002] QB 783 (“ Loutchansky v Times Newspapers Ltd
(Nos 2–5) ”) at [33]:
[O]nce [the]  Reynolds privilege attaches, little scope remains for any
subsequent finding of malice . Actual malice in this context has
traditionally been reco gnised to consist either of recklessness, [ ie,] not
believing the statement to be true or being indifferent as to its truth, or
of making it with the dominant motive of injuring the claimant. But
the publisher’s conduct in both regard s must inevitably be explored when
considering [the Reynolds ] factors, [ie,] in deciding whether the
publication is covered by qualif ied privilege in the first place . [emphasis
added]
Similarly, in Jameel , Lord Hoffmann stated (at [46]):
There is no question of the [ Reynolds ] privilege being defeated by proof
of malice because the propriety of the conduct of the defendant is built
into the conditions under whic h the material is privileged . The burden is
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 149
Offshoot of the Reynolds  privilege: The neutral reportage defence
208 The neutral reportage defence is, as we alluded to earlier, an offshoot
of the Reynolds  privilege. This defence ( ie, the neutral reportage defence)
appears to stem from the English CA’s pronouncement in Al-Fagih v
HHS a u d i  R e s e a r c h  &  M a r k e t i n g  ( U K )  L t d  [2002] EMLR 13 (“ Al-Fagih ”)
that, if a newspaper were to report a matter of public interest neutrally, it
should enjoy the defence of qualified privilege. In this connection, Simon
Brown LJ said (at [52]):
[T]here will be circumstan ces where … in short, bo th sides to a political
dispute are being fully, fairly and disint erestedly reported in their respective
allegations and responses. In this situat ion it seems to me that the public is
e n t i t l e d  t o  b e  i n f o r m e d  o f  s u c h  a  d i s p u t e  w i t h o u t  h a v i n g  t o  w a i t  f o r  t h e
publisher, following an attempt at veri fication, to commit himself to one side
or the other.
209 In Jameel , the defendant sought to re ly on the neutral reportage
defence at a late stage of the proceedings before the English CA (see Jameel
(Mohammed) v Wall Street Journal Europe Sprl  [2005] QB 904). Despite the
defendant’s tardiness in this regard, the English CA was prepared to accept
that the ninth Reynolds  factor ( viz, the tone of the article complained of)
suggested “the possibility that [the] Reynolds  privilege [might] attach to the
neutral reporting  of allegations made by a third party, notwithstanding that
the publisher [did] not believe that the allegations [were] true” [emphasis
added] (at [19]). This issue was not p ursued in the House of Lords, but the
doctrine was referred to by Lord Hoffmann in the context of “cases … inwhich the public interest [lay] simply in the fact that the statement was
made, when it [might] be clear that th e publisher [did] not subscribe to any
belief in its truth” (see Jameel  at [62]; see also Gatley  ([27] supra ) at
para 15.16).
210 In Roberts v Gable  [2008] QB 502 (“ Roberts ”), the English CA
examined the neutral reportage defence in  greater detail and held that it was
a form  of the Reynolds  privilege ( per Ward LJ at [60]):
Reportage and Reynolds qualified privilege
60 Once reportage is seen as a defence of qualified privilege, its place in the
legal landscape is clear. It is, as was conceded in [ Al-Fagih ] a form of, or a
special example of, [the]  Reynolds qualified privilege, a special kind of
responsible journalism but with distinctive features of its own . It cannot be a
defence sui generis because [ Reynolds (HL) ] is clear authority that whilst the
categories of privilege are not closed, the underlying rationale justifying the
defence is the public policy demand fo r there to be a duty to impart the
information and an interest in receiving it … If the case for a genericqualified privilege for political speech had to be rejected, so too the case for a
generic qualified privilege for reportage must be dismissed.
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150 SINGAPORE LAW REPORTS [2010] 1 SLR
211 The English CA also set out extensively the proper approach to the
neutral reportage defence by listing ni ne matters that must be taken into
account when considering whether or not this defence was made out (see
Roberts  at [61], which was quoted by th e Judge at [218] of the Judgment).
Notably, in the course of discussing these nine matters, the English CApointed out that, although the neutral reportage defence was a form of the
Reynolds  privilege, it parted company with the latter on one material point,
namely (see Roberts  at [61] per Ward LJ):
… In a true case of reportage there is no need to take steps to ensure the
accuracy of the pu blished information.
… [The defendant] is absolved from th at responsibility because he is simply
reporting in a neutral fashion the fact  that [the offending words have] been
said without adopting the truth.
212 It should be noted that the reco gnition (in England) of the neutral
reportage defence does not mean that a republication of the offending
words is no longer actionable. It is  a well-established rule at common law
(known as the “repetition rule”) that each republication of the offending
words constitutes a new and separate  instance of defamation because
“repeating someone else’s libellous sta tement is just as bad as making the
statement directly” ( per Lord Reid in Rubber Improvement Ltd  ([28] supra )
at 260; see also Gatley  at paras 6.32 and 11.4). The repetition rule entails
that ( per Ward LJ in Roberts  at [55]; see also Cookson v Harewood  [1932]
2 KB 478 at 485, Rubber Improvement Ltd  at 283–284 and Gatley  at
para 11.4):
[I]f A makes a defamatory statement about B and C repeats it, C cannot
succeed in the defence of justification by showing that A made the statement:
C must prove [that] the charge against B is true. This is so even if C believes
the statement to be true and even  when C names A as his source.
213 However, the repetition rule has al so “long been qualified by specific
reporting privileges granted by the co mmon law or by statute, for example
in relation to fair and accurate repo rts of court proceedings and of public
meetings” (see Gatley  at para 15.16). With the acceptance of the neutral
reportage defence as an offshoot of the Reynolds  privilege, it appears that
English law now “admits a more general  privilege, not tied to pre-defined
situations” [emphasis added] (see Gatley  at para 15.16). It must, however,
be borne in mind that, even though neutral reportage is “a more general
privilege” (see Gatley  at para 15.16), it does not provide a blanket
exemption. As Ward LJ stated in Roberts  at [59]:
[T]he repetition rule and reportage are not in conflict with each other. The
former is concerned with justification, th e latter with privilege. A true case of
reportage may give the journalist a comp lete defence of qualified privilege. If
the journalist does not establish the defence [ ie, the neutral reportage
defence] then the repetition rule appl ies and the journalist  has to prove the
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 151
The Reynolds  privilege in other Commonwealth jurisdictions
(1) Overview
214 Reynolds (HL)  being a decision of the House of Lords, it is not
surprising that the Reynolds  privilege has been considered and followed in
some Commonwealth jurisdictions (for instance, Jamaica (see, eg, Seaga
([177] supra ) and Bonnick  ([203] supra )); Ontario (see, eg, Cusson v Quan
[2007] ONCA 771 (“ Cusson ”)); Samoa (see, eg, Alesana v Samoa Observer
Co Ltd  [1998] WSSC 1 (“ Alesana ”)); and South Africa (see, eg, National
Media Ltd v Bogoshi  1998 (4) SA 1196 (“ Bogoshi ”)). Other jurisdictions
which have applied the Reynolds  privilege (as listed in Gatley  at para 15.21,
n 198) include Brunei Darussalam (see, eg, Rifli Bin Asli v Ahmed Kawari
Isa (10 September 2001) (unrep orted)); Cyprus (see, eg, Alithia Publishing
Co Ltd v Cyprus  Application No 17550 of 2003 (22 May 2008)
(unreported)); Hong Kong (see, eg, Chan Chook Tim v Wong Kwok Hung
[2003] HKCU 301 (“ Chan Chook Tim ”) and Yaqoob v Asia Times Online
Ltd [2008] 3 HKC 589 (“ Yaqoob ”)); and Malaysia (see, eg, Mark Ignatius
Uttley @ Mark Ostyn v Wong Kam Hor  [2002] 4 MLJ 371 (“ Mark Ignatius
Uttley ”)).
215 In contrast, Australia and New Zealand have developed their own
forms of qualified privilege with regard to political speech, which are closer
in substance to the privilege laid down by the US Supreme Court in The
New York Times Co v L B Sullivan  376 US 254 (1964) (“ New York Times v
Sullivan ”) than the Reynolds  privilege. The privilege laid down in New York
Times v Sullivan  (“the New York Times  privilege”) was considered and
rejected in Reynolds (HL) . There is therefore no uniformity among the
Commonwealth jurisdictions on the application of the Reynolds  privilege,
which itself reflects the differences in political, social and cultural values in
these jurisdictions. We shall exam ine briefly below (at [216]–[235]) the
developments in Australia, New Zealan d as well as some of the other above-
mentioned jurisdictions.
(2) The position in Australia
216 As we mentioned earlier (see [200] above), in Lange v ABC  ([173]
supra ), the High Court of Australia established the Lange v ABC  privilege in
relation to the publication of statements on “government and politicalmatters” (at 114) before Reynolds (HL)  was decided. In Lange v ABC , the
plaintiff, a former Prime Minister of New Zealand, sued the Australian
Broadcasting Corporation (“ABC”) for defamation in respect of a current
affairs television programme produced by ABC which had criticised his
conduct. The plaintiff contended that the programme had imputed that hewas unfit to hold public office.
217 In hearing a pre-trial challenge to the availability of certain defences,
the High Court of Australia held that the constitutional protection set outpaginator.book  Page 151  Mond ay, January 4, 2010  12:22 PM

152 SINGAPORE LAW REPORTS [2010] 1 SLR
in the Commonwealth of Australia Constitution Act (Cth) (“the Australian
Constitution”) vis-à-vis  the communication of political information
justified granting protection to publishers who disseminated to the
Australian public at large “infor mation, opinions and arguments
concerning government and political matters that affect[ed] the people ofAustralia” ( Lange v ABC  at 115). Delivering a single judgment, the High
Court of Australia said (at 115–116):
Because the [Australian] Constitution requires ‘the people’ to be able to
communicate with each other with respec t to matters that could affect their
choice in federal elections or constitutional referenda or that could throw light
on the performance of ministers of St ate and the conduct of the executive
branch of government, the common law rules concerning privileged
communications … reached the point where they failed to meet that
requirement . However, the common law of defamation can and ought to be
developed to take into account the varied conditions to which McHugh J
referred [in Stephens v West Austra lian Newspapers Ltd  (1994) 182 CLR 211].
The common law rules of qualified privilege will then properly reflect therequirements of ss 7, 24, 64, 128 and related sections of the [Australian]
Constitution .
Accordingly, this court should now decl are that each member of the Australian
community has an interest in disseminating and receiving information,
opinions and arguments concerning go vernment and political matters that
affect the people of Australia. The duty to disseminate such information issimply the correlative of the interest in receiving it . The common convenience
and welfare of Australian society are advanced by discussion – the giving and
receiving of information – about go vernment and political matters. The
interest that each member of the Australian community has in such a
discussion extends the categori es of qualified privilege. Consequently, those
categories now must be recognised as protecting a communication made to thepublic on a government  or political matter . It may be that, in some respects,
the common law defence as so extended go es beyond what is required for the
common law of defamation to be compatible with the freedom ofcommunication required by the [Aus tralian] Constitution. For example,
discussion of matters conc erning the United Nation s or other countries may
be protected by the extended defence of  qualified privilege, even if those
discussions cannot i lluminate the choice for electo rs at federal elections or in
amending the [Australian] Constitu tion or cannot throw light on the
administration of federal government.
218 In essence, the High Court of Australia recognised political speech as
a separate subject matter category of qualified privilege. However, the courtalso acknowledged that “the damage that [could] be done when there
[were] thousands of recipients of  a communication [was] obviously so
much greater than when there [were] only a few recipients” ( Lange v ABC
at 116). The court thus held that the de fendant who sought to rely on the
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 153
defamatory material was “reasonable” wi thin the meaning of (the then) s 22
of the Defamation Act (1974) (N SW) (“the NSW Defamation Act”).
Section 22 of that Act, which has since been repealed, read as follows:
(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having
information on some subject,
(b) the matter is published to the recipient in the course of giving to
the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter is
reasonable in the circumstances ,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in
having information on some subject if, but only if, at the time of thepublication in question, the publisher believes on reasonable grounds thatthat person has that interest.
…
(3) Where matter is published for rewa rd in circumstance s in which there
would be a qualified privilege under su bsection (1) for the publication if it
were not for reward, there is a defence of qualified privilege for that
publication notwithstanding that it is for reward.
219 At 116–117 of Lange v ABC , the High Court of Australia explained:
[T]he damage that can be done when th ere are thousands of recipients of a
communication is obviously so much greater than when there are only a few
recipients. Because the damage from the former class of publication is likely to
be so much greater than [the damage] from the latter class, a requirement ofreasonableness as contained in s 22 of the [NSW] Defamation Act, which goes
b e y o n d  m e r e  h o n e s t y ,  i s  p r o p e r l y  t o  b e  s e e n  a s  r e a s o n a b l y  a p p r o p r i a t e  a n d
adapted to the protection of reputation  and, thus, not inconsistent with the
freedom of communication which the [Australian] Constitution requires .
Reasonableness of conduct is the ba sic criterion in s 22 of the [NSW]
Defamation Act which gives a statutory de fence of qualified privilege. It is a
concept invoked in one of the defences  of qualified protection under the
Defamation Codes of Qu eensland and Tasmania. An d it was the test of
reasonableness that was invoked in the joint judgment in Theophanous  [v
The Herald & Weekly Times Limited  (1994) 182 CLR 104]. Given these
considerations and given, also, that the requirement of honesty of purpose was
developed in relation to more limited publications, reasonableness of conductseems the appropriate criterion to apply when the occasion of the publication ofdefamatory matter is said to be an o ccasion of qualified privilege solely by
reason of the relevance of the matter published to the discussion of government
or political matters . But reasonableness of conduct is imported as an element
only when the extended category of qual ified privilege is invoked to protect a
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154 SINGAPORE LAW REPORTS [2010] 1 SLR
audience. For example, reasonableness of  conduct is not an element of that
qualified privilege which protects a member of the public who makes a
complaint to a minister concerning the administration of his or herdepartment. Reasonableness of conduct is an element for the judge to consider
only when a publication concerning a government or political matter is made
in circumstances that, under the English common law, would have failed toattract a defence of qualified privilege .
220 The passages quoted in the preceding paragraph show that the Lange
v ABC  privilege is “clearly an indige nous Australian product” (see Gatley
([27] supra ) at para 15.22). For this and other reasons, the law lords in
Reynolds (HL)  rejected that privilege as being inappropriate for England.
Conversely, the Reynolds  privilege has no place in the law of defamation of
Australia (see also gene rally Andrew T Kenyon, Defamation: Comparative
Law and Practice  (UCL Press, 2006) at pp 197 and 221–222 for a
comparison between the Lange v ABC  privilege and the Reynolds  privilege).
(3) The position in New Zealand
221 Like Australia, New Zealand has established its own model of
qualified privilege to protect the publ ication of political speech, which we
shall hereafter re fer to as “the Lange v Atkinson  privilege” based on the case
that gave rise to this privilege, ie, Lange v Atkinson (CA) (No 1)  ([173]
supra ). In that case, the plaintiff (who was also the plaintiff in Lange v ABC )
sued the defendants (a political scientist-cum-journalist and his publisher)
in respect of an article about him (the  p l a i n t i f f )  i n  h i s  c a p a c i t y  a s  t h e
Member of Parliament for Mangere, th e former leader of the parliamentary
Labour Party, the former leader of the Opposition and a former Prime
Minister of New Zealand. The plaintiff pleaded that the article and thecartoon accompanying it, in their natural and ordinary meaning, meant
and were understood to mean that he was dishonest, lazy, insincere and
irresponsible. The defendants pleaded, inter alia , the defences of qualified
privilege and “political expression” (a t 429). The plaintiff applied to strike
out the defence of political expression  (as well as the defence of qualified
privilege in so far as it repeated a llegations made in connection with the
former defence) on the ground that the plea of “political expression”
disclosed no defence and was bad in law.
222 At first instance, the New Zealand High Court dismissed the
plaintiff’s application (see Lange v Atkinson and Australian Consolidated
Press NZ Ltd  [1997] 2 NZLR 22 (“ Lange v Atkinson (HC) ”)). On appeal, the
New Zealand CA, after reviewing the tr aditional qualified privilege defence
at common law, the nature of democr acy in New Zealand and the provision
on freedom of expression in s 14 of  the New Zealand Bill of Rights Act
1990, dismissed the plaintiff’s appeal . The New Zealand CA held (at 428 of
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 155
[T]he defence of qualified privilege a pplies to generally-p ublished statements
made about the actions and qualities of those currently or formerly elected to
[the New Zealand] Parliament and those with immediate aspirations to bemembers, so far as those actions and qual ities directly affect  or affected their
capacity (including their personal ability and willingness) to meet their public
responsibilities.
223 The above passage sums up the essence of the Lange v Atkinson
privilege. The New Zealand CA also set out a five-point summary of this
privilege as follows (at 467–468):
Our consideration of the development of the law leads us to the following
conclusions about the defence of qualified privilege as it applies to political
statements which are published generally :
(1) The defence of qualified privilege may be available in respect of a
statement which is published generally .
(2) The nature of New Zealand’s democracy means that the wider
public may have a proper interest in respect of generally-published
statements which directly concern the functioning of representative and
responsible government, including statements about the performance orpossible future performance of spec ific individuals in elected public
office .
(3) In particular, a proper interest do es exist in respect of statements
made about the actions and qualities of those currently or formerly
elected to Parliament and those wi th immediate aspirations to such
office , so far as those actions and qualities directly affect or affected
their capacity (including their personal ability and willingness) to meet
their public responsibilities.
(4) The determination of the matt ers which bear on that capacity
will depend on a consideration of what is properly a matter of publicconcern rather than of private concern.
(5) The width of the identified public concern justifies the extent of
the publication .
224 Lange v ABC  was cited to the New Zealand CA, which substantially
agreed with the Australian High Court’ s ruling that the defence of qualified
privilege should be extended to “commu nication[s] made to the public on a
government or political matter” (see Lange v ABC  at 115). The New
Zealand CA disagreed, however, with the requirement of reasonableness
laid down in that case. At 469–470 of Lange v Atkinson (CA) (No 1) , the
New Zealand CA said ( per Blanchard J, with whom Richardson P as well as
Henry and Keith JJ agreed):
[N]either the cases nor the legislat ion incorporate any requirement of
reasonable care into the de fence of qualified privilege . The very section which
gives statutory protection by reference to the common law [ ie, s 19 of the
Defamation Act 1992 (NZ)] makes no refere nce to a duty of care and at thepaginator.book  Page 155  Mond ay, January 4, 2010  12:22 PM

156 SINGAPORE LAW REPORTS [2010] 1 SLR
same time it saves the common law. The basis of qualified privilege is that the
recipient has a legitimate interest to receive information as sumed to be false.
How can that interest differ simply becaus e the author has failed to take care to
ensure that the information is true? … [A]ny such reasonableness requirementwould essentially make the statutory restatement of malice [in s 19(1) of theDefamation Act 1992 (NZ)] redundant . [emphasis added]
225 Tipping J, in a separate judgment, agreed with the rest of the judges
that “[a] requirement of reasonableness, in the sense of taking such care
with the facts as [was] reasonable in the circumstances, [could not] be
introduced as a condition or element of the [ Lange v Atkinson  privilege],
whether in the definition of the occasion or otherwise” ( Lange v
Atkinson (CA) (No 1)  at 477). He pointed out, however, that “such a
reasonableness consideration could be relevant to whether the defendant
ha[d] taken improper advantage of the occasion of publication” (at 477) for
the purposes of s 19 of the Defama tion Act 1992 (NZ) (“New Zealand’s
Defamation Act”), which reflected the common law concept of malice; if
the defendant had taken improper advant age of the occasion of publication,
that would defeat the defe nce of qualified privilege.
226 On further appeal, the Privy Council noted that the New Zealand CA
had not had the benefit of considering the House of Lords’ decision in
Reynolds (HL)  ([20] supra ), and that the Lange v Atkinson  privilege was
“wider than ha[d] been held acceptable  in either England or Australia” (see
Lange v Atkinson  [2000] 1 NZLR 257 (“ Lange v Atkinson (PC) ”) at 263).
Given the policy consider ations highlighted in Reynolds (HL) , the Privy
Council decided to remit the case to the New Zealand CA for
reconsideration as the question of how the balance between freedom of
speech and protection of reputation should be struck was pre-eminently a
matter for the courts of each country to decide according to that country’s
own political and social conditions. At 261–262 of Lange v Atkinson (PC) ,
the Privy Council said:
Their Lordships’ Board heard the present appeal a few days before Their
Lordships, in their capacity as memb ers of the Appellate Committee of the
House of Lords, heard oral argument in [Reynolds (HL)] . The House upheld
the decision of the (English) Court of Appeal [in Reynolds (CA)  ([186]
supra )] but not its formulation of three questions. The House decided that
the common law should not develop ‘political information’ as a new subject-matter category of qualified privilege,  whereby the publication of all such
information would attract qualified privilege, whatever its source andwhatever the circumstances. Rather, the established common law approach
to publication of misstatements of fact to the general public remainsessentially sound. Whether such a publication is in the public interest or, in
the conventional phraseology, whether there is a duty to publish to the
intended recipients, depends upon the circumstances, incl uding the nature of
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 157
Against this somewhat kaleidoscopic background, one feature of all the
judgments, New Zealand, Australian and English, stands out with conspicuous
clarity: the recognition that striking a balance between freedom of expression
and protection of reputation calls for a value judgment which depends upon
local political and social conditions. Th ese conditions include matters such as
the responsibility and vulnerability of the press . … For some years Their
Lordships’ Board has recognised the limitations on its role as an appellate
tribunal in cases where the decision depe nds upon considerations of local public
policy . The present case is a prime instance  of such a case. As noted by Elias J
[in Lange v Atkinson (HC)  ([222] supra )] and the [New Zealand] Court of
Appeal [in Lange v Atkinson (CA) (No 1)  ([173] supra )], different countries
have reached different conclusions on the issue arising on this appeal. The
Courts of New Zealand are much better placed to assess the requirements of the
public interest in New Zealand than Th eir Lordships’ Board. Accordingly, on
this issue the Board does not substitute its own views, if different, for those ofthe New Zealand Court of Appeal .
227 The New Zealand CA reheard the case and affirmed its earlier
decision in Lange v Atkinson (CA) (No 1)  (see Lange v Atkinson  [2000]
3 NZLR 385) (“ Lange v Atkinson (CA) (No 2) ”)). The New Zealand CA
further held, in relation to the five-point summary set out in its earlier
decision (see Lange v Atkinson (CA) (No 1)  at 468), that a sixth point should
be added, namely, in order to be protected by the Lange v Atkinson
privilege, the statement in question would have to be published on a
“qualifying occasion ” [emphasis added] (see Lange v Atkinson (CA) (No 2)
at [41]). According to th e New Zealand CA (at [21]):
Any bona fide communication in the course of political discussion and
within the defined subject-matter [ ie, the subject matter set out in item (3) of
the five-point summary in Lange v Atkinson (CA) (No 1)  at 468] is very likely
to be made on an occasion of qualified privilege.
There was no specific requirement that the defendant’s conduct in
publishing the defamatory material in question must be reasonable,
although s 19 of New Zealand’s Defamation Act would prevent the
defendant from invoking the defence of qualified privilege if he was
predominantly motivated by ill will against the plaintiff or otherwise tookimproper advantage of the occasion of publication.
228 As for whether or not the approach taken by the House of Lords in
Reynolds (HL)  should be adopted in New Zealand, the New Zealand CA
ruled in the negative , as follows (see Lange v Atkinson (CA) (No 2)
at [37]–[41]):
[37] The task of this Court is to cons ider whether the decision of the House
of Lords in Reynolds [(HL)]  leads us to make a different assessment of the
competing considerations of the right to  freedom of expre ssion and the right
to reputation from that which we made in 1998 [in Lange v Atkinson (CA)
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158 SINGAPORE LAW REPORTS [2010] 1 SLR
[38] For reasons which can be briefly restated we would not strike the balance
differently from the way it was struck in 1998. First, the Reynolds [(HL)]
decision appears to alter the structure of the law of qualified privilege in a waywhich adds to the uncertainty and chilli ng effect almost inevitably present in
t h i s  a r e a  o f  l a w . We are not persuaded that in the New Zealand situation
matters such as the steps taken to ve rify the informatio n, the seeking of
comment from the person defamed, and the status or source of the
information, should fall within the ambit of the inquiry into whether the
occasion is privileged. Traditionally su ch matters are not of concern to that
question in the kind of setting pres ently under discussi on. In particular,
source and status may be relevant, but on ly in the area of reports of meetings
and suchlike. For the re asons expressed in [ Lange v Atkinson (CA) (No 1) ],
we do not consider it necessary, nor would it be in accord with principle, to
import into this inquiry, for the limi ted purposes of the specific subject-
matter now under discussion but not ot herwise, a specific requirement of
reasonableness.
[39] The full scope of s 19 of [New Ze aland’s] Defamation Act … and its
possible application to poli tical discussion requires  separate consideration,
but as will be seen it can provide a meas ure of protection to or safeguard for a
plaintiff which ought not to attract the restrictions sometimes applied to thecommon law concept of malice in this context. The idea of taking improper
advantage of the occasion is important when one is considering the
appropriate balance between freedom of expression and protection of
reputation. Its connotations are potentially wider than the traditional
concept of malice which included excess of publication and improper
purpose. To that extent we are able to take a more expansive approach todefining an occasion of privilege because we have the ability in s 19 to take acorrespondingly more expansive approach to what constitutes misuse of the
occasion. One development is therefore capable of being matched by another
so that the overall balance is kept right. The idea of  taking improper
advantage is appropriately applied to  those who are reckless and thereby do
not exhibit the necessary responsibility  when purporting to act under the
cloak of qualified privilege.
[40] Secondly, there are significant differe nces between the constitutional and
political context in New Zealand and in the United Kingdom in which thisbody of law operates . They reflect societal differences. Thirdly, the position of
the press in the two countries does appear to be significantly distinct . And,
fourthly, this is an area of law in which Parliament has essentia lly left it to the
Courts to develop the governing princi ples and apply them to the evolving
political, social and economic conditions.
[41] Our decision is to adhere to our previous conclusions and, in particular,
to confirm the five-point summary  … which we gave in [ Lange v
Atkinson (CA) (No 1) ]. A sixth point should be added to the summary to reflect
what was previously implicit , but can be made explicit :
(6) To attract privilege the statement must be published on a qualifying
occasion.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 159
229 To complete our examination of the jurisprudence in New Zealand,
we set out s 19(1) of New Zealand’s De famation Act, which reads as follows:
19 Rebuttal of qualified privilege
(1) In any proceedings for defamation, a defence of qualified privilege
shall fail if the plaintiff pr oves that, in publishing the matter that is the subject
of the proceedings, the defendant was predominantly motivated by ill will
towards the plaintiff, or otherwise to ok improper advantage of the occasion
of publication.
(4) The position in Canada
230 In Canada, the Ontario Court of Appeal held in Cusson  ([214] supra )
that the Reynolds  privilege was applicable in Ontario. The court rejected the
Australian and the New Zealand approaches on the ground that they were
“driven by constitutional limitations not present in Canada” (at [141]). The
Supreme Court of Canada has reserved its judgment in the appeal against
this decision.
(5) The position in Hong Kong
231 Reynolds (HL)  was cited without disapproval by the Hong Kong
Court of Final Appeal in Cheng Albert v Tse Wai Chun Paul  [2004] 4 HKC
1, albeit in the context of explaining  the difference between the defences of,
respectively, qualified privilege and fair comment. In contrast, the Hong
Kong Court of First Instance applied the Reynolds  privilege in Chan Chook
Tim ([214] supra ) and Yaqoob  ([214] supra ), but without much discussion
as to whether it was appropriate to adopt the privilege in Hong Kong, giventhe political and social co nditions there. It bears mention that, in June 1991,
Hong Kong enacted the Hong Kong Bill of Rights Ordinance (Cap 383),
which incorporates the provisions of the International Covenant on Civil
and Political Rights (“ICCPR”). Furthermore, the Basic Law of the Hong
Kong Special Administrative Region of  the People’s Republic of China
(Cap 2101) (“Hong Kong’s Basic Law”) also provides for fundamentalrights and freedoms. The ICCPR has yet to be signed or ratified by the
People’s Republic of China, but Hong  Kong’s Basic Law provides that the
provisions of the ICCPR as applied to Hong Kong shall remain in force (see
generally Halsbury’s Laws of Hong Kong  vol 14 (LexisNexis, 2009 Reissue)
at paras 210.010, 210.048 and 210.051).
(6) The position in Malaysia
232 The legal status of the Reynolds  privilege in Malaysia is unclear.
Reynolds (HL)  was considered by the Malaysian High Court in Mark
Ignatius Uttley  ([214] supra ). There, Kamalanathan Ratnam J referred
approvingly (at 384) to Reynolds (HL)  at 206, where Lord Nicholls criticised
the defendants’ failure to mention in the Sunday Times  article the
explanation given by Mr Reynolds in th e Dáil. In contrast, in the earlierpaginator.book  Page 159  Mond ay, January 4, 2010  12:22 PM

160 SINGAPORE LAW REPORTS [2010] 1 SLR
case of Dato’ Seri Anwar bin Ibrahim v Dato’ Seri Dr Mahathir bin
Mohamad  [1999] 4 MLJ 58 at 70–71, the Malaysian High Court referred to
Reynolds (CA)  ([186] supra ) and applied the three-step test set out therein
at 899. Other Malaysian High Court cases in which Reynolds (CA)  was
approved include Halim bin Arsyat v Sistem Televisyen Malaysia Bhd
[2001] 6 MLJ 353 and Dato’ Seri S Samy Vellu v Penerbitan Sahabat (M)
Sdn Bhd (No 3)  [2005] 5 MLJ 561.
233 Yet another different position has been taken by the Federal Court of
Malaysia. It held in Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr Mahathir
Mohamad  [2001] 2 MLJ 65 at 69, without an y elaboration or explanation,
that “the correct authority on qualified privilege … [was Lange v ABC
([173] supra )] and not [ Lange v Atkinson (CA) (No 1)  ([173] supra )]”. In the
light of these conflicting authorities, Evans on Defamation  ([26] supra )
takes the view (at p 135) that the position in Malaysia on the defence of
qualified privilege as appl ied to the publication of matters of public interest
remains open.
(7) The position in other Commonwealth jurisdictions
234 We earlier mentioned that the Reynolds  privilege has been adopted in
Jamaica. The Privy Council stated in Bonnick  ([203] supra ) at [16] that the
privilege was “consistent with sectio n 22 of the [Jamaican] Constitution”.
On the facts of that case, it was held that the author of the defamatory
article in question could rely on the Reynolds  privilege as the “responsible
journalism” test had been satisfied even though the author had relied on ananonymous source for the information published and had not made further
inquiries (at [17]). The Privy Council, however, also ackn owledged that that
case was “near the borderline” (at [28] ). In contrast, in a later Jamaican
case, viz, Seaga  ([177] supra ), the Privy Council held that the Reynolds
privilege could not be relied on as the defendant had not taken sufficient
care to check the reliability of the defamatory information published. Thedifferent outcomes in these two cases can, in our view, be explained on the
basis of the Privy Council’s finding in Bonnick  that (at [27]):
The defamatory imputation [of the offending words], while a matter of
importance, cannot be regarded as a pproaching anywhere near the top end of
a scale of gravity. … The defamatory meaning of the words used was not so
glaringly obvious that any responsible journalist would be bound to realise
this was how the words would be understood by ordinary, reasonable readers.The failure to make further inquiry … and the omission of [the plaintiff’s]
explanation of his dismissal, although unfortunate, have to be evaluated, and
their compatibility with responsible journalism consid ered, against this
background.
235 In South Africa, the decision of the Supreme Court of Appeal of South
Africa in Bogoshi  ([214] supra ) “recast the common law of South Africa in
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 161
Reynolds [(HL)] ” (see Gatley  ([27] supra ) at para 15.26). The Reynolds
privilege has also been held to  be the law in Ireland (see Leech v Independent
Newspapers (Ireland) Ltd  [2007] IEHC 223) as  well as Samoa (see Alesana
([214] supra )).
The First Proposition 
Outline of the Appellants’ submissions
236 To recapitulate, the First Proposition is that the Reynolds  privilege is
and has always been part of Singapore’s common law, and, thus, the
Appellants are entitled to a trial of the Defamation Suits in view of the
merits of their defences to these suit s. As our examinatio n of this argument
will require us to consider the interre lationship in our local context between
freedom of speech qua constitutional right (“constitutional free speech”)
and the law of defamation, it is necess ary that we first set out briefly the
constitutional history of Singapore.
237 When Singapore became part of Malaysia on 16 September 1963,
both the Constitution of the State of Singapore set out in Schedule 3 of the
Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963
(GN No S 1 of 1963) (“the 1963 State Constitution”) and the Constitutionof Malaysia (1962 Reprint) (“the 1963 Federal Constitu tion”), which we
shall refer to collectively as “the 1963 Singapore Constitution”, came into
force here (the Singapore Constitution  is the current equivalent of the 1963
Singapore Constitution). Subsequently, when Singapore became an
independent and sove reign republic on 9 August 1965, certain provisions of
the 1963 Federal Constitution (including  the fundamental liberties set out
in Arts 5–12 thereof) continued in force pursuant to s 6 of the Republic of
Singapore Independence Act 1965 (Act 9 of 1965) (“the RSIA”), and the
1963 State Constitution likewise continue d in force pursuant to s 13 of the
RSIA. For present purposes, the pertinent point to note is that freedom of
speech became a constitutional right in Singapore on 16 September 1963
when ( inter alia ) Art 10(1)( a) of the 1963 Federal Constitution (the then
equivalent of Art 14(1)( a) of the Singapore Constitution), which formed
part of the 1963 Singapor e Constitution, came into operation here. We
should also point out that these two provisions ( ie, Art 10(1)( a) of the 1963
Federal Constitution and Art 14(1)( a) of the Singapore Constitution) are
worded in substantially the same way.
238 The First Proposition consists  essentially of the following
submissions:
(a) Under the declaratory theory of the common law (“the
Declaratory Theory”), “the common law is [regarded as] an
immutable body of doctrine existi ng from time immemorial, to be
perceived by a judicial wisdom which proves to be ever more
penetrating with the passing of the years” ( per Brennan J in thepaginator.book  Page 161  Mond ay, January 4, 2010  12:22 PM

162 SINGAPORE LAW REPORTS [2010] 1 SLR
Australian High Court case of Giannarelli v Wraith  (1988) 165 CLR
543 (“ Giannarelli ”) at 584–585). In other words ( per Lord Browne-
Wilkinson in Kleinwort Benson Ltd v Lincoln City Council  [1999]
2 AC 349 (“ Kleinwort Benson ”) at 358):
[J]udges do not make or change law: they discover and declare the law
which is throughout the same. … [W]hen an earlier decision is
overruled the law is not changed: its true nature is disclosed, having
existed in that form all along.
(b) In view of the Declaratory Theory, the Reynolds  privilege
(although first formulated in 1999 in Reynolds (HL)  ([20] supra )) is
and has always been part of the traditional qualified privilege defence
at common law first enunciated in 1834 in Toogood  ([179] supra ) for
“the common convenience and welfare of society” ( Toogood  at 193;
1050). The “ Toogood  privilege” (as the Appellants call it) was
subsequently developed and eventually took the form of the Reynolds
privilege. Hence, the Reynolds  privilege is “not directly the result of
Article 10 [of the European Convention]” or the HRA, but was
instead “borne [ sic] out of the common law’s historic [ Toogood ]
privilege which protect[ed] commun ications made in  the interests
and convenience of modern society and particularly in the interests of
[a] modern democratic society”. The English and Commonwealthdecisions show that the Reynolds  privilege “is inherent in the common
law principle stated by Toogood  in 1834”. For this reason, the
Reynolds  privilege was “a defence which was available at the time the
Singapore Constitution [ ie, the 1963 Singapore Constitution] came
into operation and was part of the pre-existing right to free speech
which was protected by that Constitution”, and likewise remains partof our law today.
(c) In common law jurisdictions which have a written Constitution,
the Constitution is “the ultimate source of legal authority … and any
legal rule must conform with it[;] … the common law is subject to the
Constitution and must adjust where necessary to achieve consistency
with its rules”. Such adjustment “takes place at [the] inception [of theConstitution] whether it was perceived as such or not at the time”.
Because of such adjustment, the Reynolds  privilege has become part of
our common law of defamation and is consistent with Art 14 of the
Singapore Constitution.
(d) Under Art 14(1)( a) of the Singapore Constitution, “every citizen
of Singapore has the right to free dom of speech and expression”, but,
under Art 14(2)( a), Parliament may by law impose on this right
restrictions to provide against ( inter alia ) defamation. This effectively
entails that:
… Parliament and only Parliament ma y impose, explicitly, restrictions
by the law of defamation on free speech. There is no power underpaginator.book  Page 162  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 163
Article 14 of the [Singapore] Constitution for the courts to restrict
freedom of speech by common law methods in usurpation of
Parliament’s legislative function . … [The] Reynolds  … privilege is an
emanation of the traditional common law[;] the courts have no power
e i t h e r  t o  a b o l i s h  i t  o r  [ t o ]  r e f u s e  t o  a c k n o w l e d g e  i t  b e c a u s e  i t  n o w
conforms with the Constitutional guarantee [of freedom of speech].
Only Parliament may by legislation abolish any aspect of the common
law of defamation, includ ing public interest pr ivilege [in the present
context, the Reynolds  privilege]. Under [the Singapore] Constitution,
restrictions on free speech must be  made by Parliament and not the
courts . [emphasis added]
(e) Should Parliament seek to derogate from the constitutional
right of free speech set out in Art 14(1)( a) of the Singapore
Constitution, Parliament must do so “by an enactment … [made] at
the time the right is in existence  … and the enactment must do so
expressly or by necessary implication ” [emphasis added]. This is
because it is a fundamental principle of statutory construction that
“courts do not impute to the legisla ture an intention to abrogate or
curtail fundamental rights or free doms unless such an intention is
clearly manifested by unmistak able and unambiguous language” ( per
Gleeson CJ in Plaintiff S 157/2002 v The Commonwealth of Australia
(2003) 211 CLR 476 at 492).
(f) In this regard, when freedom of speech became a constitutional
right in Singapore on 16 Septembe r 1963, Parliament did not enact
the requisite legislation to restrict constitutional free speech. The
Defamation Ordinance 1960 (No 7  of 1960) (“the Defamation
Ordinance 1960”), which was the de famation statute in force in
Singapore at that time, did not amount to restrictive legislation of this
nature as it “preceded the Constitution [ ie, the 1963 Singapore
Constitution]” and, moreover, was “largely procedural”. Although
this court held in Jeyaretnam Joshua Benjamin v Lee Kuan Yew  [1990]
1 SLR(R) 337 (“ JJB v LKY (1990) ”) that “[t]he constitutional right of
freedom of speech and expression [was] unarguably restricted by the
laws of defamation” (at [5]), that de cision is questionable in view of
the subsequent ruling in JJB v LKY (1992)  ([19] supra ) that “the
Defamation Act [ ie, the Defamation Act (1985 Rev Ed)] was an
existing law within Article 162 [of th e Constitution of the Republic of
Singapore (1985 Rev Ed)]” [emphasis in original omitted] (for ease of
reference, the Constitution of th e Republic of Singapore (1985 Rev
Ed) will hereafter be termed “the Constitution of Singapore (1985 Rev
Ed)”). This is because:
[T]he Defamation Act [ ie, the Defamation Act (1985 Rev Ed)] …
c a n n o t  b e  b o t h  a n  e x i s t i n g  l a w  ( a m e n d e d  t o  t a k e  a c c o u n t  o f  t h eConstitution [ ie, the Constitution of Sing apore (1985 Rev Ed)]) and a
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164 SINGAPORE LAW REPORTS [2010] 1 SLR
Further, the decision in JJB v LKY (1992)  i s  f l a w e d i n  so  f a r  a s  th i s
court held that “it [was] implicit that the right of free speech underArt 14 [of the Constitution of Singapore (1985 Rev Ed) was] subject to
the common law of defamation as modified by … the Defamation Act
[(1985 Rev Ed)]” (at [58]). In so rul ing, the court “invert[ed] the
constitutional rule of recognitio n in Article 162 [of the Constitution
of Singapore (1985 Rev Ed)]” ( ie, the court subjected constitutional
free speech to the common law of defamation when it should have
done the converse instead), contrary to the Privy Council’s approach
in B Surinder Singh Kanda v Government  of the Federation of Malaya
[1962] AC 322.
Our decision on the First Proposition
239 In our view, the First Proposition is completely wrong in law as each
of the Appellants’ submissions in su pport of it is misconceived and
unsound. First, this proposition is ba sed on the erroneous premise that the
Declaratory Theory is a principle of the common law. Second, quite apart
from the fact that the Declaratory Theory is not a principle of the commonlaw, this theory is also, to all intent s and purposes, no longer part of the
current orthodoxy. Third, given that Reynolds (HL)  was decided after
12 November 1993 (the date of comm encement of the Application of
English Law Act 1993 (Act 35 of 1993) (“Act 35 of 1993”)), the Reynolds
privilege did not fall within the bo dy of English common law which
continued, pursuant to s 3(1) of that Act, to be part of the law of Singaporeafter the commencement of that Act. Fourth, contrary to the Appellants’
stance as outlined at sub-para (f) of  [238] above, Parliament did enact
legislation to expressly restrict constitutional free speech when thatconstitutional right came into existence in Singapore. Fifth, in so far as the
First Proposition turns on the principle of constitutional supremacy
(specifically, on the contention that  “the courts have no power either to
abolish [the Reynolds  privilege] or [to] refuse to acknowledge it because it
now conforms with the [c]onstitutional guarantee [of freedom of speech]
… [and] restrictions on free speech must be made by Parliament and notthe courts”), the Appellants do not have the requisite locus standi  to invoke
this principle as they are not citizens  of Singapore. We shall elaborate on
each of these reasons seriatim  below.
(1) The Declaratory Theory is not a principle of the common law
240 Our first reason for rejecting th e First Propositio n can be stated
briefly. Basically, the Declaratory Theo ry is not a principle of the common
law in the same way that the doctrine of stare decisis  and the doctrine of res
judicata  are principles of the common law. Instead, it is merely a theory or
an explanation as to how the common law develops. It is a juridical method
of expressing the idea that the common law has the capacity to provide the
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 165
legal issue by applying established pr inciples (whether narrow or broad) as
changing or changed social  conditions require. In short, the Declaratory
Theory lacks legal force, and is therefore neither a sufficient nor a
satisfactory ground for contending that the Reynolds  privilege is and has
always been part of the traditional qualified privilege defence at common
law.
(2) The Declaratory Theory no longer holds sway today
241 Our second reason for rejecting the Fi rst Proposition, in so far as it is
premised on the Declaratory Theory, is that this theory not only has nolegal force (because it is not a princi ple of the common law), but is also a
fiction. The current orthodoxy (whi ch we agree with) is that the
Declaratory Theory is, as Lo rd Browne-Wilkinson said in Kleinwort Benson
([238] supra ) at 358 (citing Lord Reid’s extrajudicial lecture, “The Judge as
Law Maker” (1972–1973) 12 JSPTL (NS) 22 at 22):
… a fairy tale in which no one any longer believes . In truth, judges make and
change the law. The whole of the co mmon law is judge-made and only by
j u d i c i a l  c h a n g e  i n  t h e  l a w  i s  t h e  c o m m o n  l a w  k e p t  r e l e v a n t  i n  a  c h a n g i n g
world. [emphasis added]
In the above lecture, Lord Reid had said (see “The Judge as Law Maker”
at 22):
There was a time when it was thought almost indecent  to suggest that judges
make law – they only declare it. Those wi th a taste for fairy tales seem to have
thought that in some Aladdin’s cave th ere is hidden the Common Law in all
its splendour and that on a judge’s appointment there descends on him
knowledge of the magic words Open Sesame. Bad decisions are given when
the judge has muddled the pass word an d the wrong door opens. But we do
not believe in fairy tales any more.
242 It is not necessary for us to refe r, by way of illustration, to the
numerous cases in which the House of Lords reversed long-standing
common law principles on the ground that they were inconsistent with
prevailing social conditions. The basi c flaw of the Declaratory Theory, as
aptly summed up by Prof Brian Simpson in his essay, “The Reflections of a
Craftsman” in Tom Bingham and the Transformation of the Law: A Liber
Amicorum  (Mads Andenas & Duncan Fairgrieve eds) (Oxford University
Press, 2009) Part 1, ch 14, is that it rests on (at pp 199–200):
… a double and inconsistent set of ideas. When a group of facts come before
an English Court for adjudication, the whole course of the discussion
between the judge and the advocate assu mes that no question is, or can be,
raised which will call for the application of any principles but old ones, or any
distinctions but such as have long been  allowed. It is taken absolutely for
granted that there is somewhere a ru le of known law which will cover the
facts of the dispute now litigated, and th at, if such a rule be not discovered, it
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166 SINGAPORE LAW REPORTS [2010] 1 SLR
to detect it. Yet the moment the judg ment has been rendered and reported,
we slide unconsciously or unavowedly into a new language and a new train of
thought. We now admit that the new decision has modified the law [citing
HSM a i n e ,  Ancient Law  (Everyman Library, 1972)  at pp 18–19]. [emphasis
in original]
243 In particular, the Declaratory Theory is inapt to explain the evolution
of common law principles that are ba sed on policy considerations which
change over time. The defence of qualif ied privilege is a paradigm of such a
common law principl e since it is based, as noted in Reynolds (HL)  ([20]
supra ) at 195 and Lange v Atkinson (PC)  ([226] supra ) at 261–262, on a
contemporary  consideration of what the common convenience and welfare
of society require. The political, soci al and cultural conditions prevailing in
ancient England or in 1834 (when Toogood  ([179] supra ) was decided) or
even 1983 (when Blackshaw  ([171] supra ) was decided) had by 1999 (the
year in which Reynolds (HL)  was decided) changed to such an extent that
the law lords (in Reynolds (HL) ) considered it necessary to liberalise the
scope of the defence of qualified privilege vis-à-vis  the communication of
matters of public interest by the media. Significantly, in Jameel  ([169]
supra ) at [146], Baroness Hale described the Reynolds  privilege as “a
‘different  jurisprudential creature’ from the law of privilege” [emphasis
added] (see also similar pronou ncements by Lord Hoffmann (Jameel
at [50]) and Lord Phillips in Loutchansky v Times Newspapers Ltd (Nos 2–5)
([207] supra ) at [35]). If (as the Appellants contend) the Reynolds  privilege
is “inherent in the common law principle stated by Toogood  in 1834” by
virtue of the Declaratory Theory, this privilege should be part of the law of
Australia and the law of New Zealand as well – that is not, however, the
case, as can be seen  from, respectively, [220] and [228] above.
244 In addition, as we pointed out earlier, the decision in Reynolds (HL)
was based on Art 10 of the European Convention and the HRA, whichcollectively elevated freedom of speech from being merely a common law
right to being “a right based on a co nstitutional or higher legal order
foundation” (at 208 per Lord Steyn) – ie, the Reynolds  privilege was the
result of, specifically, this legislative  development in the UK. It follows that
the Reynolds  privilege cannot possibly be said to have existed “from time
immemorial” ( per Brennan J in Giannarelli  ([238] supra ) at 585), and it
certainly could not have been part of  our defamation law on 16 September
1963 when freedom of speech became a constitutional right in Singapore.
(3) Reynolds (HL)
 was decided after the cut-off date of 12 November 1993 
245 Our third reason for rejecting the First Proposition relates to the
reception of English common law in Singapore. The common law of
England was received in Singapore as the general law under the Second
Charter of Justice of 1826, but it was to apply only (in the words of the
Second Charter of Justice itself) “as far as [c]ircumstances [would] admit”.
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 167
interpreted this phrase to mean “s o far as [English common law was]
applicable to the circumstances of the place, and modified in its application
by these circumstances” (at 393).
246 In 1993, Parliament decided that the common law of Singapore
should make a clean break with the common law of England (especially vis-
à-vis  the law administered in England on  mercantile issues), and enacted
Act 35 of 1993 (now the Application of English Law Act (Cap 7A, 1994 Rev
Ed) (“the AELA”)). Section 3 of the AELA, which is substantially the same
as s 3 of Act 35 of 1993, provides as follows:
Application of common law and equity .
3.—(1) The common law of England (including the principles and rules of
equity), so far as it was part of the law of Singapore immediately before
12th November 1993  [ie, the date of commencement  of Act 35 of 1993], shall
continue to be part of the law of Singapore.
(2) The common law shall continue to be in force in Singapore, as
provided in subsection (1), so far as it is applicable to the circumstances of
Singapore and its inhabitants and subject to such modifications as those
circumstances may require .
247 Implicit in s 3(1) of the AELA is th e principle that the body of English
common law which was part of the law of Singapore immediately before the
cut-off date of 12 November 1993 (“pre-AELA English common law”)
continues to be the law of Singapore, but not otherwise . After that cut-off
date, the common law of Singapore would be the common law as declared
and developed by our co urts. Furthermore, it should be noted that,
although pre-AELA English common la w continues to be part of our law
today by virtue of s 3(1) of the AELA, it continues to be in force here only
“[in] so far as it is applicable to the circumstances of Singapore and its
inhabitants and subject to such modi fications as those circumstances may
require” (see s 3(2) of the AELA). In  other words, the application of pre-
AELA English common law in Singapore both before and after  the cut-off
date of 12 November 1993 is subject to  local circumstance s (see the Second
Charter of Justice vis-à-vis  the position prior to 12 November 1993 and
s3 ( 2 )  o f  t h e  A E L A  vis-à-vis  the position after that date).
248 Given that Reynolds (HL)  was decided after 12 November 1993, the
Reynolds  privilege obviously falls outsid e the ambit of pre-AELA English
common law. Of course, if the Declar atory Theory were applicable to the
Reynolds  privilege ( ie, if the Reynolds  privilege were regarded as forming
part of English law “from time immemorial” ( per Brennan J in Giannarelli
([238] supra ) at 585)), this privilege would be part of pre-AELA English
common law. This court would then have to determine whether thisprivilege is applicable to the circumst ances of Singapore and its inhabitants,
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168 SINGAPORE LAW REPORTS [2010] 1 SLR
changed the law of defamation where the defence of qualified privilege was
concerned. But, for the reasons given earlier, the Declaratory Theory has noplace in modern jurisprudence.
(4) Parliament did enact legislation to restrict constitutional free speech
249 Another central tenet of the First Proposition is that Parliament did
not enact any law to impose restrictions on constitutional free speech when
this right came into existence in Sing apore (see sub-para (f) of [238] above).
This argument is untenable as  it stems from a fundamental
misunderstanding of the effect of Art 105(1) of the 1963 State Constitution
(now Art 162 of the Singapore Consti tution). Article 105(1) of the 1963
State Constitution read as follows:
105. (1) Subject to the provisions of th is Article and to any provision made
on or after Malaysia Day [ ie, 16 September 1963] by or under Federal law or
State law, all existing laws shall contin ue in force on and after the coming into
operation of this Constitution and all laws which have not been brought into
force by the coming into operation of this Constitution may, subject asaforesaid, be brought into force on or after its coming into operation, but all
such laws shall, subject to the provisions  of this Article, be construed as from
the coming into operation of this Constitution with such modifications,
adaptations, qualifications and exceptions as may be necessary  to bring them
into conformity with this Cons titution and the Malaysia Act [ ie, the Malaysia
Act 1963 (No 26 of 1963) (M’sia), whic h was the statute providing for ( inter
alia) Singapore to become part of  Malaysia]. [emphasis added]
From the Appellants’ point of view, this provision entailed that all existing
laws as at 16 September 1963 (including  the then existing common law of
defamation) had to be “ adjusted  … to the Constitution [ ie, the 1963
Singapore Constitution]” [emphasis ad ded] (see also sub-para (c) of [238]
above).
250 In our view, contrary to the Appe llants’ submission, Art 105(1) of the
1963 State Constitution was not simply  an “adjustment” provision. By
mandating that “all existing laws sha ll continue in force on and after the
coming into operation of this Constitu tion”, Art 105(1) in itself served as a
law-enacting provision – ie, it had the effect of an enactment which
expressly restricted the constitutional free speech enshrined in Art 10(1)( a)
of the 1963 Federal Constitution by co ntinuing in force the then existing
law of defamation (defamation law being,  by its very nature, a restriction on
freedom of speech). To adopt the wo rds used by the Appellants, Art 105(1)
of the 1963 State Constitution was the “new law made expressly … to
derogate from a constitutional right” . The imposition via Art 105(1) of this
restriction on constitutional free speech was permitted by and also
consistent with Art 10(2)( a) of the 1963 Federal Constitution (now
Art 14(2)( a) of the Singapore Constitution). In our view, this is the correct
interpretation of Art 105 of the 1963 Stat e Constitution. It follows that the
Appellants’ contention that Parliament did not enact any law whichpaginator.book  Page 168  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 169
derogated from the constitutional right in Art 10(1)( a) of the 1963 Federal
Constitution is simply wrong.
251 If the Appellants’ contention on this point were correct, it would
mean that, at the inception of the 1963 Singapore Constitution on
16 September 1963, those of the then ex isting laws (whether derived from
the common law or from statute) which restricted constitutional freespeech or the right of peaceful assembly in Art 10(1)( b) of the 1963 Federal
Constitution (now Art 14(1)( b) of the Singapore Constitution) or the right
to form associations in Art 10(1)( c) of the 1963 Federal Constitution (now
Art 14(1)( c) of the Singapore Constitution) would have become
unconstitutional, and would have re mained unconstitutional until and
unless fresh  legislation was expressly  enacted to restrict the constitutional
right in question pursuant to, respectively, Art 10(2)( a), Art 10(2)( b) or
Art 10(2)( c) (as the case might be) of the 1963 Federal Constitution (or
their corresponding provisions in, inter alia , the Singapore Constitution).
Such existing laws would include the following:
(a) s 3 of the Public Entertainments Ordinance 1958 (No 40 of
1958) vis-à-vis  the provision of public entertainment, which would
have been unconstitutional until it was re-enacted as s 3 of the Public
Entertainments Act (Cap 259, 1970 Ed) (now s 3 of the Public
Entertainments and Meetings Act (Cap 257, 2001 Rev Ed));
(b) s 6 of the Minor Offences Ordinance 1906 (No 13 of 1906) vis-à-
vis the conduct of public assemblies and processions, which would
have been unconstitutional until it was re-enacted as s 5 of the Minor
Offences Act (Cap 102, 1970 Ed) (now s 5 of the MiscellaneousOffences Act (as defined at [67] above));
(c) the law on contempt of court, which would have been
unconstitutional until ( vis-à-vis  the High Court’s power to punish for
contempt) 1 July 1993, when s 8 of the Supreme Court of JudicatureAct (Cap 322, 1985 Rev Ed, 1993 Reprin t) (now s 7 of the Supreme
Court of Judicature Act (Cap 322, 2007 Rev Ed)) came into force, and
(vis-à-vis  the Subordinate Courts’ powe r to punish for contempt)
26 January 1996, when s 8 of the Subordinate Courts Act (Cap 321,
1985 Rev Ed, 1993 Reprint) (now s 8 of the Subordinate Courts Act
(Cap 321, 2007 Rev Ed)) came into force; and
(d) various provisions of the Penal Code (Cap 119, 1955 Ed) such as
ss 191 and 193 ( vis-à-vis  giving false evidence in judicial proceedings),
s 298 ( vis-à-vis  uttering words with the deliberate intention of
wounding the religious feelings of any person), ch XXI ( vis-à-vis
criminal defamation) and s 504 ( vis-à-vis  intentional insult with the
intention of provoking a breach of  the peace), which would have been
unconstitutional until they were re-enacted in the Penal Code
(Cap 103, 1970 Ed) as, respectively, ss 191 and 193, s 298, ch XXI andpaginator.book  Page 169  Mond ay, January 4, 2010  12:22 PM

170 SINGAPORE LAW REPORTS [2010] 1 SLR
s 504 thereof (now ss 191 and 193, s 298, ch XXI and s 504,
respectively, of the Penal Code (Cap 224, 2008 Rev Ed)).
252 The Appellants’ argument, if it we re correct, would lead to such an
astonishing conclusion that the First Proposition would simply be “too
good” to be true from the viewpoint of the defendant in a defamation suit.
It would mean that all civil actions (under the common law) and criminal
prosecutions (under the relevant  statutes) for defamation since
16 September 1963 were unconstitu tional and thus unlawful.
(5) The Appellants have no locus standi  to invoke the concept of 
constitutional supremacy 
253 As part of the First Proposition, counsel for the Appellants submitted
that the Reynolds  privilege, having adjusted itself to the 1963 Singapore
Constitution at the latter’s commencemen t, is consistent with the Singapore
Constitution (see sub-para (c) of [ 238] above). Thus, “the courts have no
power either to abolish [the Reynolds  privilege] or [to] refuse to
acknowledge it because it now conforms  with the [c]onstitutional guarantee
[of freedom of speech]” (see also  sub-para (d) of [238] above).
254 We have already pointed out at [ 249]–[252] above the fallacy of this
submission. Quite apart from that, in so far as this aspect of the First
Proposition turns on the principle of the constitutional supremacy ofconstitutional free speech over protec tion of reputation under defamation
law, it is a non-starter because constitutional free speech in Singapore is
conferred on Singapore citizens  only (see Art 14(1)( a) of the Singapore
Constitution). The Appellants cannot invoke the argument set out in thepreceding paragraph as Art 14(1)( a) does not apply to non-citizens (see
Davies  ([140] supra ) at [110] and Dow Jones Publishing Co (Asia) Inc v AG
[1989] 1 SLR(R) 637 at [52] vis-à-vis  Art 14(1)( a) of the Constitution of
Singapore (1985 Rev Ed)).
255 The Appellants sought to overcome this hurdle by submitting that, in
the present case, the distinction between citizens and non-citizens is of little
significance for two reasons, namely:
(a) First, the Disputed Words came  from an interview with CSJ,
who, as a citizen of Singapore, is entitled to invoke constitutional freespeech under Art 14(1)( a) of the Singapore Constitution. Since the
Article merely “fully, fairly and disinterestedly reported [what CSJ
and the Respondents said] in th eir respective allegations and
responses” ( per Simon Brown LJ in Al-Fagih  ([208] supra ) at [52]),
the neutral reportage defence (whi ch, as mentioned earlier, is an
offshoot of the Reynolds  privilege) applies to the publication of the
Article. To hold otherwise would be  tantamount to denying CSJ his
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 171
(b) Second, “the common law of defamation knows [of] no
discriminatory rule which shifts only for citizens”.
256 In our view, both of the above submissions have no merit. With
regard to the first submission, our ruling that the Reynolds  privilege is not
currently part of our common law make s it impossible for the Appellants to
invoke the neutral reportage defence as it  is an offshoot of that privilege. In
any case, even if the neutral report age defence were part of our common
law, it is questionable whether the Appellants can avail themselves of this
defence in the present case. This is because the protection afforded by theneutral reportage defence “will be lost if the [defendant] adopts the report
and makes it his own” ( per Ward LJ in Roberts  ([210] supra ) at [61]). In this
regard, it is significant that the Ju dge found that “[t]he Article convey[ed]
the message that the views expressed [were] those of HR” [emphasis added]
(see the Judgment at [227]).
257 As for the second submission, it  is irrelevant because, as just
mentioned at [254] above, Art 14(1)( a) of the Singapore Constitution
expressly provides that only Singap ore citizens are entitled to enjoy
constitutional free speech. As non-citizens, the Appellants enjoy only
common law free speech. In Sing apore, this common law right does not
presently include the Reynolds  privilege (unless this court decides to adopt
it as part of our law) for the reason s given earlier (see [240]–[248] above).
258 For all of the above reasons, the First Proposition is rejected. We
should add as an aside that, even if the First Proposition were accepted, the
Appellants are (so it appears to us) unlikely to be able to successfully invoke
the Reynolds  privilege as a defence because it does not seem that they would
satisfy the “responsible journalism” te st. To mention just a few of the
Reynolds  factors by way of illustration:
(a) the allegations of ( inter alia ) corruption and abuse of power
made against the Respondents in th e Article were extremely serious
(see the first Reynolds  factor);
(b) there was, as we pointed out earlier at [171] above, no urgency
to publish the Article (see the sixth Reynolds  factor); and
(c) the Appellants did not seek th e Respondents’ comments on the
NKF Saga, which formed the fulcrum of the Article, before publishing
the Article and, naturally, the Art icle (especially paras 10–13 thereof,
which constituted the part where “the sting [was] carried” (see the
Judgment at [227])) did not contain the gist of the Respondents’ side
of the story vis-à-vis  that issue (see the seventh and eighth Reynolds
factors).
We should add that, in relation to th e last-mentioned point, the Appellants
argued that they had acted responsibl y in giving the Respondents a right of
reply after  the publication of the Article. With respect, this argument is apaginator.book  Page 171  Mond ay, January 4, 2010  12:22 PM

172 SINGAPORE LAW REPORTS [2010] 1 SLR
non-starter in the circumstances of this  case: if it were accepted, it would
undermine the “responsible journalism” test completely. We now turn tothe Second Proposition.
The Second Proposition
259 The Second Proposit ion is that, if the Reynolds  privilege (and its
offshoot, the neutral reportage defenc e) is not currently part of our
common law, this court sh ould declare it to be such; on this basis, the
Appellants have a defence to the De famation Suits. The Appellants have
advanced the following arguments in  relation to this proposition:
(a) First, the Reynolds  privilege is a natural development of the
traditional qualified privilege defence first enunciated in Toogood
([179] supra ) in 1834. It does not stem from the growth of human
rights jurisprudence in the European Union or England.
(b) Second, freedom of speech is guaranteed by Art 14(1)( a) of the
Singapore Constitution. If this right is not given effect by recognising
the Reynolds  privilege as part of our law, that will diminish
Singapore’s democratic credentials and make a mockery of
Art 14(1)( a).
(c) Third, the Government has accepted that there should be more
accountability and transparency in th e political system by taking steps
to, inter alia :
(i) increase the number of Non-Constituency Members of
Parliament and institutionali se the Nominated Member of
Parliament scheme; and
(ii) amend the Films Act (Cap 107, 1998 Rev Ed) by lifting a
blanket ban on party political films (see the Films (Amendment)Act 2009 (Act 13 of 2009)).
These changes are intended to enco urage democratic participation in
the political affairs of Singapore, and the courts should follow suit by
adopting the Reynolds  privilege.
(d) Fourth, the Reynolds  privilege should be adopted for the
“modern convenience and welfare of Singapore society” because:
[Singapore’s] place in the world and the region as a centre for
international business and tourism makes its governance a matter of
public interest to the local and regional media, which have a
professional duty and responsibility to their readers, in Singapore andelsewhere in Asia, to cover politi cal developments in this country inter
alia by the normal methods of inte rviewing politicians – oppositionpaginator.book  Page 172  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 173
politicians as well as government politicians. Readers in Singapore and
elsewhere are legitimately interested in such interviews.
(e) Fifth, if the Reynolds  privilege, which is “acknowledged in every
leading court in the [C]ommonwealt h”, is not recognised by the
Singapore courts, it:
… could well lead foreign courts to refuse to enforce Singapore libel
judgments, because they would be reached on a basis that is
antipathetic to free speech as prot ected by the comm on law elsewhere.
This would hardly be in the interest of defamed Singaporeans.
Our decision on the Second Proposition
260 Although the Appell ants cited Art 14(1)( a) of the Singapore
Constitution in support of their case on the Second Proposition, it is
implicit (so it appears fr om their other arguments above) that they realise
the basic flaw in their argument that the Reynolds  privilege should be
adopted as part of Singapore’s defama tion law. The flaw, which we dealt
with earlier at [198]–[199] above, is that the Reynolds  privilege was
developed to give effect to the Convention right of free speech as a higherlegal order right (compared to protection of reputation). Presumably
because they recognise th is flaw, the Appellants have pitched their case on
the premise that the Reynolds  privilege is a natural development of the
traditional qualified privilege defenc e at common law, unaffected and
uninfluenced by the Europe an Convention and the HRA.
261 This premise is misconceived. It is clear that the Reynolds  privilege is
not a natural common law development, but was instead brought about by
the European Convention (specifi cally, Art 10 thereof) and the HRA
(specifically, s 12 thereof). This can be seen from the judgment ofLord Nicholls in Reynolds (HL)  ([20] supra ) at 200 (reproduced at [196]
above), where he stated:
My starting point is freedom of expression. … Under section 12 of the [HRA]
… the court is required, in relevant case s, to have particular regard to the
importance of the right to freedom of expression. The common law is to bedeveloped and applied in a manner consis tent with article 10 of the European
Convention … and the court must take into account relevant decisions of the
European Court of Human Rights ([see] sections 6 and 2 [of the HRA]) . To be
justified, any curtailment of freedom of expression must be convincingly
established by a compelling counterv ailing consideration, and the means
employed must be proportionate to the end sought to be achieved. [emphasis
added]
262 Similarly, Lord Steyn said in his judgment ( Reynolds (HL)
at 207–208):
[T]he [HRA], which will incorporat e the [European] Convention into
[England’s] legal order, is on the statute book. And the Government has
announced that it will co me into force on 2 Octob er 2000. The constitutionalpaginator.book  Page 173  Mond ay, January 4, 2010  12:22 PM

174 SINGAPORE LAW REPORTS [2010] 1 SLR
dimension of freedom of expression is reinforced. This is the backcloth
against which the present appeal must be considered. It is common ground
that in considering the issues befo re the House, and the development of
English law, the House can and should act on the reality that the [HRA] will
soon be in force.
taxonomy against which the question before the House must be considered.The starting point is now the right of freedom of expression, a right based on a
constitutional or higher legal order foundation. Exceptions to freedom of
expression must be justified as being necessary in a democracy. In other words,freedom of expression is the rule and regulation of speech is the exception
requiring justification . The existence and width of any exception can only be
justified if it is underpinned by a pressing social need. These are fundamentalprinciples governing the balance to be  struck between fr eedom of expression
and defamation.
263 The Appellants’ argument flies in the face of the above statements by
Lord Nicholls and Lord Steyn. It is evident that Reynolds (HL)  was decided
against the backdrop  of “[t]he new landscape” (at 208 per Lord Steyn) of a
new legal order that transformed common law free speech as it stood prior
to Reynolds (HL)  into “a right based on a constitutional or higher legal
order foundation” (at 208), with the result that (at 208):
The starting point is now the right of freedom of expression  … Exceptions to
freedom of expression must be justifie d as being necessary in a democracy. …
[F]reedom of expression is the rule and regulation of speech is the exception
requiring justification . [emphasis added]
This development impelled the English courts to strike a new balance
between the competing interests of freedom of speech (or, to be more
precise, the Convention right of free speech) and protection of reputation.
The solution conceived by the House of Lords in Reynolds (HL) , which was
“based … on a ‘liberalising intention’” ( per Lord Carswell in Seaga  ([177]
supra ) at [10]), was to attach qualified privilege to the publication of
matters of public interest (by the media in the case of Reynolds (HL) ) which
the public had the right to know of, provided that the “responsible
journalism” test was satisfied.
264 Against this backdrop, the short and simple rebuttal to the Second
Proposition is that the Reynolds  privilege cannot be declared to be part of
our common law on the specific ground advanced by the Appellants, viz,
that it is a purely common law development. As we have just mentioned,this privilege is based on a legal order which is peculiar to England. If the
Reynolds  privilege is to be adopted as part  of our law, it will have to be
adopted on the basis that the freedo m of speech enshrined in Art 14(1)( a)
of the Singapore Constitution is likewise “a right based on a constitutional
or higher legal order foundation” ( per Lord Steyn in Reynolds (HL)  at 208).paginator.book  Page 174  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 175
The Appellants cannot, however, make such an argument because, as we
pointed out at ( inter alia ) [254] above, constitutional free speech in
Singapore is limited to Singapore citi zens only. The Second Proposition is
therefore rejected in so far as the Appellants  are concerned.
Whether the rationale behind the Reynolds  privilege applies to Singapore 
citizens 
265 The above conclusion is not, however, the end of the matter for
Singapore citizens . The rationale  behind the Reynolds  privilege (“the
Reynolds  rationale”) – viz, that freedom of speech is “a right based on a
constitutional or higher legal order foundation” ( per Lord Steyn in
Reynolds (HL)  at 208) and, thus, “freedom of  expression is the rule and
regulation of speech is the exception requiring justification” (at 208) – is
equally relevant to our citi zens because of Art 14(1)( a) of the Singapore
Constitution (in jurisprudential theory , the right of free speech set out in
Art 14(1)( a) is of a higher legal order than the Convention right of free
speech in England as the Singapore Cons titution is expressly declared (in
Art 4) to be the supreme law of the land).
(1) The key question
266 The crucial question vis-à-vis  Singapore citizens (which we shall
hereafter refer to as “the key question”) is whether or not, in the context of
publication of matters of public interest, the Reynolds  rationale ought to
apply so that (to paraphra se Lord Steyn’s words in Reynolds (HL)  at 208)
constitutional free speech becomes the rule and restrictions on this right
become the exception. This question has not hitherto been decided by this
court. In this regard, we should poin t out that this court’s decisions in JJB v
LKY (1992)  ([19] supra ) and Aaron  ([20] supra ) do not amount to a
rejection of the Reynolds  rationale as the Reynolds  privilege had yet to come
into existence then. Further, although Belinda Ang J rejected the Reynolds
privilege in Lee Hsien Loong (HC)  ([32] supra ), this court did not rule on
that particular point when deciding (in Lee Hsien Loong (CA)  ([32] supra ))
whether to grant CSJ an extension of time to appeal against Belinda Ang J’s
decision.
267 The key question is not a live issue in the present appeals as far as the
Appellants are concerned because, as non-citizens, they are not entitled toenjoy constitutional free speech in Singap ore. Be that as it may, we think it
is desirable for us to outline some of the considerations that may be relevant
for our courts should they be called on to determine this question in future.
Indeed, this question is likely to be raised again in a future case (just as it
has been raised, albeit inappropriatel y, in the present case). Further (and
more importantly), freedom of speech is one of the fundamental liberties
that the Singapore Constitution guarantees our citizens so as to enable them
to express their views on matters of pu blic interest. To reiterate, the keypaginator.book  Page 175  Mond ay, January 4, 2010  12:22 PM

176 SINGAPORE LAW REPORTS [2010] 1 SLR
question is, in essence, this: should  our courts shift the existing balance
between constitutional free speech and protection of reputation in favour of
the former where the publication of matters of public interest is concerned?
If the answer is “yes”, the next question is: how should this change be
effected? Should the prevailing balance be altered by adopting the
“responsible journalism” test prescribed in Reynolds (HL)  or a variation of
it, or by adopting some other method that does not necessarily exempt the
defendant from liabilit y for defamation (see, eg, [297] below)?
268 We should at this juncture emphasise three points. First, the
considerations which we shall discuss below (at [273]–[285]) are not an
exhaustive list of the factors which our courts should take into account in
the event that they are called on to decide the key question; there may be
other factors that ought to be consider ed as well, depending on the facts and
circumstances of the case at hand. Se cond, the key question concerns the
specific context of publication of ma tters of public in terest, especially
matters concerning public figures and political issues. Third, the key
question affects Singapore citizens  only. It has no relevance to non-citizens
(such as the Appellants) because the makers of our Constitution did not
think it proper or wise to confer constitutional free speech on non-citizens,
who have no stake in our country.  Non-citizens do, however, enjoy
common law free speech in Singapore,  and they are entitled to express
themselves freely subject only to the ordinary laws of the land, including the
law of defamation. Any development of our common law of defamation
based on “a ‘liberalising intention’” ( per Lord Carswell in Seaga  ([177]
supra ) at [10]) will only affect Singapore citizens.
(2) Some considerations relevant to the key question
269 In determining whether the key question should be answered in the
affirmative or the negative, our courts in essence have to decide how the
balance between constitutional free speech and protection of reputation
should be struck in this country. In this regard, they should bear in mind
two salient points.
270 First, our courts must be mindful of the extent to which they can
decide whether constitutional free spee ch should prevail over protection of
reputation. Although there is nothing in Art 14(2)( a) of the Singapore
Constitution and the Defamation Act (1985 Rev Ed) which precludes our
courts from developing the common law of defamation for “the common
convenience and welfare of society” ( per Parke B in Toogood  ([179] supra )
at 193; 1050) in keeping with Singapore’s prevailing political, social and
cultural values (save for those provisions in these two statutes which imposesuch a restriction), Art 14(2)( a) also expressly provides that it is Parliament
which has the final say on how the balance between constitutional free
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 177
271 Second, our courts must remember  that “striking [the] balance
between freedom of expression and protection of reputation calls for a
value judgment which depends upon lo cal political and social conditions ”
[emphasis added] (see Lange v Atkinson (PC)  ([226] supra ) at 261). In
making this value judgment (in the context of publication of matters of
public interest), some of the questions which our courts will have to
consider are the following:
(a) How should our courts go about deciding whether
constitutional free speech should prevail over protection of
reputation, and, if so, the extent to which the former should take
precedence over the latter? (In th is regard, the point which we have
just mentioned in the preceding paragraph is relevant as well.)
(b) How are our courts to determine which are the “local political
and social conditions” ( Lange v Atkinson (PC)  at 261) that can tell
them whether or not Singaporeans should have greater latitude toexercise constitutional free speech and less legal protection for their
reputations?
(c) What kind of evidence should  our courts take into account in
making a value judgment on this issue? ( Eg, do they need the
equivalent of a Brandeis brief to assist them in making an informed
decision on the issue?)
272 We would suggest that the following considerations are particularly
pertinent to how the key question may be answered by our courts, namely:
(a) The balance in Singapore between constitutional free speech
and protection of reputation has remained unchanged since it was
struck on 16 September 1963 when freedom of speech became a
constitutional right here.
(b) Our common law of defamation has all along been held,
implicitly, in numerous decision s of this court to strike the
appropriate balance between constitutional free speech andprotection of reputation.
(c) Unlike the legislative policy in  England (as expressed in s 12 of
the HRA), Singapore does not have any law recognising journalistic
material as being of special import ance in the context of publishing
matters of public interest. Instead, as stated at [251] above, Parliament
has enacted laws to restrict the constitutional free speech conferred byArt 14(1)( a) of the Singapore Constitution (and its predecessor
provisions), and there is no room  in our political context for the
media to engage in investigative journalism which carries with it a
political agenda.
(d) Our local political culture plac es a heavy emphasis on honesty
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178 SINGAPORE LAW REPORTS [2010] 1 SLR
especially those matters which concern the governance of this
country.
We shall now elaborate on  these considerations.
(A)T HE EXISTING  BALANCE  BETWEEN  CONSTITUTIONAL  FREE  SPEECH  AND 
PROTECTION  OF REPUTATION  IS APPROPRIATE
273 With regard to factors (a) and (b ) of the preceding paragraph, the
Reynolds  privilege is a recent development in defamation law. It was
developed with the “libe ralising intention” ( per Lord Carswell in Seaga
([177] supra ) at [10]) of giving the Convention right of free speech
preference over protection of repu tation in view of s 12 of the HRA
(reproduced at [198] above), which spec ifically requires the English courts
to have, vis-à-vis  journalistic material, “particular regard to … the extent to
which … it is, or would be, in the public interest for the material to be
published” (see s 12(4)(a)(ii) of the HRA). In contrast, constitutional free
speech under Art 14(1)( a) of the Singapore Constitution (and its
predecessor provisions) has existed in Singapore since 16 September 1963
(see [237] above). The balance between constitutional free speech and
protection of reputation was struck on  that date and, in the intervening
years, our courts have consistently held that our common law of
defamation is not incompatible with co nstitutional free speech even though
it is a restriction on the latter (see, inter alia , JJB v LKY (1990)  ([238] supra )
and JJB v LKY (1992)  ([19] supra ); see also Lee Hsien Loong (HC)  ([32]
supra ), which was decided after Reynolds (HL) ). This suggests that our
courts regard the balance struck on 16 September 1963 between
constitutional free speech and protection of reputation as still being
appropriate in the prevailing circumst ances in Singapore today. Proponents
of change must produce evidence of a change in our political, social and
cultural values in order to satisfy the co urt that change is necessary so as to
provide greater protection against th e existing law of defamation for
defendants where the publication of matt ers of public interest is concerned.
274 In this connection, as mentioned at sub-para (c) of [259] above, the
Appellants have argued that th e recent moves announced by the
Government to increase the number of Non-Constituency Members of
Parliament, institutionalise the Nomi nated Members of Parliament scheme
and relax certain restrictions un der the Films Act are political
developments designed to provide gr eater accountability and transparency
in the political system as well as to  encourage democratic participation in
adopting the Reynolds  privilege (or, at least, the Reynolds  rationale). Our
courts will have to determine whether these developments are sufficient
evidence of a change in our political,  social and cultural values that will
support deciding the key question in the affirmative ( ie, that will supportpaginator.book  Page 178  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 179
applying the Reynolds  rationale to our citizens in the context of publication
of matters of public interest).
(B)T HE MEDIA ’S ROLE  IN OUR SOCIETY
275 With regard to factor (c) of [272]  above, s 12(4) of the HRA reflects
the especial importance which British so ciety places on “the role discharged
by the media in the expression an d communication of information and
comment on political matters” ( per Lord Nicholls in Reynolds (HL)  ([20]
supra ) at 200). As Lord Nicholls elaborated ( Reynolds (HL)  at 205):
[T]he court should have particular re gard to the import ance of freedom of
expression. The press discharges vital functions as a bloodhound as well as a
watchdog . The court should be slow to conclude that a publication was not in
the public interest and, therefore, the public had no right to know, especially
when the information is in  the field of political discussion. Any lingering
doubts should be resolved in favo ur of publication. [emphasis added]
Similarly, Lord Cooke of Thorndon ob served that s 12 of the HRA as a
whole ( Reynolds (HL)  at 224):
… is inspired by the pu rpose of ensuring a due measure of media freedom.
What are significant in the presen t context are the references to journalistic
material  and especially to the extent to which it is, or would be, in the public
interest for the materi al to be published . … The common law of qualified
privilege should evolve in harmony with  that legislative approach. [emphasis
added in bold italics]
In a similar vein, Lord Bingham stated in Jameel  ([169] supra ) at [18] that
“[f]reedom to publish free of unju stifiable restraint must indeed be
recognised as a distinguishing feature  of the sort of society which the
[European] Convention seeks to promote”.
276 It is also important to note that , in England, media freedom includes
freedom for the media to engage in “investigative journalism” (see
Reynolds (HL)  at 200). This can be seen fr om Lord Nicholls’ comment that
(at 200):
[O]ne of the contemporary functions of the media is investigative journalism.
This activity, as much as the traditional activities of reporting and
commenting, is part of the vital role  of the press and the media generally.
277 In contrast, we do not have a law directing the courts to have special
regard, where journalistic materials are concerned, to the extent to which it
is or would be in the pu blic interest for the materials in question to be
published ( cf s 12(4)(a)(ii) of the HRA). F urthermore, as counsel for the
Respondents pointed out to us, in our political context, the notion that
“[t]he press discharges vital functions as … a watchdog” ( per Lord Nicholls
in Reynolds (HL)  at 205) is not accepted. Th e media has no special role
beyond reporting the news and giving its views on matters of public interest
fairly and accurately. This can be seen from the following extract (cited bypaginator.book  Page 179  Mond ay, January 4, 2010  12:22 PM

180 SINGAPORE LAW REPORTS [2010] 1 SLR
the Respondents’ co unsel) of a remark made by the then Prime Minister,
Mr Goh Chok Tong (“Mr Goh”), in Asiaweek  (3 December 1999):
If things are wrong, the media can report it . But the watchdog – meaning that
[the media] can investigate every matter, espousing [its] own views and setting[its] own agenda – I would not agree with that . If you want to set up a political
agenda, then you have to be in the po litical arena. Otherwise you don’t have
the accountability and responsibility of  looking after the place. We have got
to face the people. If we misgovern, they will chase after us. Our head will be
on the chopping block. The media’s head is not on the chopping block.
In this regard, we also note the following comments on the role of the local
media by Dr Lee Boon Yang (the then Minister for Information,
Communications and the Arts) at a lunch gathering of the Singapore Press
Club on 12 November 2003 (see <http:/ /app.mica.gov.sg/Default.aspx?tabid
=79&ctl=Details&mid=540&ItemID= 586> (accessed 17 September 2009)):
The local media’s role is to report the news accurately, factually and
objectively  for Singaporeans. …
…
… [It is] inappropriate … for the media to  editorialise in its reporting of the
news or to report the news with a twist just to be different. Doing so will
c o n f o u n d  r e a d e r s  a s  t o  t h e  i n t e n t  a n d  i m p a c t  o f  t h e  i s s u e s  b e i n g  r e p o r t e dupon.
278 In short, the media’s role in Singapore has hitherto been and
continues to be limited to what Lord Nicholls referred to in Reynolds (HL)
as “the traditional activities of reporting and commenting” (at 200). Our
political context therefore militates against  applying the Reynolds  rationale
to extend the scope of the traditional qualified privilege defence where the
publication of matters of public in terest is concerned. The media can,
however, as Mr Goh acknowledged, report  on “things [that] are wrong” (for
instance, where there is corruption in the Governme nt). When “things are
wrong” in relation to matters that affect the way in which the State is
governed, citizens obviously have a right to know about what has gonewrong. It also goes without saying that Mr Goh’s statement that the media
can report on “things [that] are wrong” does not mean that the media is free
to publish defamatory statements.
(
C) OUR LOCAL  EMPHASIS  ON HONESTY  AND INTEGRITY  IN PUBLIC  DISCOURSE  
279 With regard to factor (d) of [272] above, in Reynolds (HL) , the House
of Lords accepted that qualified privilege should not attach to the
publication of defamatory statements which, because they are false , have no
political, social or cult ural value. Lord Nicholls explained that this was
because (at 201):paginator.book  Page 180  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 181
Reputation is an integral and important part of the dignity of the individual.
It also forms the basis of many decisi ons in a democratic society which are
fundamental to its well-be ing … [I]t should not be supposed that protection
of reputation is a matter of importance only to the affected individual and his
family. Protection of reputation is conduciv e to the public good. It is in the
public interest that the reputation of  public figures shou ld not be debased
falsely . [emphasis added in italics and bold italics]
280 In American jurisprudence on free dom of speech, one of the strongest
arguments for tolerating defamation is the “marketplace of ideas rationale”
(see Marin Roger Scordato, “The In ternational Legal Environment for
Serious Political Reporting Has Fundamentally Changed: Understanding
the Revolutionary New Era of Engl ish Defamation Law” (2007) 40 Conn
L Rev 165 (“Scordato’s article”) at 186), viz, the theory that all ideas,
opinions and views must be allowed to compete in the marketplace, where
truth will ultimately prevail to the eventual benefit of society (at 186–189).
This is a very powerful argument in  favour of allowing a great degree of
latitude vis-à-vis  freedom of speech, but it has not been accepted in
England, Australia, New Zealand or other Commonwealth jurisdictions as
a sufficient legal basis for allowing the publication of defamatory views oropinions.
281 In Reynolds (HL) , Lord Cooke discussed the “marketplace of ideas”
rationale (at 218) in these words:
[I]t was eloquently said by Judge Learned Hand in United States v Associated
Press  (1943) 52 F Supp 362, 372 that the First Amendment [w hich prohibits
the US legislature from enacting any law which forbids or abridges the free
exercise of ( inter alia ) freedom of speech]
presupposes that right conclusions ar e more likely to be gathered out
of a multitude of tongues, than through any kind of authoritative
selection. To many this is, and alwa ys will be, folly; but we have staked
upon it our all.
In like vein was the pronouncement of Holmes J, dissenting but with the
concurrence of Brandeis J, in Abrams v United States  (1919) 250 US 616, 630,
‘the best test of truth is the power of the thought to get itself accepted in thecompetition of the market’.
Lord Cooke went on to caution against a wholesale embrace of the
marketplace of ideas rationale in th e  a r e a  o f  d e f a m a t i o n  l a w .  H e  s a i d
(at 218):
Such observations are most naturally a pposite … to freedom to express ideas
and convey news. Neither of the cases in which they were made was a
defamation case. It would be dangerous to stretch them out of context . As to
defamatory allegations of fact, even in the United Stat es the opinions of
jurists differ on the extent to which the collectively cherished right of freespeech is to be preferred to the indi vidually cherished right to personal
reputation; and it is certain that neither in the United Kingdom norpaginator.book  Page 181  Mond ay, January 4, 2010  12:22 PM

182 SINGAPORE LAW REPORTS [2010] 1 SLR
anywhere else in the Commonwealth could it be maintained that the people
have knowingly staked their all on un fettered freedom to publish falsehoods
of fact about political matters, provided only that the writer or speaker is notactuated by malice. It would be a mistake to assume that commitment to the
cause of human rights must lead to a major abandonment of established
common law limitations on political allegations of fact . [emphasis added]
282 It seems to us that, while the competition of ideas in the marketplace
can lead to advances in science and knowledge to the benefit of mankind(which would justify allowing the fu llest scope for exercising freedom of
speech), this applies largely in the sphere of statements relating to ideas or
beliefs which cannot or have yet to be proved with scientific certainty to be
either true or false  (eg, the belief that socialism is superior to capitalism as a
way of organising society, or that dinosaurs became extinct as a result of alarge asteroid striking the earth). Where there exist divergent ideas or
beliefs whose truth or falsity cannot or has yet to be determined with
scientific certainty, it is usually the ca se that one of these ideas or beliefs will
eventually come to be accepted by society as “true” in the sense of being the
most accurate or the most rational, wi th the others either being discarded
or falling into disfavour. Taking one of the examples which we have justmentioned, it is possible, by compar ing the economic growth of capitalist
countries and that of socialist countries over time, to ascertain whether
capitalism or socialism is the better way of organising society. From thisperspective, it is possible, and indeed  necessary, for “the competition of the
market” ( per Holmes J in Abrams v United States  250 US 616 (1919) at 630)
to sieve out the idea or belief which society deems to be “true” ( ie, the most
accurate or the most rational), and so ciety derives value from this process.
283 In contrast, it is questionable whether the marketplace of ideas
rationale is applicable to false statements. Such statements are (bydefinition) inaccurate and society do es not derive any value from their
publication as “there is no in terest in being misinformed” ( per
Lord Hobhouse of Woodborough in Reynolds (HL)  at 238; see also [284]
below). This is a fortiori  the case where the false statement in question is
also one which is defamatory because ( Reynolds (HL)  at 201 per
Lord Nicholls):
fundamental to its well-being …
It is one thing to falsely claim that an UFO has been spotted over the skies
of Singapore; it is quite another to fals ely assert that a person is a crook or a
charlatan, especially if that person is also a holder of public office.
284 In this regard, Lord Ho bhouse’s observation in Reynolds (HL)  as to
why the publication of defamatory fa lsehood should not be condoned is
pertinent. In commenting on the importance of the “liberty to
communicate (and rece ive) information” (at 238), he said ( ibid):paginator.book  Page 182  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 183
[I]t is important always to remember that it is the communication of
information not misinformation which is th e subject of this liberty. There is no
human right to disseminate information th at is not true. No public interest is
served by publishing or communicating misinformation . The working of a
democratic society depends on the members of that society … being
informed not misinformed. Misleading people and … purveying as factsstatements which are not true is dest ructive of the democratic society and
should form no part of such a society. There is no duty to publish what is not
true: there is no interest in being misinformed. These are general propositionsgoing far beyond the mere protection of reputations . [emphasis added]
285 Lord Hobhouse’s observation reso nates with our local political
context. In Singapore, there is no place in our political culture for making
false defamatory statements which damage the reputation of a person
(especially a holder of public office) for the purposes of scoring political
points. Our political culture places  a heavy emphasis on honesty and
integrity in public disco urse on matters of public interest, especially those
matters which concern the governance of the country. This can be seen
from the reply by the then Minister  for Law and Minister for Foreign
Affairs, Prof S Jayakumar (“Prof Jayaku mar”), to a query in Parliament on
whether the Government had responded to the allegations made in the US
State Department Singapore Country Report on Human Rights Practices1997. Prof Jayakumar said, “Singapore’s political culture … seeks to
maintain a high standard of tr uth and honesty in politics” (see Singapore
Parliamentary Debates, Official Report  (20 April 1998) vol 68 at
cols 1973–1974), and, therefore ( ibid):
If the integrity of [Singapore’s] poli tical leaders or key institutions is
questioned, Singapore leaders will not hesitate to clear their names and
protect these institutions through due process of law.
This is another important factor which our courts must bear in mind
should they be called on to decide the key question.
(3) A consequential consideration if the key question is answered in the 
affirmative 
286 If our courts answer the key question in the affirmative ( ie, if they rule
in favour of applying the Reynolds  rationale to the publication of matters of
public interest such that greater lati tude is given to constitutional free
speech at the expense of protection of reputation in this specific context),
they will have to go on to consider how the new balance between these two
competing interests should be struck. In  this regard, it would, in our view,
be helpful for our courts to bear in mind the different approaches which
other common law jurisdictions have  taken in order to give freedom of
speech precedence over protection of reputation ( cf the current approach
reflected in the Singapore Constitution, which may be regarded as a“subsidiary right” approach in that Art 14(2)( a) expressly allows Parliament
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184 SINGAPORE LAW REPORTS [2010] 1 SLR
provide against defamation). Broadly speaking, two main approaches can
be discerned.
287 First, there is the “preferent ial right” approach, under which
preference is given to freedom of spee ch over protection of reputation. The
Reynolds  privilege and the Lange v ABC  privilege (both of which were
rejected by Belinda Ang J in Lee Hsien Loong (HC)  ([32] supra ) and the
Judge in the court below) are exam ples of this approach. Under the
Reynolds  privilege, freedom of speec h takes precedence where the
“responsible journalism” test is satisfied. Under the Lange v ABC  privilege,
freedom of speech is preferred if the subject matter of the defamatory
statement in question relates to “government and political matters” (seeLange v ABC  ([173] supra ) at, inter alia , 114) and the defe ndant’s conduct
in publishing that statement is reason able within the meaning of s 22 of the
NSW Defamation Act.
288 Second, there is the “fundamental right” approach, as exemplified by
the New York Times  privilege (which was rejected by this court in JJB v LKY
(1992)  ([19] supra )) and the Lange v Atkinson  privilege (which was rejected
by Belinda Ang J in Lee Hsien Loong (HC)  as well as by the Judge in the
present case). Under this approach, freedom of speech is treated as a
fundamental right that trumps protection of reputation unless it is provedthat the defendant published the defa matory statement in question with
malice (see New York Times v Sullivan  ([215] supra ) at 279–280 vis-à-vis  the
New York Times  privilege, and s 19(1) of New Zealand’s Defamation Act
vis-à-vis  the Lange v Atkinson  privilege).
289 For completeness, we should add that there appears to be a third
approach under which freedom of speech may be preferred over protectionof reputation, namely, the “co-equal rights” approach, as exemplified by
Mosley v News Group Newspapers Ltd  [2008] EMLR 20 (“ Mosley ”), a
decision of the English High Court, and Galloway v Telegraph Group Ltd
[2006] EMLR 11 (“ Galloway ”), a decision of the English CA. This approach
differs from both the “preferential right” approach and the “fundamental
right” approach in that it treats protec tion of reputation (as an aspect of the
right to privacy under Art 8 of the European Convention) and freedom of
speech (specifically, the Convention righ t of free speech) as co-equal rights
such that the former does not automatically take precedence over the latter.Freedom of speech may, however, still prevail over protection of reputation
in a particular case if such an ou tcome is justified under the “ultimate
balancing test” ( per Eady J in Mosley  at [14]).
(4) Summary of our observations on the key question
290 To summarise our observations on the key question:
(a) A Singapore court which is called on to decide the key question
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[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 185
constitutional free speech and protection of reputation should be
shifted in favour of the former. In  considering this, the court has to
make “a value judgment” (see Lange v Atkinson (PC)  ([226] supra )
at 261) as to whether the contempora ry political, social and cultural
values in this country support such a development.
(b) If the court rules on the key question in the affirmative ( ie, if it
rules in favour of giving constitutional free speech precedence over
protection of reputation where th e publication of matters of public
interest is concerned), it will have  to go on to decide how the new
balance between these two competing interests should be struck. In
this regard, the court should note the divergent approaches adoptedby other common law courts on th is issue and decide whether any of
the existing approaches is relevant to our local conditions and
circumstances.
(5) Observations on some practica l difficulties in applying the Reynolds  
privilege and the “responsible journalism” test 
291 Before we conclude this judgment, we think it desirable to highlight,
as an integral part of our observations on the Reynolds  rationale, three main
practical difficulties in the application of the Reynolds  privilege and the
“responsible journalism” test upon wh ich it turns. These difficulties have
surfaced since the decision in Reynolds (HL) . In this connection, we note
that the Reynolds  privilege is currently “still in the process of development”
(per Lord Carswell in Seaga  ([177] supra ) at [5]) and has yet to reach its
final stage of metamorphosis.
292 First, in Jameel  ([169] supra ), Lord Hoffmann stated at [54] that the
Reynolds  privilege was “available to anyone who publishe[d] material of
public interest in any medium ” [emphasis added]. Presumably, his
Lordship meant that the privilege and the “responsible journalism” test
would apply to the publication of defamatory materials on the Internet aswell. The problem here is that there are two aspects of the Internet which
are inimical to protection of reputati on. First, the universal reach of the
Internet means that information pu blished via this medium may be
accessed by a potentially limitless audi ence, leading in turn to potentially
greater harm to the plaintiff’s repu tation. Second, information published
via the Internet is bound to be accessed by at least some sections of thepublic for whom the information in question is not a matter of public
interest (see Matthew Collins, The Law of Defamation and the Internet
(Oxford University Press, 2nd Ed, 2005) (“ Collins ”) at para 11.21). Taken
together, these two aspects of the Internet entail that, where defamatory
material is published via this medi um (as opposed to the traditional
mediums of communication), there may be  greater damage to the plaintiff’s
reputation and, yet, less reasons to allow publication of the defamatory
material concerned. The fact that information published via the Internet ispaginator.book  Page 185  Mond ay, January 4, 2010  12:22 PM

186 SINGAPORE LAW REPORTS [2010] 1 SLR
invariably accessed by at least some  persons for whom the information in
question is not a matter of public interest also complicates the court’s taskof ascertaining whether the defamatory material in question is a matter that
the public in the particular  case at hand has the right to know of, which
requirement is an essential element of the Reynolds  privilege. As noted in
Collins  (at para 11.21):
[P]ublishing material on a web page, or on a general-purpose bulletin board
with an extensive global readership, may militate against the availability of
the [ Reynolds  privilege], because the offending material will have been
p u b l i s h e d  t o  p e r s o n s  w h o  d o  n o t  h a v e  a  ‘ r i g h t  t o  k n o w ’ ,  o r  a n  i n t e r e s t  i n
receiving the information.
293 Second, Reynolds (HL)  was decided on the basis that the Convention
right of free speech should take precedence over protection of reputation.
There is, however, a discernable incipi ent recognition in England that these
two rights may in fact be co-equal  rights (see, eg, Mosley  ([289] supra )
at [10] per Eady J and Galloway  ([289] supra ) at [80] per Sir Anthony
Clarke MR). It remains to be seen whether the House of Lords too will
recognise protection of reputation as a right co-equal to the Convention
right of free speech. If the House of Lords does adopt this view as well, this
is likely to affect the evolution (and, perhaps, even the existence) of theReynolds  privilege as well as the Reynolds  rationale, although the
“responsible journalism” test will (in our view) most likely remain relevant
as a general guide for the Englis h courts in deciding whether the
Convention right of free speech or prot ection of reputation should prevail
in a particular case.
294 Third, the decision in Reynolds (HL)  has moved defamation law in the
direction of the law of negligence in that the concept of reasonable care
permeates the “responsible journalism” test (see, eg, the third and fourth
Reynolds  factors; see also Jameel  at [55], where Lord Hoffmann drew an
analogy between the standard of responsible journalism and that of
reasonable care). For the publication of  a defamatory article to satisfy the
“responsible journalism” test, the defendant must prove that he took “such
steps as a responsible journalist woul d take to try and ensure that what
[was] published [was] accurate and fit for publication” ( per Lord Bingham
in Jameel  at [32]). The degree of care that is required of the defendant is
necessarily imprecise since it depends on the facts of the particular case
concerned.
295 Notwithstanding Lord Hoffmann’s assertion in Jameel  at [55] that
“the standard of responsible journalis m is as objective and no more vague
than standards such as ‘reasonable ca re’ which are regularly used in other
branches of law”, it appears to us that what ultimately passes as responsible
journalism can be said to be subjectively  decided by the court based on the
Reynolds  factors (which are objective). As pointed out in Scordato’s article
([280] supra ), what the court effectively has to do when it applies thepaginator.book  Page 186  Mond ay, January 4, 2010  12:22 PM

[2010] 1 SLR Review Publishing Co Ltd v Lee Hsien Loong 187
“responsible journalism” test is to “e ngage in a content-based, value-laden
examination of the complained of sp eech and … ultimately determine its
social value” (at 194). Such an approa ch is unsatisfactory because (at 195):
The court must inevitably and profoundly reference the subject of the speech
against its own personal sense of social interest, priorities and seriousnewsworthiness. Such a task is  … less objective and neutral . …
Hand in hand with the greater subjec tivity and indeterminacy of the nature
of the speech test comes a greater variability in the behaviour of courts intheir application of the test. Given its nature, one could expect very significant
variability in the judgments of different co urts as to just what is and [what] is
not a matter of legitimate public interest .
In this regard, we note that, in Lange v Atkinson (CA) (No 2)  ([227] supra ),
the New Zealand CA rejected the Reynolds  privilege for the very reason that
it “appear[ed] to alter the structure of the law of qualified privilege in a way
which add[ed] to the uncertainty  and chilling effect almost inevitably
present in this area of la w” [emphasis added] (at [38]).
296 It is also pertinent to note that the impact of the Reynolds  privilege (as
well as the concept of responsible journalism upon which it rests) on the
structure of defamation law has yet to  be fully underst ood. We mentioned
earlier that the application of the “responsible journalism” test effectivelymakes malice irrelevant as a means of defeating a plea of qualified privilege
(see Loutchanksy v Times Newspapers Ltd (Nos 2–5)  ([207] supra ) at [33]
per Lord Phillips and Jameel  at [46] per Lord Hoffmann). The defences of
justification and fair comment may also become redundant in that,
although these defences can co-exist with a defence based on the Reynolds
privilege, it will generally be ea sier for a defendant who publishes
defamatory material of public interest to satisfy the “responsible
journalism” test than to successfully establish a defence of justification
and/or fair comment; thus, over time, the latter two defences may not need
to be relied on at all vis-à-vis  the publication of defamatory information of
public interest. This may in  turn spawn more cases of irresponsible
journalism being passed off as responsible journalism in the Reynolds (HL)
sense.
297 A further observation which we wish to make is that, if the Reynolds
rationale were to be applied in Sing apore in the context of publication of
matters of public interest, the new balance which has to be struck between
constitutional free speech and protection of reputation so as to give effect to
this rationale does not necessarily entail excusing or immunising the
defendant from liability where the cond itions for giving constitutional free
speech precedence over protection of reputation are satisfied. The Reynolds
rationale can equally be given effect by holding the defendant liable for
defamation but adjusting the quantum of damages payable, with the exact
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188 SINGAPORE LAW REPORTS [2010] 1 SLR
to the degree of care which the defendant has taken (or failed to take) to
ensure that what he publishes is “accurate and fit for publication” ( per
Lord Bingham in Jameel  at [32]). Such an approach has the merit of
deterring irresponsible journalism. Ther e is no reason why a defendant who
has published a defamatory statement should be allowed to get off scot-freefor injuring the plaintiff’s reputation simply because he has satisfied the
“responsible journalism” test.
Conclusion
298 Reverting to the issues which this court needs to decide in the present
appeals, we agree with and affirm the Judge’s ruling on the natural and
ordinary meaning of the Disputed Wo rds in relation to the Respondents.
We also uphold the Judge’s decision to allow LHL to amend his SOC and to
reject the Appellants’ pleaded defe nces. Accordingly, we dismiss both
appeals with costs and the usual consequential orders.
Reported by Peh Aik Hin.paginator.book  Page 188  Mond ay, January 4, 2010  12:22 PM