Of Best Friends, Bitter Foes and the Bane of sailing through a Fog

Dr Lee Wei Ling: "i will no longer write for SPH as the editors there do not allow me freedom of speech. in fact, that was the reason why i posted the article on LKY would not want to be hero-worshipped." (Facebook on 1 April 2016 at 1.07pm)

Janadas Devan: "Reading Wei Ling’s unedited writings was like sailing through a fog. The effort of turning her raw material into coherent articles — that’s what I remember most about editing Wei Ling." (Facebook on 4 April 2016 at 3.05pm and Straits Times on 5 April 2016)

Dr Lee Wei Ling is the daughter of Singapore's former Prime Minister, Lee Kuan Yew and Janadas Devan is the son of Singapore's third President, C.V. Devan Nair [1].

By now, many will be aware that following Dr Lee Wei Ling’s Facebook post on 1 April 2016, a public spat ensued between Dr Lee Wei Ling and Janadas Devan [2].  Reading their feisty online exchanges sparked off an interest in me to find out more about the relationship between their respective fathers, Lee Kuan Yew and Devan Nair.

For the most part of their lives, Lee and Nair [3] were political comrades.  But in their later years, they were bitterly suing each other in court.

Public records bear witness to a tragic tale of close cronies turning into feuding foes. When the People’s Action Party was formed on 21 November 1954, Lee and Nair were among its founding members. Nair is credited for helping to establish the Singapore National Trades Union Congress. On 23 October 1981, Nair was elected by Parliament as Singapore’s third President. 

Then on 28 March 1985, Nair resigned as President of Singapore without completing his term of office.  In 1988, Nair left Singapore for good and never came back. 

Singapore High Court: Lee Kuan Yew v Nair Devan (1988)

On 6 May 1988, Francis Seow was detained under the Internal Security Act (Cap. 143).   On 22 May 1988, Nair publicly spoke up for Francis Seow, questioning the basis for his detention without trial.  Lee, taking offence to certain parts of Nair's public statements, took swift action and sued Nair for defamation three days later on 25 May 1988.

Initially, Lee’s lawsuit cited two instances of alleged libel arising from Nair’s comments made to the media on 22 May 1988. Then on 7 April 1989, Lee added a third instance of alleged libel to his lawsuit against Nair, citing Nair’s alleged libellous comments as contained in an article written by a reporter published in The Straits Times on 23 May 1988. 

In response to this additional claim by Lee, Nair applied to Court to drag the newspaper into the fray to share the blame (if any) with him.  The newspaper protested vigorously, but the Court agreed with Nair, observing that the newspaper had made its own decision to republish Nair’s press statement. So Straits Times Press (1975) Ltd became a party to the lawsuit.  This meant that if the Court were to decide that Nair’s comments were libellous, the newspaper could be made to share liability with Nair to pay damages to Lee.

Lee’s 1988 lawsuit lasted over four years and spawned two reported interim court decisions, one on 3 September 1990 [4] and the other on 8 December 1992 [5].  As to the final outcome of that lawsuit, whether it was won, lost or discontinued, I do not know.  I have not been able to find out what happened to Lee’s 1988 lawsuit.   If anyone knows, do share.

Ontario Supreme Court: Lee v. Globe and Mail, Nair (1999)

On 29 March 1999, the Canadian newspaper, Globe and Mail published an article [6] entitled ‘Singapore Sage’ reporting on an interview with Nair.  In that article, Nair alleged that Lee had Singapore doctors slip hallucinatory drugs to Nair to make him appear befuddled.

In June 1999, Lee filed a lawsuit in Canada against Globe and Mail and Nair for defamation.

In response to Lee’s lawsuit, Globe and Mail filed their Statement of Defence, pleading the defences of justification, fair comment and qualified privilege.  Lee countered by applying to court to strike out certain parts of their Defence.  However, the Court decided [7] to dismiss Lee’s striking out application with costs.

As for Nair, he responded by filing a Counterclaim against Lee, seeking damages on the basis that Lee's lawsuit was an abuse of process. Nair argued that the real purpose of Lee's lawsuit was to silence, not only Nair, but all of Lee's critics and opposition in Singapore. According to Nair, Lee's action was part of a pattern of using the libel process to silence his critics and opposition and was "a mere stalking horse intended to further foster and continue a climate of fear and intimidation". [8]

In turn, Lee filed a Motion to have Nair's Counterclaim thrown out of court. As it turns out, the Canadian Court found merits in Nair's arguments and allowed Nair's Counterclaim to stand. Once again, Lee found his court application dismissed with costs. [9] 

Lee having failed to strike out certain parts of the newspaper’s Defence and to strike out Nair’s Counterclaim, the parties (Lee, Globe and Mail and Nair) were left to slug it out in Court in respect of Lee's defamation lawsuit, Globe and Mail’s Defence and Nair's Counterclaim.

But the legal case never got much further after that and was eventually discontinued. Nair’s mental health had overtaken him.

On 1 July 2004, Globe and Mail reported [10] that Nair had been diagnosed as suffering from early dementia that he was no longer able to give evidence in court proceedings. 

That terse report also stated that as to Nair’s allegation in the ‘Singapore Sage’ article that Lee had Singapore doctors slip hallucinatory drugs to Nair to make him appear befuddled, “Mr Nair's family has said that, having reviewed the record, there is no basis for this allegation.”

Nair passed away in Canada on 7 December 2005. He was 82.  Nair gave the best years of his life to public service in Singapore.  His final resting place is a grave in Hamilton, Canada.

by Jeannette Chong-Aruldoss

Photo by Dr Thum Ping Tjin, used here with his kind permission.

Photo by Dr Thum Ping Tjin, used here with his kind permission.

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[1] http://www.istana.gov.sg/the-president/former-presidents/mr-devan-nair

[2] http://www.todayonline.com/singapore/dr-lee-made-serious-allegation-about-my-conduct-journalist-janadas-devan

[3] http://www.istana.gov.sg/the-president/former-presidents/mr-devan-nair

[4] Lee Kuan Yew v Nair Devan [1990] SGHC 59 (3 September 1990)

[5] Lee Kuan Yew v Nair Devan (Straits Times Press (1975) Ltd and another, third parties) [1992] SGHC 303

(8 December 1992)

[6] http://www.singapore-window.org/sw99/90329gm.htm

[7] Lee v. Globe and Mail, decision of Swinton J on 30 January 2001 at:

 http://caselaw.canada.globe24h.com/0/0/ontario/superior-court-of-justice/2001/01/30/lee-v-globe-and-mail-2001-28035-on-sc.shtml

[8] For a report on Nair’s counterclaim against Lee, see this link: https://web.archive.org/web/20061101004557/http://www.sgmlaw.com/PageFactory.aspx?PageID=252

[9] The Canadian Court's written judgment dated 7 January 2002 is at: https://web.archive.org/web/20061101024125/http://www.sgmlaw.com/AssetFactory.aspx?did=38

[10] http://www.singapore-window.org/sw04/040701gm.htm

S$6,063 – the price of justice for Jolovan Wham

On 22 December 2015, the High Court handed down a judgment which clarified the legal effects of a police warning.  Wham Kwok Han Jolovan v AG [1] ("Jolovan's case") clarified that police warnings are merely expressions of opinion that the recipients had committed an offence, but do not otherwise have any legal effects on its recipients.

The judgment was the outcome of a Judicial Review application by Jolovan Wham to quash (i.e. void) a police warning administered to him.  As the Court held that there was no decision in the warning administered to Jolovan for the court to quash, the Court dismissed Jolovan's application with costs. 

On 1 February 2016, the High Court ordered Jolovan to pay S$6,063 in costs to the Attorney-General ("AG") for his failed court application. The amount was arrived at after discounting 20% off the amount sought by the AG, to take into account aspects of the process by which the warning was issued.

I am disappointed with the AG for seeking costs against Jolovan and with the Court's decision to order Jolovan to pay S$6,063 in costs to the AG.

Before Jolovan’s Case

The practice of issuing warnings in lieu of prosecution is not a creature of statute or regulated by legislation. Before the decision in Jolovan's case, the implication of receiving a police warning was mired with uncertainty. 

In a seminal article by lawyer Tan Hee Joek "Be Warned of the Stern Warning" published in the Law Gazette in 2013[2], the author said:

"... local cases have shown that a stern warning may still be relevant in judicial proceedings as a criminal antecedent for sentencing and for related civil claims". 

The author cited five reported cases in which the prosecution had brought the accused’s prior warnings to the attention of the sentencing judge.  One of those cases was PP v Tan Hiang Seng[3], which I shall say more about. The author concluded that the five cases showed that police warnings can have adverse effects for the recipients. 

PP v Tan Hiang Seng

Of the five cases cited by Tan Hee Joek in his 2013 article, three of them were referred to by Justice Woo Bih Li, the judge in Jolovan's case. 

Of the three cases, Justice Woo found that in two of them, the court did not actually take into account the previous warnings when sentencing the accused.  But Justice Woo agreed, and AG conceded, that in PP v Tan Hiang Seng, the court certainly did take into account a prior warning to the accused while considering the issue of sentence.  On this point, Justice Woo stated in his judgment that a court is not entitled to treat a warning as an antecedent or as an aggravating factor since it has no legal effect and is not binding on the recipient.

I looked up the case of PP v Tan Hiang Seng. In pressing for a custodial sentence, the prosecution in that case informed the court that the accused had been given a stern warning for taking his mother’s identity card without her permission. The judge in that case said in her grounds for sentencing: 

"... the accused had taken his mother’s identity card without her permission. This was itself an offence of theft. He was given a stern warning by the police for this. I considered this an aggravating factor."

The judge sentenced the accused to 4 weeks' imprisonment and a fine of $2,000.

PP v Tan Hiang Seng is a clear instance where the court when sentencing an accused, had considered the fact that the accused had been warned by the police to be an aggravating factor.

The AG can't run away from PP v Tan Hiang Seng.  Small wonder that in Jolovan's case, Justice Woo noted:

“… the AG submitted that it would be wrong for a court to take into account a prior warning, whether as an antecedent or not, for the purpose of sentencing and he stressed that the prosecution would not in future mention a prior warning to a court for the purpose of enhancing a sentence."

Hence, the AG admitted that the prosecution’s practice of informing the sentencing judge of prior warnings was wrong and that they would stop doing that in future. 

This means that the prosecution in PP v Tan Hiang Seng (and in each of the 4 other cases cited by Tan Jee Joek) erred by telling the court about the accused’s prior warning; and the judge in PP v Tan Hiang Seng erred in considering that factor when sentencing the accused in that case. 

Looks like poor Mr Tan Hiang Seng's sentence was unfairly enhanced. Now that Jolovan’s case has brought those mistakes out in the light, is there justice for Mr Tan Hiang Seng? Would the AG take the initiative to review Mr Tan Hiang Seng's sentencing? To right the wrong, to set the record straight? Or is all that water under the bridge?

S$6,063 to the AG

Mr Tan Hiang Seng's case is long over, but Jolovan's case is still live, as he has now been ordered to pay the AG the sum of S$6,063 for “failing" his court application.

As Tan Hee Joek’s article shows, before Jolovan's case, there were concerns that police warnings could have adverse implications for the recipients.  Given the prevailing legal opinion, we cannot fault Jolovan for being motivated to apply to Court to quash the police warning.  

Apart from uncertainty over the legal implications of police warnings, the circumstances faced by Jolovan make the cost order imposed him seem unfair.

Concerning Jolovan's visit to the police station on 25 March 2015, Justice Woo declared at paragraph 1 of his Judgment that "it was not even clear whether a warning was administered".  Jolovan asked for a copy of the Notice of Warning, but his request was denied. Justice Woo also criticized the wording of the Notice of Warning and called it "poorly drafted".

On 4 May 2015, Jolovan called the police to enquire about the outcome of the investigations against him. The police told Jolovan that a warning had been administered to him on 25 March 2015. When Jolovan tried to engage them further, he was stone-walled. On 9 May 2015, Jolovan wrote to the police and protested the issuance of a warning against him. He did not receive a reply. On 23 May 2015, he wrote to the Attorney-General’s Chambers to similarly protest the issuance of the warning against him.  Again, he did not receive a reply.  Jolovan then went ahead to file his application for judicial review.

Let's step into Jolovan's shoes.  How the police engaged Jolovan - the way he received his warning and how he was subsequently stone-walled - left much to be desired.  In Singapore, we do not have any independent commission or body which can bridge the gap between the police and civilians at the receiving end of police actions.  What else could someone in Jolovan's shoes have done?  Jolovan has no way to protest the issuance to him of the warning.  Jolovan's only recourse was to seek the Court's help by applying for Judicial Review.

Unfortunately, Jolovan has now been penalised with a cost order of S$6,063. The decision to impose the cost order sends the ominous signal that Justice is only available to those who can afford it.  Often, for someone aggrieved by a decision made by a state agency, application to Court for Judicial Review is the only recourse.  If he wants to apply to Court for Judicial Review, he had better make sure he has the requisite financial means to see the application through.  Jolovan's experience shows that applying to court for help carries the risk of having to pay costs to the AG.

Loser Pays

The legal basis for ordering costs against Jolovan is the principle "costs follow the event".  On this principle, the loser has to pay the winner's legal costs.  This principle works well most of the time. But there is a strong case to suspend this principle when the applicant is an aggrieved civilian seeking the Court's help against the heavy hand of state action.  Without protection from adverse cost orders, no one will dare to complain against state action, for fear of being slapped with cost orders in the event that the Court upholds the decision taken by the state agency.

In Jolovan's case, the Court regarded him as having lost his bid, and therefore he has to pay costs to the other side, which in his case, is the AG.  Had the AG decided not to seek a cost order against Jolovan, there will be no issue of costs to decide.  For Jolovan's case, the AG in their wisdom decided to seek costs from Jolovan.  As to why the AG so decided, I do not know, but they did.         

But did Jolovan really "lose"?  Jolovan's application was to quash the warning he received. In the end, the Court decided that since police warnings are not "decisions" but merely opinions, there was nothing to quash. The logic being that the Court cannot quash something which cannot be quashed. 

But wait - if there is nothing to quash, can it be said that Jolovan's application to quash the police warning has failed?  Jolovan’s case is not one in which the Court upheld a decision, but one in which there was no decision to affirm or quash.  But it seems that no decision to quash means that Jolovan’s application has failed and his case is lost.       

Public Interest

While Justice Woo has deemed Jolovan to have "lost" his case, Jolovan has won for the general public a much-needed clarification on the legal effects of police warnings.  Justice Woo razed 20% off the amount sought by AG, to take into account the AG’s various mis-steps.  Justice Woo should have given Jolovan a much higher discount to recognise the public interest elements in Jolovan's case.

The principle that the loser has to pay the winner's legal costs should be suspended for someone in Jolovan's shoes, a civilian who has no other avenue that to seek the court's help for his predicament.  Jolovan’s case is an application for Judicial Review by an individual who is aggrieved by a certain action taken by the police against him. Such cases have a strong element of public interest as they concern the interaction between individual rights and state powers.

In cases where there are strong public interest elements, the civilian applicant should be given protection from adverse cost orders. Such protective measures operate as safeguards against abuse of state powers.  Without protection from costs, aggrieved individuals on the receiving end of state actions, will be inhibited from bringing their grievances to court, for fear of cost implications.   

It should be noted that when an individual contends with the state, it is a David vs Goliath scenario.  The individual is handicapped by the limits of his personal resources. The state has the armada of the AGC to avail of.

Appeal?

Jolovan is entitled to appeal against the S$6,063 cost order.  But I can fully understand if Jolovan decides not to appeal.  For if Jolovan appeals, he risks being slapped with a further cost order in the event that the Court decides to uphold the S$6,063 costs order.  

S$6,063 is already a lot of money for an individual to fork out.  To take on further exposure to legal costs would be daunting.  It will certainly be safer for Jolovan to cough up the dough and be grateful for the clarification given by the court that the warning he received has no legal effect.    

Jolovan’s case is a cautionary tale that Justice comes with a price tag. 

Jeannette Chong-Aruldoss

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[1] [2015] SGHC 324 at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf

[2] http://www.lawgazette.com.sg/2013-09/843.htm

[3] [2012] SGDC 484