The 7 Nov 2014 judgment of High Court Judge Lee Seiu Kin held that Roy Ngerng had defamed LHL when he conveyed ‘the natural and ordinary meaning that … the Prime Minister of Singapore and the Chairman of
GIC, is guilty of criminal misappropriation of the monies paid by Singaporeans to the CPF’. But is the judgment sound?
Judge Lee Seiu Kin started by saying that the title of Roy’s article ‘Where Your CPF Money Is Going: Learning From The City Harvest Trial’ sought to draw an association or a comparison between the CHC case and the governance of the CPF. But surprisingly, Judge Lee did not explain how he reached this conclusion.
Neither the title or the body of the article uses the word ‘governance’ at all. The title ‘Where Your CPF Money Is Going’ could quite naturally be interpreted as comparing the movement of CHC funds into different entities Xtron and Firma with the movement of CPF funds into different entities like SGS, MAS, Temasek and GIC. That is not defamatory in my view.
At paragraph 43 of the judgement by Judge Lee said:
‘The Article starts by informing the reader that the founder of the CHC (ie. Kong Hee) and his five deputiies were ‘accused of misusing millions of church building funds’, and reproducing a chart that was ‘created to show the relations of Kong Hee and his five deputies, and the funds that they have misappropriated’ (‘the CHC Chart’).
The Article then goes on to state that ‘something bears an uncanny resemblance to how the money is being misappropriated’. It is significant to note that the allegation that ‘money is being misappropriated’ is unconditional and unequivocal. This is followed by a second chart which mimics the design, arrangement and colour scheme of the CHC Chart.
This second chart replaces the contents of the CHC Chart with the name and picture of the plantiff and the logo of the CPF (‘the CPF Chart’). The figures which represented the amount allegedly misappropriated in the CHC case are also replaced in the CPF Chart with ‘S$253 billion’ and ‘S$1000 billion’.
Judge Lee noted that the CPF Chart mimics the design, arrangement and colour scheme of the CHC Chart. Although he was attentive to these trivial similarities, he ignored the much more significant differences between the two charts. Most importantly, the CHC Chart includes explicit narrative that states for example that ‘Church founder Kong Hee and five of his deputies are accused … of criminal breach of trust.’ and ‘These four are also accused of misappropriating S$26 million to cover up the first sum’. Surely it is not the design, arrangement and colour scheme of the CHC Chart that conveyed the allegations of criminal misappropriation in the CHC Chart but the accompanying explicit narrative. Why did Judge Lee ignore the differences in the chart and fail to even mention the fact that the CPF Chart had no equivalent narrative?
Indeed there are so many major differences between the charts that a reader could reasonably conclude that the comparison was drawn by Roy for no reason but to sensationalize the article and sustain the interest of the reader. One gets the impression that Roy was so preoccupied with CPF issues that when he looked at the CHC Chart, what he saw was a good way to graphically represent what he had been communicating all along in his writings; ie. that CPF money is channeled into SGS, MAS, Temasek and GIC. That is not defamatory – it is true! A chart may represent many things. Just having a similar shape does not mean that two charts represent similar things, especially when there is explicit narrative to differentiate them.
Judge Lee ignored the differences in the charts and focused instead on the trivial similarities and on Roy’s statement that ‘something bears an uncanny resemblance to how the money iis being misappropriated’. Judge Lee said ‘It is significant to note that the allegation that ‘money is being misappropriated’ is unconditional and unequivocal … It suggests to the reader that what he is about to see i.e, the CPF Chart, also concerns a case of criminal misappropriation of funds. The comparison is made easier with the use of the CPF Chart which mirrors the CHC Chart.’
This passage from the judgement of Judge Lee is also riddled with logic flaws:
Roy was clearly saying that the CPF Chart (the ‘something’) bears an uncanny resemblance to ‘how the money is being misappropriated’ (note that Judge Lee left out the word ‘how’). A natural reading of this would be that how CPF is channeled into different entities bears an uncanny resemblance to how CHC channeled money into different entities and misappropriated it’.
The focus is on how the resemblance in how the money is being channeled rather than on the misappropriation. But Judge Lee did not even consider this even though the whole article is only about CPF money being channeled into SGS, GIC, Temasek and MAS and did not mention any other ‘misappropriation’ of CPF at all.
Astonishingly, Judge Lee did not elaborate on what misappropriation of CPF he thought the CPF Chart conveyed. It seems that Judge Lee thought the ‘uncanny resemblance’ statement was bad enough to amount to defamation that there was no need to even say what misappropriation of CPF Roy had alleged.
The CPF Chart is quite unambiguous and makes it clear that nothing else was being alleged except that S$253 billion of CPF funds is channeled to SGS, MAS, Temasek and GIC and mingled with other funds so that they collectively hold $1,000 billion.
Later in the article, Roy asked ‘How did the government make us set aside $253 billion in the CPF to let them earn $1 trillion for the reserves?’ making it explicit that this is what the CPF Chart conveys – not any other form of ‘misappropriation’. Without any proper explanation, Judge Lee dismissed arguments that the article, when read as a whole, conveyed only that the government legally enriches itself with a large proportion of the investment gains made by GIC and Temasek when they invest CPF monies and that this puts perspective, provides context and is the antidote to any alleged defamation. Judge Lee dismissed these arguments without even saying whether he agreed with this description of the article and if he did then how that could be reconciled with any alleged defamation.
The judgment of Lee Seiu Kin is poorly reasoned, if not entirely vacuous. I hope Roy appeals to the Court of Appeal to have it overturned.
Roy should appeal