1. Nature of the appeal

In this appeal, the above-named Appellant in Suit No. 1116 of 1996, Tang Liang Hong ("Mr. Tang") appeals

(1) against the Order of Lai Kew Chai J dated 21 March 1997 whereby he refused to recuse himself from hearing the said suits.

2. The issues in Suit No. 1116 of 1996

2.1 In this suit the Plaintiffs, respectively the Senior Minister and Deputy Prime Minister, claimed damages for libel in respect of words published in a Chinese Language magazine, Yazhou ZhouKan. The defamatory meanings which the Plaintiffs alleged were borne by the said words are pleaded in paragraph 11 of the Statement of Claim.

2.2 Mr. Tang, then a solicitor practising in Singapore, was included in the suit because the magazine article included words attributed to him and pleaded in paragraphs 5 and 6 of the Statement of Claim. Mr. Tang had been invited to comment on the affair by a journalist on the magazine. Mr. Tang’s wife was later added as the 5th Defendant for the purposes of obtaining a Mareva Injunction against her (although it is not suggested that she defamed the Plaintiffs or either of them).

2.3 The Plaintiffs’ claim against the 2nd and 4th Defendants inclusive was settled at an early stage. By the settlement agreement they agreed to pay to the Plaintiffs in full and final settlement the sum of S$450,000 for each Plaintiff. (Since Mr. Tang was a joint tortfeasor with the 2nd and 4th Defendants in respect of the words attributed to him in the magazine article, it follows that that the Plaintiffs were entitled to receive damages from Mr. Tang if and only it the damage suffered by them exceeded $900,000 : see paragraph 17.3 of the Defence).

2.4 By his Defence Mr. Tang disputed the defamatory meanings put on his words by the Plaintiffs : see paragraph 6 of the Defence.

2.5 The substantive defences relied by Mr. Tang were firstly qualified privilege (see paragraph 14 of the Defence) and secondly fair comment on a matter of public interest (see paragraph 15 of the Defence).

2.6 In or about October 1996, Mr. Tang’s defence was amended so as to add to the particulars relied on in support of the defence of fair comment the circumstances surrounding the obtaining by each of the Plaintiffs from a property company, Hotel Properties Limited ("HPL") of "early bird discounts" worth hundreds of thousands of dollars on apartments acquired by them. The supporting facts are set out in detail in paragraph 15 of the Re-amended Defence. Mr. Tang’s contention was that he was commenting that the circumstances of these acquisitions were such as to have merited independent investigation into their conduct by the Commercial Affairs Department ("the CAD") and/or the Corrupt Practice Investigation Bureau ("the CPIB").

2.7 The Plaintiffs served a Reply alleging malice on the part of Mr. Tang.

2.8 It will be seen from this brief summary of the issues in Suit No. 1116 of 1996 that a core issue in the action was the propriety of the granting and acceptance of such discounts by the Plaintiffs, given their prominent public positions in Singapore, and the desirability of an independent investigation into the circumstances of the case.

3. Mr. Tang stands as an Opposition candidate for Parliament

3.1 The pleadings in Suit No. 1116 of 1996 closed in August 1996 and the amendment referred to in paragraph 2.6 above was made in or about October 1996. The trial of the action was scheduled to take place early in 1997.

3.2 In December 1996, Mr. Tang decided to present himself as a candidate for election in the Group Representation Constituency of Cheng San in the Parliamentary General Election held on 2 January 1997.

3.3 In the course of the election campaign Mr. Tang was subjected to the attacks which are enumerated in paragraphs 8 to 13 and 19 to 22 of his affidavit sworn on 21 January 1997. For the reasons summarised in paragraphs 14 to 17 of the said affidavit the charges against Mr. Tang that he is (or was) an anti-Christian Chinese chauvinist are demonstrably ludicrous. Mr. Tang, on the spur of the moment at an election rally reacted in the manner described in paragraph 20 of the said affidavit.

3.4 The outcome of Mr. Tang’s remarks was that within a matter of a few days 12 libel actions were commenced against Mr. Tang by various political leaders (including the two Plaintiffs in Suit No. 1116 of 1996) each of whom claimed to have been referred to and defamed by Mr. Tang’s remarks. Many of the 11 Plaintiffs in these actions are virtually identical. In consequence huge costs have been incurred. Mr. Tang’s application to consolidate the various actions was refused. It is Mr. Tang’s contention, expressed in paragraph 30 of his said affidavit that the purpose of these multiple suits was to drive him from the political arena in Singapore.

3.5 Mr. Tang’s principal defence in each action is that his words were justified for the reason set out in his Defences in the Particulars of Justification (which are broadly identical in each case).

3.6 Mr. Tang left Singapore in early January 1997 because he feared for his safety if he remained here.

3.7 On or about 27 January 1997 the Plaintiffs in Suit No. 1116 of 1997 applied successfully for Mareva injunctions against Mr. Tang and his wife (Lai Kew Chai J had given leave for Mr. Tang’s wife to be joined as a defendant) and on or about 17 February 1997 for the appointment of a Receiver of their assets. Similar injunctions and orders were made in favour of the Plaintiffs (including the present Plaintiffs) in the other suits referred to in paragraph 3.4 hereof.

3.8 The terms of the Mareva injunction granted by Lai Kew Chai J were remarkable in the following amongst other respects :

(i) Mr. Tang’s wife was joined as a defendant for the purpose of obtaining Mareva injunctions against her although it is not suggested that any of the Plaintiffs has any cause of action against her;

(ii) the Mareva injunction expressly embraces the Tangs’ former matrimonial home in Singapore although that property is in the sole name of Mrs. Tang and there is no basis in the evidence for the claim that she is "nominee" for her husband;

(iii) although at the time none of the Plaintiffs had entered judgment against Mr. Tang and there was no evidence of any attempt by him to hide or dissipate his assets, the Mareva Injunction, unprecedentedly, applies worldwide;

(iv) the receiver was granted wide powers of compelling disclosure of Mr. Tang’s assets and as to the provision of monies to enable Mr. Tang to obtain legal advice, and;

(v) a worldwide Mareva Injunction was granted against Mr. Tang’s wife, although there was no basis laid in the evidence for such an order against her;

(vi) the Order included a mandatory requirement that Mr. Tang and his wife itemise all their disbursements from a specified date (31 January 1997 to 17 February 1997) (which was a physical impossibility);

(vii) the injunction was in the global amount of $11,200,000;

(viii) the Judge dispensed with service on Mr. Tang with the result that he was neither present nor represented at the hearing of the Plaintiffs’ applications.

(Although the Order provided for Mr. Tang and his wife to pay the costs of their legal representation, Lai Kew Chai J later refused an application by the Receiver that he is at liberty to pay the fees of lawyers instructed by Mr. Tang).

3.9 The passport of Mrs. Tang was subsequently seized and cancelled, and she was unable to join her husband.

3.10 Although the Court is not concerned, on the hearing of the present appeals, with the issues arising in the later suits referred to in paragraph 3.4 hereof, those actions form part of the background against which the present appeals fall to be decided.

4. Appeal against the refusal of Lai Kew Chai J to recuse himself

4.1 On 10 March 1997 (not 10 January as stated in the judgment) an application was made to Lai Kew Chai J on behalf of Mr. Tang and his wife for him to recuse himself from further hearing Suit No. 1116 of 1996 (or suits subsequently commenced).

4.2 The ground of the application was the apparent bias or partiality of the Judge.

4.3 The applicable principles can be summaried as follows :

(i) the Courts will seek to ensure, not only that justice is done, but also that it is "manifestly and undoubtedly seen to be done", i.e. a judge may be disqualified if there is an appearance of bias:

R vs. Sussex Justices ex parte McCarthy (1924) 1 KB at 264 ;

(ii) In considering whether there was a real likelihood of bias the Court does not look to see if there is a real likelihood that the Judge would or did favour one side at the expense of the other; it looks at the impression which would be given to the other people. "If right-minded persons would think that in the circumstances there was a real likelihood of bias on his part then he should not sit" :

R vs. London Rent Assessment Panel (1969) 1 QB 577 ;


(iii) if a reasonable observer would have suspected bias, it is normally no defence subsequently to produce evidence disproving actual bias. To this extent appearances are decisive :

Hannam vs. Bradford City Council (1970) 1 WLR 937; R vs. Liverpool City Justices (1983) 1 WLR 119 ;


(iv) of course the concern must be real and not fanciful :

R vs. Gough (1993) AC 646 ;


(v) the hypothetical observer is not one who makes his judgment after a brief visit to court but one who is familiar with the detailed history of the proceedings and with the way in which cases of the kind are conducted :

Arab Monetary Fund vs. Hashim (1993) Admin LR 348.

4.4 The grounds of the application to the Judge were three-fold :

(i) the long-standing and close relationship, both professional and personal, between the Judge and one of the Plaintiffs, namely the Senior Minister;

(ii) the personal involvement of the Judge in a similiar transaction, namely the receipt of a substantial "early bird discount", in relation to the same block of flats, as the transactions involving the two Plaintiffs criticised in the plea of fair comment included in Mr. Tang’s Defence (see paragraph 2.6 above) and ;

(iii) the granting by the Judge of Mareva injunctions against Mr. Tang and his wife and the appointment by the Judge of the Receiver of their assets (see paragraph 3.8 above).

4.5 Relationship between the Judge and the Senior Minister :

Mr. Tang and his wife relied in their respective affidavits on the following cumulative matters :

(i) the fact that Judge had been initially a legal assistant and thereafter a partner in the firm of Lee & Lee, in which the Senior Minister had been a partner until he entered politics and in which his wife and brother remained partners thereafter;

(ii) the fact that Lee & Lee had continued to advise the Senior Minister after he left the partnership and while the Judge remained a partner of the firm;

(iii) the continuing friendship between the Senior Minister and the Judge.

 4.6 The Judge’s "early bird discount" : as indicated in paragraphs 2.6 and 2.8 above, it was to have been a central part of Mr. Tang’s defence to the claim in Suit No. 1116 of 1996 that the circumstances of the discounts obtained by the two Plaintiffs merited the comment that they required investigation by the CAD or the CPIB, i.e. that there were sufficient grounds for criticism of the Plaintiffs to warrant an investigation by wholly independent officials. Since the Judge benefitted from the discount scheme in relation to the same block of apartments as did the two Plaintiffs, the hypothetical observer would inevitably conclude that the Judge would or might be unable to approach Mr. Tang’s criticism and the merits of his comments with the detachment and objectivity of a judge lacking any personal involvement in the transaction. Such an observer might perceive the Judge to be unduly lenient towards the obtaining of the discounts because he had obtained one himself; or alternatively that he might take a strict line for fear of being thought to be partial to those who had gained substantially from the discount scheme.

4.7 The Judge’s conduct of interlocutory applications : notwithstanding the facts set out in paragraph 4.5 and 4.6 above Lai Kew Chai J had the conduct of all 13 suits against Mr. Tang and had dealt with various interlocutory applications, notably the application to join Mr. Tang’s wife as the 5th Defendant and the applications for Mareva injunctions and for the appointment of a Receiver. So unusual were the order made by the Judge (including but not limited to those set out in paragraph 3.8 above) that the hypothetical observer would conclude that the suspicion of bias created by the making of such unusual and draconian orders was such that the Judge should not continue to sit and should not conduct the trials.

4.8 The judgment : the following comments upon and criticism of the judgment are made :

(i) at paragraphs 9.1 and 18 and 20 the judge finds himself in the invidious position that he quarrels with Mr. Tang’s assertions about his relationship with the Senior Minister. This demonstrates the risk of the appearance of bias. In any case it appears to be common ground that the Judge was (albeit some years ago) a partner in the law firm founded by the Senior Minister and in which his wife and brother are partners; that Lee & Lee (although not the Judge personally) has advised the Senior Minister and that the Judge and the Senior Minister are friends, although not "close" friends. These facts alone suggest the Judge should have recused himself;

(ii) the judge wholly misapprehends the thrust of Mr. Tang’s case as to why his position was compromised by his involvement in the very same discount scheme which is criticised in the fair comment defence. At paragraph 9.3 of the judgment the Judge quotes paragraph 6.2 of the defence, which called for an independent investigation, which is the basis of the fair comment plea. It would be impossible to adjudicate on the particulars of fair comment without appearing to take a view whether the circumstances did or did not warrant an independent investigation. This is illustrated by the Judge’s reference to his purchase of an apartment in the Nassim Jade development as "coincidental" and as having been "in accordance with market practice". Similarly paragraphs 19 and 21(5) of the judgment contains much apparent pre-judgment of issues raised by the plea of fair comments;

(iii) the Judge has little to say about the highly unusual interlocutory orders previously made by him and;

(iv) the judgment is repetitive, highly abusive of Mr. Tang and includes much material which was or should have been wholly irrelevant to the question at issue. For example the Judge’s decision to refer the conduct of Mr. Tang and that of his solicitor to the Law Society had nothing to do with the issue of recusing himself. Nor did the case of Jeyaretnam vs. Lee Kuan Yew. The Judge speaks of Mr. Tang "setting a trap for him"; trying to sway public opinion against him; being "mendacious"; lacing courage and decency; filing a "malicious and scurrilous affidavit"; being infected with a very bad kind of malignity; mounting a vicious, collateral and totally unwarranted attack on his integrity; "muddying the waters" "spreading a lot of poison about me and [the Plaintiffs]". In places the Judge appears to have understood the case to have been based on his actual bias. No hypothetical reader the judgment could fail to detect the real risk of apparent bias. How could a judge expressing himself at the interlocutory stage in such extravagant and emotional terms be expected to be able to bring a detached and balanced mind to bear on the issues arising at trial (which included Mr. Tang’s state of mind)?

4.9 For the above reasons it is submitted that the Judge was wrong to have refused to have recused himself.

5. Appeal against the Order of Lai Kew Chai J that Mr. Jeyaretnam show cause why he should not pay the cost of the application that the Judge recuse himself

5.1 In paragraph 23 of his judgment Lai Kew Chai J ordered that the Plaintiffs’ costs should be paid on an indemnity basis on the grounds inter alia that Mr. Tang’s mendacity knows no bounds. Since the Plaintiffs in the various suits had chosen, for no good reason, to be separately represented, the effect of the judge’s order is that Mr. Tang should pay, on an indemnity basis, the costs of 12 counsels.

5.2 In paragraph 26 of his judgment Lai Kew Chai J, on the application of Senior Council for Dr. Tan, adjourned an application that Mr. Jeyaretnam be mulcted personally in all or part of the costs of the applications that the Judge should recuse himself, in order to enable Mr. Jeyaretnam to show cause why he should not do so. It is submitted that the Judge erred in principle in making the order to show cause. A foriori the Judge was wrong to do so since he exposed Mr. Jeyaretnam to double jeopardy in that he also referred Mr. Jeyaretnam to the Disciplinary Committee of the Law Society (judgment paragraph 25).

5.2 It is essential to approach this part of the appeal with the issue clearly in mind : was there a basis in law for departing from the ordinary rule that the costs should be borne by one or other part and for taking the wholly exceptional course of ordering the legal representative of one party to pay the costs personally (and on an indemnity basis)?

5.3 The jurisdiction to make an order for costs against a solicitor is rarely to be exercised and then only in accordance with principle and authority: see Tolstoy vs. Aldington (1996) 1 WLR 73.

5.4 Accordingly it has to be established against the solicitor that, in relation to the proceedings in which the Order is sought, he has been guilty of "improper, unreasonable or negligent" conduct. No question of negligence arises. The meaning of the terms "improper" and "unreasonable" was considered in Ridehalgh vs. Horsfield (1994) Ch 205 at 232 : "improper" means conduct which would justify the solicitor being guilty of gross professional misconduct. "Unreasonable" in the subsection means conduct which was designed to be vexatious and to harass the other side. It is essential to have in mind that the mere fact that the solicitor pursued a hopeless case or application foes not justify an order for costs against him personally. Sight should not be lost of the vital public interest in ensuring that litigants, even unpopular litigants like Mr. Tang, should not be deprived of legal representation because lawyers are fearful of penal orders for costs being made against them personally.

5.5 The concept of unreasonableness, as defined in Ridehalgh, has little bearing on an application that a Judge should recuse himself on the grounds of apparent bias. No vexation of the opposite party is involved in making such an application. There can be nothing vexatious about a litigant applying to discharge a Mareva injunction or an order for the appointment of a receiver, even where the party is in breach of the order: X vs. Morgan Grampian (1991) 1 AC 1 at 46-7.

5.6 The question is therefore whether Mr. Jeyaretnam was guilty of "impropriety", in the sense of gross professional misconduct, in making and pursuing the application on behalf of his client. There was nothing remotely objectionable about making the applications : there were sound and powerful arguments why the Mareva / receivership orders should be discharged or varied and for the Judge to recuse himself : see paragraph 4 above.

5.7 As to complaints set out in the "charge sheet" contained in the letter from Wong Partnership dated 12 March 1997 :

(1) it cannot be incumbent on a solicitor to ensure that the contents of an affidavit sworn by his client are true. The preposition is a novel one. In fact Mr. Jeyaretnam has not time or opportunity to check the affidavit, which was sworn by Mr. Tang in Hong Kong and sent to Mr. Jeyaretnam just before the hearing. In any case the untruth of Mr. Tang’s affidavit is not accepted or established;

5.8 Quite apart from the absence of any justification for an order that Mr Jeyaretnam pay cost personally, it is the irresistible inference from the terms of the judgement that Lai Kew Chai J was influenced by matters which had no relevance to the question whether an order for costs should be made against Mr Jeyaretnam. See the judgment at paragraphs 10, 12, 15, 20(7) and 25.

5.9 In the premises it is submitted that there was no basis in law for the Judge to make an order that Mr Jeyaretnam show cause why he should not pay the costs of the applications personally.

Signed on behalf of the Appellant )

)

Tang Liang Hong )

)

acting in person )