Five-member Singapore Court of Appeal considered the law on absolute privilege, qualified privilege, in the context of defamation made in the form of complaints to law enforcement or prosecuting authorities e.g. police and regulatory bodies. The Court of Appeal laid down the law that gratuitous complaints to law enforcement or prosecuting authorities, should only be protected by qualified privilege, which can be defeated by malice, and not absolute privilege: see -.
This case concerned the collective sale of properties at Sophia Road. The person (one Loh) who acted on behalf of the owners to facilitate the sale through a real estate agent made various allegations about the agent in a complaint with the Council for Estate Agencies (CEA) and filed a police report in respect of her alleged forgery of an Option to Purchase. He also wrote a letter to the Straits Times without naming the agent complaining of unethical real estate agents. The relevant real estate agency and the agent sued for commission and damages for defamation, malicious falsehood and conspiracy by unlawful means.
Claim for Real Estate Agent Commission
The Court considered that because the Owners and Loh conceded that the contract was silent on commission entitled to the agency, it had to consider whether the agency’s efforts were the effective cause of the sale of the properties, being an implied term into the agency relationship between the owners and the agency. It found that this was the case: . However, the Owners argued that they were nevertheless entitled to terminate the agency relationship because the agency had breached its duties to them.
The Court thus had to consider whether an agent can lose his right to commission by reason of his breaches of duty notwithstanding that his efforts had, by the time of those breaches, become the effective cause of the sale of the property in question. The Court considered two lines of authorities, surveying the following cases: Macnamara v Martin  7 CLR 699, Sellers v London Counties Newspapers  1 KB 784, Keppel v Wheeler  1 KB 577, Robinson Scammell & Co v Ansell  2 EGLR 41.
“The Keppel v Wheeler line of cases suggests that where dishonesty or bad faith on the part of the estate agent has been shown, the agent may not be entitled to commission that he had already earned prior to the breach and the termination of the agency. In contrast, the Australian case of Macnamara suggests that an agent’s right to remuneration (if earned) cannot be taken away”: .
The Court however did not find it necessary to decide on this legal issue because on the facts of the case, the Court found that there was no dishonesty or breach of fiduciary duty: . Further, the Court found that even if there was a breach of duty, the Owners did not actually terminate the agency relationship: .
Absolute privilege covers: (a) statements made in the course of judicial or quasi-judicial proceedings; (b) statements made in the course of parliamentary proceedings; and (c) communications in relation to Executive matters: .
The Court considered Singapore cases D v Kong Sim Guan  3 SLR(R) 146, Silas Saul Robin v Sunrise Investments (Pte) Ltd and another  1 SLR(R) 169, Tang Liang Hong v Lee Kuan Yew and another and other appeals  3 SLR(R) 576, and decided that the Court in those cases did not decide on the issue of whether absolute privilege covers gratuitous complaints to the authorities has not been explored by the Singapore courts.
The Court then considered English and Malaysian cases: Buckley v Dalziel and another  1 WLR 2933, Westcott v Westcott  2 WLR 838, Lee Yoke Yam v Chin Keat Seng  1 MLJ 145; and Australian and Canadian cases: Mann v O’Neill (1997) 145 ALR 682, Hanisch v Canada  BCJ No 1518, Caron v A  BCCA 47, and observed that “the Malaysian and English courts have taken the position that the defence of absolute privilege applies to gratuitous complaints to prosecuting authorities whereas the Australian and Canadian courts have gone in the opposite direction and declined to extend the defence of absolute privilege to such complaints”: .
The Court then decided that a “balance must be struck between the freedom of speech and the protection of reputation. In this regard, the foreign authorities that have been cited in respect of absolute privilege must be viewed with some circumspection since the balance between freedom of expression and protection of reputation depends on local political and social conditions: Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal  1 SLR 52 (“Review Publishing”) at ”: .
“[I]n Singapore, the suggested extension to the scope of absolute privilege would be wholly disproportionate to and unnecessary for the aim of encouraging members of the public to report suspected wrongdoings”: .
The Court then considered whether qualified privilege applied, which would depend on whether the person who allegedly committed defamation was under a legal, social or moral duty to communicate the defamatory statements, and whether the recipient of those statements had a corresponding interest to receive the communication: Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal  1 SLR 506 at .
The Court rejected the argument that there was some duty to communicate the information to the Straits Times. This is because the defence of qualified privilege does not ask whether the communication is for “the common convenience and welfare of society”: .
“In any case, the defence of qualified privilege would be defeated by proof that the communications were actuated by malice. Malice might be proved in two ways: first, by showing that the defendant knew the statement was false or was reckless as to its truth or did not believe in its truth; and second, even if the defendant had a genuine or honest belief in the truth of the defamatory statement, by showing that his dominant motive was to injure the plaintiff or was otherwise improper”: . The Court found on the facts that there was a finding of malice: .
The defence of justification provides a complete defence to a claim in defamation if the defendant manages to prove that the statement was true in substance and fact.
“Significantly, where a publication contains more than one defamatory allegation but the allegations do not have a common sting, the claimant is entitled to select which of the allegation(s) he complains of. If the claimant does so choose, the defendant is not entitled to seek to justify the allegations of which the claimant does not complain”: .
“There are generally three levels of defamatory meaning that are relevant to the defence of justification. According to the English Court of Appeal in Chase v News Group Newspapers Ltd  EMLR 11 (“Chase”) at , publications may convey that the claimant has in fact committed some serious act (“Chase Level 1”), or that there are reasonable grounds to suspect that he or she has committed such an act (“Chase Level 2”), or merely that grounds exist for investigating them (“Chase Level 3”)”: .
The Court found that there were no reasonable grounds on which Loh could have suspected that the agent had forged the Option to Purchase: . Accordingly, his defence of justification was rejected.