High Court Upholds Soh Rui Yong’s Liability for Defamation of Ashley Liew, Damages of $180,000, and Orders a Further $18,000 in Costs
Introduction
At long last, this marathon case has drawn to a close.
In the final half-day hearing over Zoom on Monday, 28 March 2022, the High Court heard Soh Rui Yong’s (“Soh’s”) appeal against the District Court’s decision and upheld it, save for a minor point that Dr. Ashley Liew (“Ashley”), the Respondent to this appeal, did not contest – she set aside the District Court’s order for Soh to publicly apologise to Ashley.
While Soh had initially appealed against the entire decision of the District Court, including its assessment of the witnesses’ testimonies, parties gravitated towards three (3) main legal issues at the oral hearing:
What was the defamatory sting for the purpose of Soh’s defence of justification?
Whether the damages awarded by the District Court was wholly erroneous?
Whether Soh’s post-judgement conduct could be admitted as further evidence without leave of the Court?
Dr. Ashley Liew (left), Soh Rui Yong (right)
Piecing Together the Court-accepted Version of Events
With the case concluded, it is now an appropriate time to share what the District Court had accepted as the events that likely transpired on the balance of probabilities.
Soh and Ashley were the only two (2) male national athletes who represented Singapore in the marathon. The marathon began at about 6:00 AM on 7 June 2015 and involved 5 loops within East Coast Park with a westernmost U-turn point at lamppost B1A29 (the “U-Turn Point”).
When the competitors reached the U-Turn Point for the first time, everyone but Ashley missed the U-turn and ran past it. Ashley found himself inadvertently in the lead but did not want to take advantage of the situation. He therefore deliberately slowed down to wait for the other participants to catch up before continuing the race proper. This has become widely known as Ashley’s act of fair play.
Ashley’s act of fair play took place across 3 distinct phases. We will deal with each in turn and have put together a table to help you wrap your head around them. The graphics contain the relevant testimonies of Ashley and his witnesses (referred to as PW or Plaintiff’s Witnesses), and Soh and his witnesses (DW or Defendant’s Witnesses). It also contains the District Court’s findings of facts (TJF or Trial Judge’s Findings) which cannot be overturned on appeal easily. The same table was used in Ashley’s Respondent’s Case in the High Court.
Phase 1 starts approximately 50-70m from the U-Turn Point when Ashley deliberately slows down to wait for his competitors.
In Phase 2, Ashley increased his speed slightly but continued to run at a speed that was slower than his marathon pace. He ran at his Phase 2 speed until PW2 Takizaki overtook him.
Phase 3 starts after PW2 Takizaki overtook Ashley. Ashley’s Phase 3 speed is faster than his speed in Phase 1 and Phase 2, but overall, still slower than his marathon speed.
Ultimately, while there were minor inconsistencies in the testimonies of Ashley’s witnesses, the District Court found that these are inconsequential. On the balance of probabilities, the District Court found that Ashley had indeed slowed down to wait for his competitors – arguably the most crucial finding of fact in this case.
Defamatory Sting
The defence of justification requires Soh to prove that the “defamatory sting” of his statements is substantially true.
The thrust of Soh’s argument on appeal was that his statements (made in 2018 and 2019) should be taken in the context of the public’s perception of the media surrounding Ashley’s act of fair play in 2015. It was undisputed that Soh had called Ashley a liar, but Soh argued that his statements should, inter alia, be taken to mean that “Ashley’s act of slowing down did not or could not have cost him a medal”, instead of “Ashley did not slow down to wait for us” – a fine but perhaps legally important distinction.
If Soh was correct, then this would mean that Soh would only need to justify that Ashley’s slowing down did not or could not have cost him a medal. He would not have needed to prove a negative – that Ashley did not in fact slow down at all to wait for his competitors.
Soh purported to justify his statements by suggesting that Ashley had finished more than 6 minutes behind the bronze medal winner of the day. Soh argued that Ashley’s purported 50-metre lead would not have mattered given how far behind Ashley eventually finished. This is even if Ashley had stopped completely or slowed down for 2.5 minutes.
In response, Ashley argued that the objective interpretation of Soh’s statements showed that Soh went beyond disputing the medal claim and accused Ashley of lying about slowing down at all. Therefore, the only way for Soh to justify his statements would have been to prove that Ashley did not slow down to wait for his competitors – that which Soh had sought to but failed to prove at trial in the District Court.
While it is an uphill task to “prove a negative”, it is technically not impossible. Soh gave evidence himself and called three (3) other witnesses – namely, his father (DW3), his former coach (DW2), and a friend (DW4) – who were standing at various locations to say that they did not see Ashley slow down. This approach paved the way for Ashley to successfully argue before the District Court that just because Soh’s witnesses did not see Ashley slow down, does not mean that it did not happen. To rehash a quote used in our Opening Statement:
“Just because you don’t see something doesn’t mean it isn’t there.
The stars are always there.”
On the other hand, Ashley gave evidence at trial detailing how he had slowed down in three (3) phases:
To a crawl for 5-8 seconds until another runner Kuniaki Takizaki (“PW2 Takizaki”) started to catch up;
A faster pace as PW2 Takizaki catches up with him until he is overtaken;
An even faster pace after PW2 Takizaki overtakes and until the rest of the pack caught up with him, like “jumping on a moving train”.
Ashley’s aforesaid account, especially Phases 1 and 2, were corroborated by three (3) of his witnesses, namely–
PW2 Takizaki, a competitor representing Cambodia in the said marathon,
PW3 Kelvin Ling, a spectator standing near the U-turn Point, and
PW4 Jennifer Quek, also a spectator but standing about 70 metres away from the U-turn Point.
Soh’s counsel failed to “break” Ashley and his witnesses’ evidence in the District Court and was therefore left to rely on what he claims was the ‘public perception’ in the High Court appeal, namely that:
Ashley dramatically slowed down (or slowed down to a crawl) to wait for his competitors.
Ashley only resumed his marathon pace after his competitors overtook him in exactly the same order.
The act of slowing down cost Ashley a medal.
Soh asserted that this public perception when coupled with Ashley’s “gradual retreat on his account of the act of fair play to a far less dramatic account of events” should change what he needs to prove vis-a-vis his defence of justification. Soh submitted that to succeed in his defence of justification, he only needs to prove that this “dramatic account” based on public perception is substantially untrue.
To substantiate the public account, Soh relied on what was said on, inter alia, The 5 Show Interview that was aired on Channel 5 in 2015, a 2015 Today Online article, and the 2018 International Fair Play Committee Facebook Post congratulating Ashley on his receipt of the sportsmanship award, and various statements in 2015 made by public figures (e.g. Minister Shanmugam).
Ashley countered this argument by asserting primarily that the defamatory statements spoke for themselves and was incongruent with Soh’s reframing of the issue. A summary of the 5 defamatory statements are as follows:
1st Blog Post updated on 6 June 2018 - “…Teammate Ashley who had been in last place up to this point, ended up in front as we all did an about turn. Nobody slowed down to wait – the race was on.”
Facebook Comment on 21 October 2018 - “Sorry I’m going to point out something here: this story is untrue… I was third in place in that race when we took a wrong turn. When we turned around perhaps 50m into the wrong turn, Ashley was already running in the other direction. We took quite a while to catch up to him (at least 1-2minutes) (Soh subsequently (on 29 January 2020) amended his comment from “We took quite a while to catch up to him (at least 1-2minutes)” to “We took quite a while to catch up to him (at least 7 minutes”), he certainly did not stop or slow down to wait for us whatsoever”
Facebook Post on 26 October 2018 - “When I first saw this ‘slowing down to wait in the name of sportsmanship’ claim going around after the 2015 SEA Games Marathon, I knew immediately that it was untrue… I was right there in the race as one of the affected parties, and saw for a fact that nobody slowed down to wait for anyone else after that fateful wrong turn”
Facebook / Instagram Posts on 26 May 2019 - “42 Reasons Why I HATE Running Marathons #21 to #30: … Marshallers sleeping, risk of wrong turn. (sleepy face emoticon) When #23 happens you might have idiots who take the chance to make up a hero story about slowing down to wait for others as an excuse for that’s why they didn’t win, then send you lawyer’s letters when you call their bullshit and embarrass them publicly. (3 bin emoticons) Takes up space in my trash can!”
2nd Blog Post on 6 August 2019 – “the purpose of this blog post is to clarify certain facts and bring us back to the focus on the main point of discussion: Ashley Liew’s tale of sportsmanship at the 2015 SEA Games Marathon… Everything that’s happened the past few days is a result of me speaking the truth on the Ashley Liew sportsmanship tale… The telling of the truth on Ashley Liew was not to the liking of some officials. All I did was post the truth on FB: [Hyperlinks]… 4) Calling the SNOC biased and failing to properly investigate the Ashley Liew sportsmanship tale”
Further, Ashley argued that it is inappropriate for him to be judged based on words that are not his, but are in fact press embellishment.
Taken together, Ashley submitted that Soh’s argument was but a strawman unsubstantiated by defamation jurisprudence.
Ashley also brought up the fact that during the trial, Soh’s (then) counsel stated in open court that: “My client has come up to say, you did not slow down… You do not deserve the award. You’re a liar, Ashley”.
Having heard the arguments of the parties, the High Court held that Soh’s defence of justification failed because the 5 defamatory statements went beyond simply saying that Ashley was a liar. Soh’s statements were statements of fact alleging that Ashley did not slow down to wait for his competitors.
Damages
The High Court upheld the District Court’s award of $120,000 in general damages and $60,000 in aggravated damages. Ashley did not ask for exemplary or special damages. Many of our legal colleagues have commented that this is a generous amount. However, having argued the case and examined precedent cases, we are of the view that the District Court’s award is fair in light of past defamation awards.
We clarify that the District Court had in a separate taxation process awarded a further sum of about $125,000 as compensation for legal costs and other disbursements such as court fees. This excludes costs awarded for other interlocutory applications, such as Soh’s failed attempt to have the District Judge recuse herself from the case in both the District Court and High Court. These other costs were ordered at the conclusion of each interlocutory application.
General Damages
The purpose of general damages is to compensate a plaintiff for the effects of the defamatory statements. Unlike damages recoverable for personal injury or property damage, general damages in defamation claims serve to:
console the plaintiff for the hurt and distress that has been caused by the publication,
to repair the harm caused to his/her reputation (insofar as a monetary award is able to), and
to vindicate the plaintiff’s reputation – to send a message to the world that the imputation is untrue. For instance, if the same defamatory material is referred to in the future, the plaintiff must be able to point to a sum awarded to convince a bystander of the baselessness of the charge.
The following is a non-exhaustive list of the factors that the Court may consider in awarding general damages (as opposed to aggravated damages which will be covered below):
the standing of the parties;
the nature of the defamation (i.e. the gravity of the allegation was made);
the mode and extent of publication of the defamatory statements;
the conduct of the parties (to the extent that the plaintiff may have contributed to the publication himself);
the effect of the defamation on the plaintiff; and
the natural indignation of the Court at the injury caused to the plaintiff.
We argued that the aforesaid factors can be summarised in two (2) broad strokes:
the reputation of the plaintiff; and
the degree of harm caused to the said reputation.
On the point of damages, Soh argued for $25,000 in general damages (being $5,000 per post) because Ashley’s “elevated” standing is premised upon the public’s perception of, inter alia, whether Ashley’s slowing down had indeed cost him a medal. Soh contended that since Ashley’s reputation was premised upon a falsehood that his slowing down cost him a medal, his reputation should be regarded as simply a regular Doctor of Chiropractic, or a former national athlete, and nothing more.
In response, we respectfully disagreed and suggested that Soh’s narrow focus on Ashley’s career as a chiropractor ignores the reputation that Ashley has as a national athlete and as the first-ever Singaporean to win the coveted Pierre De Coubertin International Fair Play Award (that is usually only awarded to only 1 sportsperson per year worldwide). We argued that Soh’s approach was akin to insisting that the standing of Mother Teresa should be assessed solely on the fact that she was a nun, ignoring the public recognition for her work that includes, inter alia, her receipt of a Nobel Peace Prize. Further, the appeal was not the correct forum to review the reasons why Ashley was awarded the Pierre de Coubertin.
Ashley’s act of fair play was widely commended by the mainstream press and prominent figures, including even a commendation by the Prime Minister at the 2015 National Day Rally where Ashley was held out as “a shining beacon of the Singapore spirit, of sportsmanship, class and character”.
Soh argued that District Court’s award was extraordinary and eclipses the awards of damages granted even to the Prime Minister of Singapore in Lee Hsien Loong v Ngerng Yi Ling Roy [2016] 1 SLR 1321 (“Roy Ngerng”) and Lee Hsien Loong v Leong Sze Hian [2021] 4 SLR 1128 (“Leong Sze Hian”). In both cases, $100,000 in general damages were awarded.
We distinguished the Prime Minister’s cases by arguing that the $100,000 awards were not a true reflection of a significantly harmed Prime Minister’s reputation. There had been cases in the past that awarded even higher damages such as in Tang Liang Hong v Lee Kuan Yew & Anor [1998] 1 SLR 97 - $400,000.
A closer examination of the facts in Roy Ngerng reveals that he had accused the Prime Minister of being a "thief" and had criminally misappropriated monies paid by citizens to the state-administered Central Provident Fund (the “CPF”). However, we argued that Roy Ngerng was simply an ordinary citizen who had no personal knowledge about the internal operations of the CPF, and therefore no right-thinking member of society would truly have taken him seriously. In essence, we argued successfully that Roy Ngerng hardly harmed the Prime Minister’s reputation, yet was made to pay $100,000 in general damages.
Soh’s on the other hand was in a unique position as a fellow participant of the marathon in question. His statements that Ashley “did not slow down to wait for us” were cloaked in a special sort of apparent credibility because he can reasonably claim to have had first-hand knowledge of the events occurring during the race.
This unusual factor exacerbates the harm to Ashley’s reputation because Soh’s words, though found to be false, would have been believed by a greater percentage of the public due to his claim that he personally witnessed the events of that fateful day.
By analogy, we further illustrated that if Roy Ngerng were a former CPF employee or had held a position with apparent inside information about the inner workings of the CPF, perhaps the damages in that case would have been much more substantial. The same type of special knowledge was also absent Leong Sze Hian.
We defended the District Court’s award of $120,000 in general damages finally by benchmarking Ashley’s reputation against that of the plaintiff in the unreported case of Tan Ee Ping v Yong Fook Min DC 732/2008.
At the time of the decision, Tan Ee Ping was an engineer and a member of the Strata Titles Board. Ashley is also not just a regular chiropractor. Like Tan Ee Ping, he held, at the material time, office as an executive committee member of The Chiropractic Association (Singapore) and is therefore of like standing. Tan Ee Ping was concerned only with 2 defamatory e-mails that were sent to just 2 employees of the Strata Titles Board. It goes without saying that the extent of publication in our case was much more widespread as the matter was covered in mainstream media. Tan Ee Ping was awarded $120,000 in 2008. On this basis, we argued that the District Court’s award to Ashley was justified.
PW2 Kuniaki Takizaki (in front in a red singlet and a white cap), Singapore runners Soh Rui Yong and Ashley Liew (in white) at Fort Road, before U-turn Point B1A29
Aggravated Damages
Aggravated damages are essentially damages taking into account the aggravating factors, such as factors that exacerbate the damage that has been caused and which justify a higher amount of general damages being awarded.
Aggravated damages may be awarded based on a defendant’s conduct and motives such as:
allegations of bad behaviour during mitigation;
a refusal to apologise;
a repetition of defamatory remarks;
persisting in pleas of justification until a very late stage of the proceedings; and
the malicious and reckless conduct of the defendant.
In closing submissions, we had argued that all the aforesaid factors applied and that Soh’s conduct could justify aggravated damages in equal proportion to general damages, citing three (3) precedents where 100% of general damages were awarded.
However, while the District Court accepted that there was no rule that the quantum of aggravated damages awarded should be a fixed proportion of general damages, it expressed the view that the quantum of aggravated damages should nonetheless be proportionate to the general damages awarded and caution, therefore, had to be exercised against over-compensating for the distress, humiliation and injury to feelings which had already taken into account in awarding basic compensatory damages. After all, aggravated damages, like general damages, are also compensatory in nature, citing the Court of Appeal in Koh Sin Chong Freddie v Chan Cheng Wah Bernard [2013] 4 SLR 629.
In the District Court, we had argued that Soh’s aggravation in this case was without comparison.
First, we submitted his conduct indicated express malice as he had been given an opportunity, even before this action commenced, to view the 4 statutory declarations provided to the Singapore National Olympic Council stating that Ashley had slowed down. When asked why at trial, he coyly said, “Yah, yah. I could have but I didn’t because it’s not reasonable to do so”. When asked by SNOC to withdraw the statement, he posted on his social media page, inter alia, “Here is my answer to SNOC: No, thank you. I will not be bullied or intimidated into withdrawing my account, which is nothing but the truth.”
Second, we argued that Soh was reckless and was perhaps wilfully blind by refusing to give any benefit of the doubt to (A) the contents of the 4 statutory declarations even after finally obtaining disclosure of them in discovery, and (B) the contents of the 4 affidavits of evidence in chief when he received them. He had therefore unjustifiably persisted in a plea of justification that was bound to fail.
Third, we contended that Soh had failed to apologise. Even in Roy Ngerng, at least an apology letter was sent.
Forth, we argued that Soh’s conduct prior, during and even after the first instance judgement was particularly deplorable and calculated to draw the public’s eye to his defamatory statements and the dispute. For example:
Before trial, Soh had posted at least 41 unique social media posts relating to the dispute.
On 6 July 2020, shortly after the trial dates were fixed, Soh posted on social to say he was “delighted to finally have court dates set for Ashley Liew’s defamation case” and invited “anyone interested to come forth and witness the truth be unveiled”.
On the eve of trial, at 9:53PM, Soh sent an e-mail to Ashley’s lead counsel, saying “I note that you have chosen not to object to my observation that Ashley seems to have changed his story again… For now, we will take it as admission on your part that your client has changed his story again, from “slowing down to a crawl”, “dramatically slowed down to wait” to “not stated or claimed to have slowed down to a crawl”, to now “did not wait for other Participants in the chase pack to overtake (him) before resuming (his) usual marathon pace… This is a very interesting development, and I look forward to seeing how exactly you plan to defend this constantly changing position in Court… See you soon. I’m looking forward to it.”
On the 4th day of trial, Soh posted on social media “Mr Ashley Liew, if what I’m reading here in today’s The Straits Times report on Day 3 of the trial is accurate, it seems like under the oath of court, you are unable to tell the truth on a simple detail like this.”
Soh had also deliberately tagged Ashley and his lead counsel on social media in some of the social media posts.
On 10 December 2021, Soh published a blog post that said, inter alia, “with the case in its final stages before the High Court now I have no doubt that a competent judge will get to the bottom of the case and the truth will be revealed before long… I never hesitate to stand for the truth… speaking the truth on this case has liberated my mind”
On 5 January 2022, Soh posted in a Facebook comment that he does not “think [the Judgement] vindicates [Ashley] at the moment”.
In the High Court appeal, we argued that aggravated damages ordered by the District Court were justified as Roy Ngerng was ordered to pay 50% of general damages as aggravated damages to the Prime Minister even though he had at some point apologised. The aggravating factors were less severe than in Soh’s case – Roy Ngerng posted a further 6 blog articles, 2 e-mails and a YouTube video, further to his initial defamatory statement, that may be described as:
a blog article titled “I have just been sued by the Singapore Prime Minister Lee Hsien Loong”;
another blog article titled “Your CPF: The complete truth and nothing but the truth”;
a YouTube video where he expressed his disappointment that the Prime Minister had chosen to use the law against an ordinary citizen like himself;
2 e-mails to the international media informing and updating them about the Prime Minister’s defamation lawsuit against him;
a blog article informing his audience of the Prime Minister’s request that he take down the aforesaid articles and video;
a further blog article titled “I have proposed the damages to Lee Hsien Loong for defamation suit”;
a further blog article titled “I will continue to speak up on Singaporean’s CPF to protect us”.
Soh argued that either no aggravated damages should be awarded, or at best, $5,000 in aggravated damages (20% of general damages of $25,000) would be appropriate. The High Court upheld the District Court’s order for $60,000 (50% of general damages of $120,000) in aggravated damages.
Evidence post-dating the District Court’s decision
One issue before the High Court was whether Ashley could adduce new evidence on appeal without the leave of the Court. We submitted that the new evidence would provide further grounds for upholding the damages awarded by the District Court. Further, we argued that this new evidence might convince the High Court to exercise its discretion to increase the damages awarded.
The new evidence in question was of Soh repeating the sting of his defamatory posts (i.e. that Ashley lied about his Act of Fair Play) even after the District Court’s decision.
To substantiate his argument, we relied upon Section 41(5) of the Supreme Court of Judicature Act read with Section 22(2) of the same. Section 41(5) reads: “Such further evidence may be given to the Appellate Division without leave if the evidence relates to matters occurring after the date of the decision appealed against.” Section 22(2) reads: “The General Division has the like powers and jurisdiction on the hearing of such appeals as the Appellate Division has on the hearing of appeals from the General Division.”
Further, Ashley referred the High Court to two (2) cases: BNX v BOE and another appeal [2018] SGCA 29 and Tan Hock Keng v Malaysian Trustees Bhd and another matter [2021] SGHC(A) 18 to support his proposition.
In response to Ashley’s submissions, Soh argued that a summons and affidavit must be filed to adduce the new evidence. We countered by submitting that no summons was required even though a summons was filed in the prior cases because to hold otherwise would diminish the distinction between the need for leave and the lack thereof.
On this point, the High Court ruled in Ashley’s favour and allowed for the admission of further evidence to be taken into consideration. However, the Court was not minded to increase the quantum of damages because Ashley had chosen not to cross-appeal against the decision of the District Court.
Costs
The High Court awarded Ashley a further $18,000 in costs for the appeal.
Conclusion
Having run this 3-year race from start to finish, we have nothing but one piece of advice: Be careful with your words. It does not matter what you subjectively meant – defamation is all about what can be objectively interpreted from what you said/wrote.
We hope you have enjoyed reading and if you have any questions/queries about the case or about defamation in Singapore, do drop us an email at ask@that.legal. Our doors (both physical and virtual) are open. #THATistheway #LetsTalkAboutYourChallenge
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