Source: TODAY - Click image for link to TODAY article by Louisa Tang

It was just 3 months ago (March 2022) that we that we reported on the High Court’s decision to uphold Soh’s liability to our client, Ashley Liew, for damages to the tune of $180,000 and legal costs of $120,000. Due to the extent of the recusal application and other interlocutory applications, Soh had previously paid out another about $80,000 even before the trial, bringing the total costs orders in Ashley’s favour to about $380,000. Soh has since paid all his dues to Ashley, finally bringing the dispute over whether Ashley had slowed down to wait for his competitors at the 2015 SEA Games Marathon (the “Act of Fair Play”), to a close.

RECAP on ashley vs soh rui yong

Now on to Soh’s case against Malik Aljunied.

“I forgive Malik”

Last Thursday, 9 June 2022, Soh made the headlines yet again after losing a defamation lawsuit that he commenced in 2019 against former Singapore Athletics (“SA”) director, Malik Aljunied (“Malik”). In a Facebook post to his fans on the same day, he said, inter alia, “I forgive Malik and wish him all the best moving forward with his life.” – but what exactly did Soh forgive Malik for?

In a succinct and impactful 32-page decision, District Judge Lim Wee Ming (the “Judge”) held that Malik’s statements of Soh were justified, even though they were defamatory. Here’s the summary.

What did Malik say?

The legal dispute between Soh and Malik commenced in 2019, while Ashley’s defamation proceedings (commenced June 2019) were already ongoing.

On 17 August 2019, Malik published on his Facebook profile page, a photo of himself carrying two children, carrying the statement:

“I hope one of you will eventually take up the 400m Hurdles. Do be careful of the marathon, it could end up messing up your mind and heart …”.

In reply to another Facebook user as to how “Marathon messes up the mind and heart”, Malik stated:

“it did! Big time! But observed only in one particular runner so far. It messed up his sense of logic and reason beyond repair. Feel really sorry for him. Let’s pray for him… (referred to in the pleadings as the “Words”).

In a further reply as to how the heart was affected, Malik stated,

“it seemed to have drained him of empathy, compassion, gratitude and the capability to love others…” (referred to in the pleadings as the “Additional Words”).

According to Malik, the aforesaid Facebook post and comments were removed about 15 hours after publication because he was advised by a colleague that they were “not in good taste”.

Soh had initially filed the suit against Malik in the High Court and claimed about $500,000 in damages but Malik successfully had the case transferred to the District Court. In closing submissions, and after appointing new solicitors, Soh narrowed his claim to $80,000, comprising of $70,000 in general damages and $10,000 in aggravated damages.

Soh’s Prima Facie Case was Made Out

The Judge decided that the statements made by Malik meant:

Soh’s sense of logic and reason has been impaired.
Soh is incapable of empathy, compassion, gratitude and the capability to love others.

(referred to as the “Sting of the Charge”)

Under Singaporean defamation law, a plaintiff need only prove that a statement lowers the victim in the estimation of right-thinking members of society, causes the victim to be shunned or avoided, or exposes the victim to hatred, contempt or ridicule. Essentially, any statement that could harm another’s reputation could be defamatory – not a difficult thing to prove.

But what if the statement made is true?

Indeed, any person may make a statement that disparages another’s reputation so long as it is true. This is in line with the right of freedom of speech protected under the Constitution of Singapore.

However, under Singaporean defamation law, the burden of proving that the statement is true lies with the defendant, not the plaintiff. It was therefore Malik’s job (not Soh’s) to prove that the Sting of the Charge was substantially true.

This was an interesting challenge for Malik, given the subjective nature of the statements that he made. To succeed in his defence of justification, Malik had to provide sufficient circumstantial evidence to show that the Sting of the Charge, which was derived from his subjective statements, were substantially true.

This is in sharp contrast with Ashley’s case, where the defamatory sting of Soh’s words (i.e. that Ashley is liar who lacks integrity) was derived from “statements of fact (made by Soh) alleging that Ashley did not slow down to wait for his competitors”. In Ashley’s case, Soh’s defence of justification was a lot less complex because all he needed to do was prove that Ashley did not slow down,which Soh failed to prove and thus failed in his defence.

Source: The Straits Times - The Plaintiff, Soh Rui Yong (left) and the Defendant, Malik Aljunied (right) Online

Malik Justified.

Malik succeeded in his defence of justification by proving that the Sting of the Charge was substantially true. The Judge focused on the following key areas:

The 2017 SEA Games;
That case with Ashley; and
Soh’s posts attacking SNOC after he was excluded from the 2019 SEA Games.

2017 SEA Games

The Judge found that Soh had behaved unreasonably and in an illogical manner and showed a lack of empathy, compassion and gratitude based on three incidents relating to the 2017 SEA Games, namely:

The dispute between Soh and SNOC on SNOC’s Blackout Period where Soh promoted his own sponsors and publicly disparaged SNOC’s officials for implementing this rule;
Soh’s cutting of ventilation holes in the attire provided by SA’s sponsor, 2XU, contrary to the instructions of 2XU; and
Soh’s public protest against SNOC’s requirement that he donate 20% of his prize money to SA.

2017 SEA Games – Blackout Period dispute

Soh promoted his own sponsors and in his post of 9 August 2017, made a personal attack that SNOC officials “who agreed upon implementing this rule, many of whom sit on comfortable salaries while policing the social media activity of the very athletes that make them money in the first place. Without the athletes … sports officials wouldn’t even have a job!”.

The Judge found that this personal attack was unreasonable and illogical. Whatever Soh’s views about SNOC’s blackout rule, the fact remains that it was the rule of the day and SNOC’s officials had to enforce the rule. It is inconceivable that the personal attack on SNOC’s officials would do anything to persuade SNOC to review its blackout rule. It did not appear that Soh would stand to benefit from such a personal attack, other than drawing the attention of his supporters. In the premises, the Judge found that Soh’s personal attack on SNOC’s officials was unreasonable and illogical.

2017 SEA Games – cutting sponsor’s attire

It was undisputed that Soh wore a 2XU singlet with ventilation holes cut into the singlet, contrary to 2XU’s instructions. The Judge decided that it was unreasonable of Soh to insist on wearing the cut singlet, when the sponsor had expressly stated that it was not agreeable to this. The Judge stated that this further showed that Soh was only thinking of himself, lacked empathy for the concerns of the sponsor, the concerns of SA which had to manage the sponsor, and the concerns of his fellow athletes who may be affected by any decision of the sponsor to review its sponsorship of athletes.

2017 SEA Games – donation of 20% of MAP award dispute

In relation to Soh’s public protest against SNOC’s requirement that he donate 20% of his Multi-Million Dollar Award Program (“MAP”) prize (which amounted to $2,000) to SA, the Judge decided that Soh went far beyond just criticising the administration of SA. Soh stated that “underperforming SA administrators … should be getting a 20 percent pay cut”. Although it may have been open to Soh to express concerns about SA which had also been expressed by other athletes, Sports Singapore and Singapore Sports Institute, it is hard to fathom how his unnecessarily combative and personal attacks on SA administrators stood to benefit either himself or his fellow athletes.

Again, it appears that Soh was simply grandstanding to his supporters, without caring whether his words would facilitate the change which he claimed was needed at SA. The words used by Soh were unreasonable and illogical and gave the impression that Soh was more concerned with stoking controversy, rather than working towards real change that would benefit the sporting community.

That case with Ashley

The Judge found that Soh’s conduct in Ashley’s case showed that he was unreasonable and illogical for the following reasons:

Soh only raised his allegation that the Act of Fair Play never happened three years after the incident. Yet, he expected this allegation to be accepted at face value and published posts denigrating SNOC as “clowns” and Ashley for “going to such lengths to salvage his sportsmanship tale” and that “the time and energy spent on this would be better served training and becoming a better athlete instead.”
SNOC had offered to allow Soh to see the statutory declaration of witnesses to the Act of Fair Play. However, Soh did not take up this offer. The Judge found that Soh had already made up his mind that he was in the right and everyone else who contradicted him was wrong, irrespective of what other witnesses had seen. Soh refused to keep an open mind and was impervious to the possibility that even if he himself had not observed the Act of Fair Play, there were other witnesses who may have witnessed it.
Soh went on to publish posts stating that SNOC “should also be ashamed at themselves for failing [to] conduct a proper investigation of the truth” and that SNOC had “failed to stay neutral and credible in the fact-finding process”. In doing so, Soh showed himself to be unreasonable and illogical in making these allegations without even taking into consideration the statutory declarations from witnesses that SNOC had obtained.

In his closing submissions, Soh relied on his evidence in re-examination that he had raised the issue that there was no Act of Fair Play in December 2015 with an SNOC official named Ho Shu Fen, and in August or September 2017 with Sports Singapore’s CEO, Lim Teck Yin, but there was no follow up. The Judge found this submission incongruent with his own post of 26 October 2018, where he stated that “I will now address the question of why I have only spoken up after 3 years”. He concluded that “My one and only regret is not speaking up sooner”. No mention was made that he had raised this allegation earlier with SNOC or Sports Singapore.

In light of the foregoing, the Judge found Soh’s assertion in re-examination that he had raised this issue earlier less than credible. In any event, Soh’s unreasonable and illogical conduct in relation to the Ashley case also stems from his refusal to consider that while he may not have personally witnessed Ashley’s Act of Fair Play, there could have been other witnesses who did.

Soh’s posts attacking SNOC after being excluded from 2019 SEA Games

In Soh’s post of 1 August 2019, he attacked and mocked SNOC, stating that: (a) “SNOC President Tan Chuan-Jin and his team have chosen to behave in such a petty manner”, and (b) their actions were “akin to primary school playground politics”.

The Judge found that the language Soh used went beyond expressing his objection to not being selected despite meeting the objective criteria. Soh’s personal attacks went far beyond any disagreement on whether SNOC should take into consideration his attitude and behaviour. The Judge found that the Soh’s personal attacks against SNOC had descended to a level that was unreasonable and illogical.

Decision on the issue of justification

In the light of the aforesaid reasons, the Judge found that Soh had persistently behaved unreasonably and illogically to the extent that it showed that his sense of logic and reason had been impaired.

The incidents highlighted by the Judge showed that Soh displayed a lack of empathy, compassion and gratitude. However, the meaning of the Additional Words go beyond this – the Judge accepted Soh’s position that the meaning of the Additional Words is that Soh is incapable of empathy, compassion, gratitude and the capability to love others. The mere fact that that Soh behaved in a manner showing a lack of empathy, compassion and gratitude, does not establish that he is incapable of empathy, compassion, gratitude and the capability to love others. In other words, a lack does not equate to an incapability.

In closing submissions, Soh sought to rely on his having coached and shared his training plan with Rafael Poliquit (“Poliquit”), a rival from the Philippines, who was going through setbacks in his performance. Poliquit eventually clocked his personal best at the 2018 Milo Marathon and credited Soh for his win. Unfortunately, Poliquit passed away in 2019 and Soh wrote a tribute to his friend and rival. Soh relied on Malik’s concession in cross-examination, that such a tribute would not be written by someone who lacks empathy and capacity to love others. The Judge accepted that Soh’s coaching, sharing of his training plan and tribute to Poliquit evidenced his capability to show empathy and to love others.

However, this did not detract from the other incidents which the Judge had referred to, which show that Soh’s sense of logic and reason had been impaired and he had behaved in a manner showing a lack of empathy, compassion and gratitude.

Under Section 8 of the Defamation Act (Cap 75, 2014 Rev Ed), a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.

In Gatley on Libel and Slander (12th Ed, 2013) (“Gatley”) at [11.16], in relation to the English equivalent of this provision, it was explained that “The logic of the provision is that the harm to reputation caused by the allegation(s) found to be true, in respect of which no damages may be recovered, is such as to render any injury to reputation that notionally might have been caused by the unproven allegation nugatory to the point of irrelevance.”

In the present case, the court weighed the proven allegations that Soh’s sense of logic and reason has been impaired and that he had behaved in a manner showing a lack of empathy, compassion and gratitude, against the unproven allegation that Soh is incapable of empathy, compassion and gratitude and the capability to love others.

In the end, the Judge found that Soh’s reputation was not materially injured by the allegation that Malik was unable to prove, taking into consideration the remaining charges that Malik succeeded in proving.

The Judge held that the obstinate and extreme extent to which Soh acted in an unreasonable and illogical manner showing that his sense of logic and reason had been impaired, as well as the instances in which he showed a lack of empathy, compassion and gratitude, overshadowed and eclipsed Soh’s reputation in relation to his capability to show empathy, compassion, gratitude and the capability to love others on other occasions.

Conclusion

Now that we’ve explored the underlying reasons why Malik’s defence of justification succeeded, and the process of defamation cases in Singapore where the burden lies with the defendant to prove his defence of justification, what does Malik have to be forgiven for? You be the judge.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of That.Legal LLC accepts or assumes responsibility, or has any liability, to any person in respect of this article.

“I forgive Malik”, says Soh Rui Yong, but what for?