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Lee Hsien Loong v Review Publishing Co Ltd and Another and Another Suit
[2007] SGHC 24
| Case Number | : | |
| Decision Date | : | 21 February 2007 |
| Tribunal/Court | : | |
| Coram | : | Sundaresh Menon JC |
| Counsel Name(s) | : | Peter Cuthbert Low (Peter Low Partnership) for the appellants; Davinder Singh SC, Wilson Wong, Jaikanth Shankar (Drew & Napier LLC) for the respondents |
| Parties | : | Lee Hsien Loong — Review Publishing Co Ltd; Hugo Restall |
Civil Procedure – Service – Leave to serve writs out of jurisdiction granted – Whether order granting leave should be set aside as abuse of process of court – Whether claims for damages and injunctive relief contained in writs confined to damages sustained or actions taken within Singapore – Order 11 r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed)
Civil Procedure – Service – Whether civil procedure convention subsisting between Singapore and Hong Kong – Whether treaty concluded between People's Republic of China and Singapore applying to Hong Kong – Order 11 r 4(1), O 11 r 4(2) Rules of Court (Cap 322, R 5, 2006 Rev Ed)
|
21 February 2007 |
Judgment reserved |
1 In what Thomas Friedman terms a “flattening world”, accessibility to instruments of mass media and communication – in particular, the internet – is dramatically shortening the globe’s communicative synapses and greatly increasing the potential reach and impact of any individual idea or expression. Such accessibility gives rise to power which holds promise but it also portends abuse. The transformation in how we transmit and receive information and ideas inevitably has important implications for the law. One illustration of this may be found in the increasingly common occurrence of defamation suits that straddle more than one jurisdiction. The archetypal case is one where the publisher of the allegedly defamatory words is resident in one jurisdiction while the impact of those words sounds in another (or many other) jurisdiction(s). The present appeals before me involve precisely this situation.
2 The road to pressing a claim for defamation against a foreign defendant can be a long one. For a plaintiff who alleges that certain publications are defamatory of him in his home jurisdiction, among the first steps to be taken in commencing proceedings against the foreign publisher is the need to obtain the leave of court to serve the writ out of the jurisdiction. This seemingly simple step can become somewhat involved. The plaintiffs (who are the respondents in the present appeals) did obtain leave and did effect service on the defendants (who are the appellants) but the validity of these efforts is now challenged. It is said first, that their claims do not fall within the ambit of O 11 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) so that leave to serve out of the jurisdiction could not validly have been given. Second, it is said that service of the writs was not effected in an appropriate manner. These issues in turn give rise to some ancillary but significant issues concerning the burden of proof and the separation of powers.
The factual background
3 The facts leading to the present appeals are relatively straightforward and are not contested. The respondents in these appeals are, respectively, the Prime Minister and the Minister Mentor of Singapore. The first appellant is the publisher of the Far Eastern Economic Review (“the Review”), a current affairs magazine that has an international circulation. The second appellant, Mr Hugo Restall, is the editor of the Review and, notably, the author of an article entitled “Singapore’s ‘Martyr’, Chee Soon Juan”, published in the July/August 2006 issue of the Review at pp 24–27 (“the disputed article”). This article was also published in the web version of the Review accessible on the internet, without charge, to any who bothered to visit the website. The respondents took offence at the contents of the disputed article, and having failed to reach an acceptable settlement with the appellants, they each commenced separate actions in Suits Nos 539 and 540 of 2006 against the Review and Mr Restall.
4 Because the Review is a company incorporated in Hong Kong and Mr Restall is ordinarily resident in Hong Kong and because both appellants declined to accept service in Singapore voluntarily, it was necessary for the respondents to serve the writs out of the jurisdiction. The respondents applied for leave to do so and their applications were granted on 28 August 2006. Service was effected by a process server on 4 September 2006 by personally serving Mr Restall and by leaving copies of the writs of summons, statements of claim and relevant court orders at the registered address of the Review. On 23 September 2006, the Review and Mr Restall entered appearance for the purpose of disputing the jurisdiction of the court pursuant to O 12 r 7 of the Rules.
5 It was accepted by the appellants before me that the challenge against the jurisdiction of this court in the final analysis rested on two main points. The first was whether the order granting leave to serve the writs out of the jurisdiction ought to be set aside as an abuse of the process of the court because the claims for damages and for injunctive relief contained in the writs were allegedly not confined to damages sustained or actions taken within Singapore. The second point of contention was that even if leave to serve the writs out of the jurisdiction had been properly granted, the writs had not been served in an appropriate manner because service had not been effected in accordance with the Treaty on Judicial Assistance in Civil and Commercial Matters between the Republic of Singapore and the People’s Republic of China (Government Gazette T2/2001, 28 December 2001) (“the Treaty”).
6 Before the assistant registrar, the appellants’ challenge was dismissed but with a slight reservation. While the assistant registrar was satisfied that it was sufficiently clear that the claims for damages were confined to losses arising from the publication of the disputed article in Singapore, she sought and obtained an undertaking from counsel for the respondents to limit the reach of any injunctive relief sought to Singapore. As to whether service of process had been effected properly, the assistant registrar found in favour of the respondents. Dissatisfied, the appellants filed these appeals against the whole of the assistant registrar’s decision.
Preliminary points
Application to permit foreign counsel to attend the hearing in chambers
7 Before the hearing of the appeals commenced, the appellants applied for permission for one Mr Tim Robertson SC from New South Wales, Australia to sit in at the hearing of the appeals, which (as is the norm for Registrar’s Appeals) was conducted in chambers. According to Mr Peter Cuthbert Low, who appeared for the appellants, Mr Robertson had been retained by the appellants from the onset of the proceedings against them and acted as their lead legal advisor. Mr Low submitted that he had been instructed as Singapore counsel by Mr Robertson. Mr Davinder Singh SC, who appeared for the respondents, objected to Mr Robertson’s attendance. He submitted that the application raised a question, first of principle and only then of discretion. Mr Singh submitted in effect that hearings in chambers were private. While permission to attend a hearing in chambers might be extended to one who was an employee or an agent of a litigant, Mr Robertson was neither. He accordingly submitted that there was no basis in principle to permit Mr Robertson’s attendance.
8 I accept that the starting point of the analysis is that hearings in chambers, unlike proceedings in open court, are private in nature. Thus, members of the public have no entitlement to attend proceedings in chambers. Mr Robertson however sought permission to attend the present appeals not in his capacity as a member of the public but as a legal adviser to the appellants. In my judgment, Mr Robertson’s interest in these proceedings was sufficient to bring him within the class of persons in whose favour I could conceivably have exercised my discretion. In fact, as I informed Mr Singh, I myself, as foreign counsel, have had the benefit of the courtesy of being allowed to attend proceedings in chambers with Singapore counsel extended to me.
9 Mr Singh then submitted that I should not exercise my discretion in Mr Robertson’s favour. He submitted that in considering the exercise of my discretion, it was appropriate to have regard, among other things, to the identity of the particular individual seeking permission to attend and the risk that the dignity or authority of the court might be compromised by that person, if he was allowed to attend. In this regard, Mr Singh drew my attention to an article published in the Sydney Morning Herald on 22 November 2005 headlined “We should impose sanctions: lawyer”, in which Singapore’s decision to execute a convicted drug trafficker, Nguyen Tuong Van, was criticised. Mr Robertson was quoted in the report as characterising Singapore as an “authoritarian regime” and pointedly remarking that “the present Singapore is controlled by the Government, as is the judiciary, and so in cases which have a political element in them the odds are stacked well and truly against the opponents of the regime”.
10 Mr Singh made two submissions on this. First, he submitted that Mr Robertson had manifested a proclivity to make such statements which were ill-founded and disrespectful of the judiciary, and in view of this, the court should not be placed in the position of having to respond to or defend itself in the face of any further remarks of a similar vein that Mr Robertson might make if he was permitted to attend the hearing in chambers. Secondly, Mr Singh submitted that inasmuch as the court was being asked to exercise its discretion, there was no reason at all for it to do so in favour of one who maintained a position that was openly disrespectful, even contemptuous, of the court. As Mr Singh put it: why open our doors to one whose mind was already shut?
11 Mr Low, in response, informed me that he had no knowledge of the remarks that had been reported in the article in question in the Sydney Morning Herald and attributed to Mr Robertson. I therefore stood the matter down for Mr Low to take instructions as to whether Mr Robertson had indeed made those remarks and whether he continued to stand by them. When we resumed, Mr Low informed me that Mr Robertson had made no adverse statements concerning the judiciary in relation to the present proceedings. As I pointed out to Mr Low, that, of course, was not my inquiry. Mr Low then confirmed that Mr Robertson did not deny making those statements. Nor, it appeared, was Mr Robertson inclined to withdraw or resile from those statements. Mr Low urged me to have regard to the fact that Mr Robertson came from a jurisdiction where the right to attend a hearing in chambers was not controversial. He further submitted that for someone with Mr Robertson’s background, such comments might not be regarded as exceptional. He submitted that the best way to counter Mr Robertson’s allegations would be to allow him to sit in and witness the fairness inherent in our court proceedings so that the truth might shine forth. To prevent him from attending the appeals, Mr Low contended, would only cement his belief that our legal system was unfair and opaque.
12 Mr Low’s arguments had a beguiling attraction but they missed a key point: what was the reason for which permission was being sought for Mr Robertson to sit in? The only grounds advanced by Mr Low were these: Mr Robertson wanted to see for himself how these proceedings were conducted and how the arguments were presented; and ultimately, it was said, allowing Mr Robertson to attend in chambers would help clear his misconceptions. In short, it seemed to me that Mr Robertson wanted to judge the judge.
13 In my judgment, I do have a very wide discretion in this regard but it is nonetheless to be exercised judiciously. It will be relevant in this context to have regard to the interest that the person, who is seeking permission, has in the litigation; the interests of the litigants themselves; the reasons for which such permission is sought; and the court’s interest in preserving and upholding its authority and dignity.
14 In the present case, Mr Singh’s submission that Mr Robertson should be excluded because he might otherwise misdescribe the conduct of the proceedings or the judiciary, left as little impression on me as Mr Low’s submission that he should be permitted to sit in so as to be satisfied about the fairness of these proceedings. This court has one primary interest and that is to do justice to all without fear or favour. I have no interest whatsoever in indulging Mr Robertson by seeking to allay his fears or in otherwise seeking to change his mind about the integrity of our judiciary. The judgments of this court speak for themselves.
15 The fact that the request was made on behalf of someone who had made openly disrespectful remarks about the judiciary and continued to stand by them even as he sought my indulgence was a factor I considered relevant. In my judgment, it would have been inappropriate in these circumstances for me to have turned the other cheek to Mr Robertson when I would not have done so for any citizen of this country. Furthermore, I was mindful that an exercise of my discretion in Mr Robertson’s favour in these circumstances might have been misconstrued as acquiescence in his views and this would have been unacceptable, to say the least.
16 Even so, I was anxious to ensure that the appellants, who were the litigants before me, should not be prejudiced by reason of the misconceptions of their legal advisor. I therefore asked Mr Low if the request was being made on the basis that he might need Mr Robertson’s assistance in the course of conducting the appeals. Mr Low candidly and explicitly stated that he did not require Mr Robertson’s assistance in the appeals. Indeed, Mr Low was satisfied and confirmed that through him and his firm, the appellants were fully and ably represented.
17 In those circumstances, it was apparent that the appellants’ interests generally and in particular their fundamental right to be heard would not be compromised by Mr Robertson’s absence from my chambers during the hearing of the appeals. Furthermore, I was satisfied that in the interest of upholding the dignity and authority of this court, he should be excluded. I accordingly denied the request.
The burden of proof
18 Both counsel agreed that the burden of proving that the respondents’ claim was within the ambit of O 11 rr 1(b), 1(f) and/or 1(p) of the Rules, so as to warrant the grant of leave to serve the writ out of the jurisdiction, lay with the respondents. What was initially disputed was whether the burden of proving that service of process had (or had not) been effected in an appropriate manner was on the respondents (as plaintiffs) or the appellants (as defendants). Mr Singh relied on Pacific Assets Management Ltd v Chen Lip Keong
19 Mr Low accepted Mr Singh’s characterisation of the holdings in Pacific Assets and Hugo Boss, but he submitted that in both instances the question of burden of proof had simply been assumed by the court without detailed argument or reasoning. Mr Singh accepted the force of this observation. The appellants further submitted that it accorded with good sense that the party that seeks to effect service out of the jurisdiction should retain the burden of proving all the elements necessary to found jurisdiction in a subsequent application to set aside. Mr Low submitted this was because service out of the jurisdiction is an exorbitant jurisdiction which has the potential to threaten comity among nations and for this reason, the benefit of any doubt as to whether service has been effected properly should be given to the foreign defendant: Siskina (Cargo Owners) v Distos SA [1979] AC 210 (“The Siskina”) at 254–255, citing The Hagett [1908] P 189 at 201. It would run counter to this to impose the burden of proving that service had not been effected properly upon the foreign defendant. Mr Low also relied on the following dicta in the majority opinion of the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 564:
Where a case falls within a category in which the legislature has seen fit to allow service outside the jurisdiction if, but only if, the leave of a court is first obtained, that court should not grant leave unless it is positively persuaded that it should do so. Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason. In such a case the onus should remain on the plaintiff on a subsequent application to set aside the service outside the jurisdiction. Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer an enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order.
20 In my judgment, and Mr Singh subsequently conceded the point, the appellants were correct in their assertion that the burden of proving all the elements necessary to found jurisdiction, including proper service, remains on the respondents, as plaintiffs. I find the reasoning in Voth persuasive. Furthermore, as Mr Low submitted, in order to invoke the jurisdiction of the High Court, a plaintiff seeking to sue a foreign defendant must satisfy s 16(1) of the Supreme Court Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”), which is in the following terms:
16. —(1) The High Court shall have jurisdiction to hear and try any action in personam where —
(a) the defendant is served with a writ or other originating process —
(i) in Singapore in the manner prescribed by Rules of Court; or
(ii) outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court; or
(b) the defendant submits to the jurisdiction of the High Court.
[emphasis added]
21 It is clear from s 16(1)(a)(ii) of the SCJA that a plaintiff’s jurisdictional title to sue a foreign defendant depends upon the claim falling within the circumstances authorised by the Rules (in other words, the sub-rules of O 11 r 1) as well as the writ being served in the manner prescribed by the Rules. Mr Low submitted that it was only upon both conditions being met that the jurisdiction of the court could properly be invoked. I agree with this. It is the plaintiffs who wish to invoke the court’s jurisdiction in respect of these foreign defendants and since the plaintiffs assert that the court has the jurisdiction, it falls upon them to prove it. That burden lay with the plaintiffs when they applied for leave to serve the writs out of the jurisdiction, and it remained with them when a challenge was subsequently brought to dispute the jurisdiction of the court.
Abuse of process – whether the respondents’ claims fell within O 11 r 1
22 In their applications for leave to serve the writs out of the jurisdiction, the respondents asserted that their claims fell squarely within O 11 rr 1(b), 1(f) and 1(p) of the Rules. These provisions state:
Cases in which service out of Singapore is permissible (O 11, r 1)
1. Provided that the originating process does not contain any claim mentioned in Order 70, Rule 3 (1), service of an originating process out of Singapore is permissible with the leave of the Court if in the action —
…
(b) an injunction is sought ordering the defendant to do or refrain from doing anything in Singapore (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);
…
(f)
(i) the claim is founded on a tort, wherever committed, which is constituted, at least in part, by an act or omission occurring in Singapore; or
(ii) the claim is wholly or partly founded on, or is for the recovery of damages in respect of, damage suffered in Singapore caused by a tortious act or omission wherever occurring;
…
(p) the claim is founded on a cause of action arising in Singapore ...
23 The common thread running through these provisions is that the claim or cause of action or relief sought should have a sufficient nexus with Singapore. The need to establish a nexus with the home jurisdiction serves to prevent the unwarranted extension of the jurisdiction of this court beyond the territorial limits of this country. As to this, there can be and was no quarrel. The appellants however contended that the respondents’ claims against them were not in fact as narrowly tailored as required by O 11 rr 1(b), 1(f) and 1(p) of the Rules. Specifically, it was submitted that:
(a) in relation to O 11 r 1(b), the respondents’ claim for injunctive relief was not confined to publications or republications in Singapore but extended to publications or republications anywhere else in the world;
(b) in relation to O 11 r 1(f), the respondents’ claim for damages was not limited to injury suffered in Singapore but extended to vindication of the reputation of the respondents anywhere else in the world; and
(c) in relation to O 11 r 1(p), the respondents’ claim was not confined to causes of action arising in Singapore and that the respondents were pursuing damages and injunctive relief in respect of publications worldwide.
24 In short, the appellants’ contention was that in some respects at least, the respondents’ claims had no sufficient nexus with Singapore. In support of this, the appellants contended that the statements of claim (“the SOC”) lacked any specification as to the place of publication and the location of the readers in whose eyes the respondents’ reputations are alleged to have suffered. Furthermore, no words limited the claim for damages and injunctive relief to Singapore. It bears noting that it was only the SOC that the appellants complained were vague or exorbitant and contrary to the requirements of O 11 r 1. The appellants did not take issue with the affidavits filed by the respondents in support of their application for leave to serve out of jurisdiction. On the contrary, the appellants alleged that the certainty with which the affidavits asserted that the respondents’ claims were limited to Singapore was misleading and was evidence of the respondents’ contravention of their duty to make full and frank disclosure when making the leave application ex parte. On this basis, the appellants submitted that it was an abuse of the process of the court for the respondents to have sought and obtained leave to serve the writ out of the jurisdiction.
25 It is useful to return to first principles and to understand the rationale for the rule that underpins the cases relating to abuse of process. In my judgment, there are a number of interests that the abuse of process doctrine is meant to protect. The first, explained above, is to guard against the unjustified extension of jurisdiction beyond the home jurisdiction’s territorial limits. In Eyre v Nationwide News Pty Ltd
Any loss of reputation he has suffered abroad from publication in another country is a matter for the Courts exercising jurisdiction in the country of publication. Here it seems to me that the plaintiff is claiming damages in New Zealand for loss of reputation both in New Zealand and Australia. The pleadings do not confine him to the cause of action arising within the jurisdiction. This exceeds the jurisdiction of the Court and in addition I am not satisfied there is a question of substance in this country. [emphasis added]
26 A second, perhaps more pertinent interest in so far as the present appeals are concerned, is to ensure that litigants do not unjustly draw foreign defendants into a jurisdiction thereby causing inconvenience to them. This principle also explains the firmness with which the courts have resisted attempts to invoke their jurisdiction when only minor damage has taken place in their jurisdiction and the real desire is to recover damages for injuries suffered in other jurisdictions (such as in Eyre). In a similar vein, the courts have refused to allow their jurisdiction to be invoked where what the plaintiff intends is to draw the defendant into the home jurisdiction and then tack on other causes of action that have no connection with that jurisdiction (as was observed in Diamond v Sutton (1866) LR 1 Ex 130 (“Sutton”)).
27 As Pearson J noted in Societe Generale de Paris v Dreyfus Brothers (1885) 29 Ch D 239 at 242-243:
[I]t becomes a very serious question, and ought always to be considered a very serious question, whether or not, even in a case like that, it is necessary for the jurisdiction of the Court to be invoked, and whether this Court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this Court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction. [emphasis added]
28 More recently, in Chadha v Dow Jones & Co Inc
If there is a substantial complaint with respect to the English tort, having regard to the scale of the publication within the jurisdiction and the extent to which the plaintiff has connections with and a reputation to protect in this country as against the inconvenience to the defendant in being brought here to answer for his alleged wrong-doing then service of the writ abroad is to be ordered. The onus of showing that the plaintiff has sufficient connections with and a sufficient reputation to protect in this country is on the plaintiff … The principle may have been better stated than I have stated it, by Lord Buckmaster in Johnson v Taylor Brothers & Co Ltd [1920] AC 144 at 160:
It must, however, be remembered that the issue of the writ, even in a case within the words of the rule, can only be made by leave of the court, and, in granting such leave, regard ought to be had to the real breach in respect of which the action is brought, and not merely to a breach on which it is necessary to rely, not to obtain relief, but only to found jurisdiction under the rule.
In his judgment in Kroch v Rossell [1937] 1 All ER 725 at page 731 Scott LJ having cited the passage from the speech of Lord Buckmaster cited above, said:
… but the point of the observation is that the reality of the question ought to be looked at, and, if the reality of the cause of action is one which belongs to a foreign country, and not to this country, and above all, where it is a question which probably would be better tried, for any particular reason which appears in the circumstances of the case, in the foreign country, leave ought not to be granted.
[emphasis added]
29 The wastage of judicial resources in adjudicating a claim which, in truth, has nothing to do with the home jurisdiction but is merely an attempt to vindicate one’s global reputation is a third interest protected by the abuse of process doctrine. As explained by Lord Phillips of Worth Matravers MR in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 at [54]:
An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level-playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.
While this dictum was expressed in the context of striking out a defamation claim as an abuse of process, Lord Phillips MR expressly noted at [69] and [70] that this rationale also applied in cases where there was a challenge to the jurisdiction of the court.
30 What is clear from all these cases is that the courts examine the substance of the inquiry: is the plaintiff seeking to bring the foreign defendant into the home jurisdiction to pursue a claim for injury arising within jurisdiction or is he, in reality, seeking in this jurisdiction to vindicate the alleged damage to his reputation in other jurisdictions? The primary mechanism to ensure that a plaintiff does not abuse the jurisdiction of the court, is found in the need for the plaintiff to seek leave to serve out. In this context, the courts require that a plaintiff frames his claim such that it is limited to the home jurisdiction. If the claim is not sufficiently circumscribed or if there is ambiguity, leave may be refused or the claim may have to be amended or an undertaking may be insisted upon to the effect that the plaintiff will not pursue any claim for injury suffered elsewhere (see below at [61] to [67]).
31 The first question that arises in these appeals is whether the assistant registrar who granted the respondents leave to serve out on 28 August 2006 exercised her discretion properly and ensured that the reliefs sought would be limited to Singapore as required under O 11 r 1 of the Rules. In my judgment, she did and no grounds have been shown for the order, granting leave to serve out, to be set aside. In my view, the SOC clearly demarcated the boundaries of the respondents’ claim. Beyond that, the affidavits filed in support of the respondents’ applications for leave to serve out were also wholly unambiguous as to the scope of the remedies sought. Finally, if any doubts remained, the undertaking given by counsel for the respondents at the hearing of the appellants’ challenge to jurisdiction in the court below on 15 November 2006 was more than sufficient to quash any uncertainty in respect of the real scope of the respondents’ claim against the appellants. I elaborate on each of these conclusions below. Towards the end of the arguments before me, I asked Mr Low if he accepted that the rationale underlying the rule is to protect a foreign defendant against abuses arising in the circumstances I have identified above. Mr Low said he accepted that this was so but he submitted it was irrelevant. He maintained that as long as the statement of claim is capable of being read as supporting a claim for any relief that is not connected to Singapore, then regardless of what is set out in the affidavit supporting the application for leave and regardless of any undertaking offered by the plaintiff the court must set aside the order giving leave to serve out. In my judgment, such a proposition accords neither with good sense nor with the case authorities and in that light turn to analyse each of these aspects of the arguments.
The statements of claim
32 The appellants’ primary complaint concerning the SOC related to the manner in which certain paragraphs, in particular para 32, had been framed with such generality that there could be no assurance that the respondents were limiting their claim to losses suffered in Singapore. Paragraph 32 reads:
32. In the circumstances, the Defendants are jointly and severally liable to the Plaintiff.
And the Plaintiff claims:
(a) damages to be assessed;
(b) an injunction restraining the publication, sale, offer for sale, distribution or other dissemination by any means whatsoever of the defamatory allegations, or other allegations to the same effect;
(c) costs; and
(d) such further and/or relief as this Honourable Court deems fit.
33 If this was all that the SOC contained, the appellants’ complaints might have stood on a surer footing; but that was not the case, and there was simply no basis to read para 32 in isolation from the rest of the SOC.
34 Before analysing the SOC, it is worth noting that the question whether an internationally disseminated libel constitutes a separate and distinct tort actionable in each jurisdiction where there has been publication or whether it gives rise to a single global cause of action was quite recently considered by the House of Lords in Berezovsky v Michaels [2000] 1 WLR 1004 (“Berezovsky”). Lord Steyn, writing for the majority, rejected the notion of a global cause of action and affirmed the principle that each publication gives rise to a separate tort. The following observations at 1012–1013 are instructive:
But counsel put forward the global theory on a reformulated basis. He said that when the court, having been satisfied that it has jurisdiction, has to decide under Order 11 whether England is the most appropriate forum “the correct approach is to treat the entire publication – whether by international newspaper circulation, trans-border or satellite broadcast or Internet posting – as if it gives rise to one cause of action and to ask whether it has been clearly proved that this action is best tried in England.” If counsel was simply submitting that in respect of trans-national libels the court exercising its discretion must consider the global picture, his proposition would be uncontroversial. Counsel was, however, advancing a more ambitious proposition. He submitted that in respect of trans-national libels the principles enunciated by the House in the Spiliada case [1987] AC 460 should be recast to proceed on assumption that there is in truth one cause of action. The result of such a principle, if adopted, will usually be to favour a trial in the home courts of the foreign publisher because the bulk of the publication will have taken place there. Counsel argued that it is artificial for the plaintiffs to confine their claim to publication within the jurisdiction. This argument ignores the rule laid down in Diamond v Sutton (1866) LR 1 Ex 130, 132 that a plaintiff who seeks leave to serve out of the jurisdiction in respect of publication within the jurisdiction is guilty of an abuse if he seeks to include in the same action matters occurring elsewhere: see also Eyre v Nationwide News Pty Ltd
35 In my judgment, those observations are equally applicable to this jurisdiction. It follows that in analysing the SOC, the inquiry is directed at whether in fact the respondents are seeking to include a claim to relief founded on matters occurring outside this jurisdiction having regard to the fact that each publication gives rise to a separate tort. The respondents’ position is that the SOC pleads publication only within the jurisdiction.
36 The first requirement in proving defamation is the need to demonstrate that the impugned statement is defamatory. This, in turn, may be assessed in one of two ways. The first is to show that the words are defamatory in the light of their natural and ordinary meaning as ascribed by an ordinary, reasonable person in society using his common sense and general knowledge of matters in the public domain: see, for example, Aaron v Cheong Yip Seng
37 In this regard, Mr Singh submitted that harm to the reputation of the plaintiff takes place when the defamatory communication is understood in the sense complained of. Unless and until it has been understood by an audience in that sense, there has been no real publication to speak of and the tort is not complete. He relied on the following extract from the decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433 (“Gutnick”) at [25]–[27]:
The tort of defamation, at last as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care … But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Perhaps, as Pollock said in 1887, the law went “wrong from the beginning in making the damage and not the insult the cause of action” for slander but it is now too late to deny that damage by publication is the focus of the law …
Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.
The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action.
[emphasis added]
38 In my judgment, Mr Singh is correct in this submission and I turn to consider the SOC in this light. The first indication that the SOC were not as broadly scoped as the appellants suggested may be found in the introductory paragraphs in a section entitled “Part B: Background and Context”. Paragraph 4 states:
The following matters…are in the public domain and/or are of general knowledge. At trial, the Plaintiff will refer to the relevant articles and programmes published in the local print and broadcast media. [emphasis added]
39 This was a plain indication that the respondents will rely on matters published in the local print and broadcast media to establish what was in the public domain or formed part of the general knowledge of those to whom publication took place. At para 6 of the SOC, the respondents made reference to “widespread interest in Singapore in what has become known as the ‘NKF Saga’”. This was a reference to allegations of financial mismanagement surrounding the National Kidney Foundation (“the NKF”) a charitable organisation in Singapore. After particularising the details of this saga, the respondents reiterate at para 7 that “the facts and circumstances set out herein were extensively reported in the local print and broadcast media and were and are widely known in Singapore”. Reference is then made in paras 10 through 13 to an action brought by the respondents against certain numbers of the Singapore Democratic Party in respect of an article published by them entitled “Government’s role in the NKF scandal”.
40 In Part C of the SOC, the defamatory words are set out. There are references to publication of these words in the July/August 2006 issue of the Review as well as on various blogsites and websites on the internet. Part D pleads the matters relied on by the respondents to establish that the words complained of refer to them.
41 There then follows Part E which pleads the meaning that the plaintiffs contend. The material portion of para 23 states:
In the circumstances, the words, in context … and in their natural and ordinary meaning, meant or were understand to mean … [emphasis added]
42 Paragraph 24 then states:
Further and/or alternatively, the words were understood to bear the meanings pleaded at paragraph 23 above by way of innuendo.
PARTICULARS
PURSUANT TO ORDER 78 RULE 3 OF THE RULES OF COURT
The Plaintiff will rely on the inference that a substantial but unquantifiable number of unidentifiable Singaporeans would have watched and/or read the media reports referred to in Part B herein and would therefore have knowledge of the facts and/or matters pleaded in Part B herein. They would therefore have understood the Words in the meanings set out at paragraph 23 above.
[emphasis added]
43 Mr Singh submitted that on a fair perusal of the SOC there is simply no basis for finding that the respondents were making a claim going beyond the jurisdiction. Throughout the SOC, the respondents referred to facts within the knowledge of Singaporeans. The entire context relied upon to establish the alleged defamatory meaning of the words used consists of matters within the knowledge of Singaporeans.
44 In my judgment, this is correct. It is plain from a fair reading of the SOC as a whole that the respondents were in fact alleging that the disputed article took its sting from the surrounding circumstances known to Singaporeans by reason of matters that had been very widely publicised in the local media. If indeed the respondents were seeking relief in respect of publications outside Singapore, then as Mr Singh observed, it would have been necessary to set out the context in considerably broader terms in the SOC to sustain the contention that the defamatory meanings pleaded would also have been ascribed to the disputed article by readers in other countries.
45 Mr Singh supplemented this by reference to the decision of Gray J in Al Amoudi v Brisard [2006] 3 All ER 294 to the effect that there was no presumption of law that publication on the internet takes place to a substantial and unquantifiable number of people. Gray J had noted in that case at 301 that publication could be proved by direct evidence or by establishing a “platform of facts from which the tribunal of fact could properly infer that substantial publication within the jurisdiction had taken place” Mr Singh submitted that the pleadings before me simply did not present such a platform upon which the respondents could invite any inference being drawn as to publication (in the sense described in Gutnick, [37] supra) in any jurisdiction other than Singapore.
46 In the face of all this, Mr Low was driven to submit that someone in India or Vietnam for instance, who read the article without the context pleaded by the respondents might well conclude that it was defamatory. I observed that this was contrary to the appellants’ primary position that the words used are not defamatory and Mr Low then retreated somewhat from this.
47 Mr Low did also point to para 20 of the SOC where the respondents are described as “well known” figures “around the world”. Why was there a need to particularise this fact if the claim was confined to Singapore? There is a short answer to this. There is nothing inconsistent between describing the respondents’ reputations as global in nature and maintaining that the relief sought was confined to Singapore. These were merely assertions of fact. In addition, it might be argued that the respondents’ worldwide reputation is inextricably linked to their reputation in Singapore, and that the gravity of their loss of reputation in Singapore (if any) should also take into account the international character of their reputation. It does not fall upon me to decide whether such an argument will succeed if advanced. What I do have to decide is whether it would be reasonable to hold by dint of the one-line description of the respondents as well-known internationally that in truth and reality, the respondents were seeking to draw the appellants into jurisdiction with a view to mounting a claim for reputational loss suffered globally. In my judgment, that plainly would not be reasonable.
48 In the final analysis, it comes down to this: is there any basis upon which the SOC as pleaded and taken as a whole could sustain a finding of publication to someone outside Singapore? In my judgment, the answer to that is no. It follows that the remedies pleaded at para 32 when read in context are confined to Singapore because the remedies that a court may order are contingent on the facts that are pleaded in the SOC and subsequently proved. Given my finding that the particular facts pleaded by the respondents, as to context and publication, were suitably tailored to confine their claims to Singapore, I am satisfied that the SOC were not in breach of the requirements of O 11 r 1 of the Rules.
The affidavits
49 Even if I were mistaken in my reading of the SOC, any ambiguity is easily resolved by examining the respondents’ affidavits filed in support of their applications to serve out of jurisdiction, which clearly limit their claims to Singapore. The appellants accepted that the affidavits clearly confined the claim within Singapore. However, they submitted first, that it was not proper to have reference to the affidavits and second, that the respondents in fact misrepresented their claim in the affidavits.
50 In support of their argument that the affidavits should not be referred to in assessing whether a claim falls foul of O 11 r 1 of the Rules, the appellants cited a passage in Singapore Court Practice 2006 (Jeffrey Pinsler, ed) (LexisNexis, 2006) at para 11/2/3, which states that the legal basis of a plaintiff’s claim must be set out in the statement of claim. It is difficult to see how this assists the appellants’ position because that passage merely explains the distinction between a writ that is to be served out of the jurisdiction and one that is not. In the latter case, the only obligation in pleading is to raise the material facts that will be relied on. Nowhere in that passage is it suggested that the affidavit may not be looked at to clarify or resolve any ambiguity in a statement of claim when deciding whether a plaintiff’s claim falls within O 11 r 1 of the Rules. Indeed, an affidavit is generally the surer indication of the plaintiff’s intentions because he is not only required to exercise utmost good faith in deposing to his affidavit (Transniko v Communications Technology
51 In Thomas v The Duchess Dowager of Hamilton (1886) 17 QBD 592 (“Thomas”), the English Court of Appeal, in deciding whether the judge below had been correct to impose an undertaking on the plaintiff to limit his claim within jurisdiction, found that it was proper to have reference to the affidavit filed in support of the leave application. Lord Esher MR, at 596, wrote:
I think that Day, J., was right in entertaining doubt whether on the affidavits any breach of the contract was shewn to have taken place in England, and having that doubt I think it was competent to him to make the order he did make, and that it should be restored. [emphasis added]
52 In Kroch v Rossell [1937] 1 All ER 725, Slesser LJ at 727 cited favourably the following observation in Badische Anilin und Soda Fabrik v Chemische Fabrik vormals Sandoz (1903) 88 LT 490 at 496:
There are many cases in the books in which, after leave has been given to issue a writ for service out of the jurisdiction and a motion to discharge it has been refused by a judge of first instance, the Court of Appeal has said that they thought the order ought to be discharged. And they have, under certain circumstances, beyond all doubt gone into the facts of the case with a view to considering whether the plaintiff had or had not a probable cause of action such as ought to be tried against a defendant out of the jurisdiction. It seems to me that the court is bound to some extent to look to the affidavits, and to see, what is the real point in issue between the parties. [emphasis added]
53 In my view, the point simply is this: if at the stage of the application for leave to serve out, a court is entitled to scrutinise a plaintiff’s affidavit to assess whether the claim falls within O 11 r 1 of the Rules (that, after all, being the very point of filing the affidavit in support of the application), it would be illogical to hold that if a challenge is subsequently brought against the jurisdiction of the court, the reviewing court may not look at the affidavit. When the affidavits filed by the respondents in this action are considered, the specificity with which these affidavits address the scope of the reliefs sought against the appellants is more than sufficient to dispel any lingering uncertainty that may persist. In this regard, as I have noted at [24] above, there was no dispute that the affidavits did make it very clear that the respondents’ claims were confined to Singapore.
54 The appellants then submitted that the respondents, in stating in their affidavits that their claim was limited to Singapore, had misrepresented the true nature of their claim and therefore failed in their obligation to give full and frank disclosure. This argument was quite seriously misconceived on several grounds. First, it rests upon this court agreeing, that the SOC did not properly limit the claim to Singapore. Since I have found that the SOC did limit the scope of the respondents’ claim to Singapore, this argument cannot stand on the facts.
55 More importantly, I had considerable difficulty following Mr Low’s argument on this point. The affidavit for leave to serve out of the jurisdiction was filed within three days of the writ. I note that the allegation being made was that the respondents by stating in their affidavits that their claims were confined to Singapore, had deliberately misrepresented the position. I asked Mr Low if he was suggesting that the respondents were aware that the SOC impermissibly sought relief outside Singapore and were saying the contrary in the affidavit in an attempt to fool the court into giving leave to serve the SOC out of the jurisdiction. He initially answered in the affirmative but this led to my next query: why would they do that since it was inconceivable in the light of what was clearly set out in the affidavits that they could possibly have maintained such claims? Mr Low was unable to respond to this beyond stating quite candidly that he saw the force of the observation that underlay my question. In my judgment, this was a hopeless allegation that made no sense at all. The respondents could not have been trying to preserve a claim for relief outside Singapore when their affidavits clearly disavowed any such intent.
56 I finally add the observation that even if a plaintiff is found to have been less than forthcoming in his affidavit, that would only entitle but not require a court to set aside the order granting leave to serve out of jurisdiction. In Transniko (at [50] above), Kan Ting Chiu J summarised the applicable principles in the following manner (at [11] and [12]):
11 Where an ex parte application for leave to serve a writ out of jurisdiction was made, the applicant is under a duty to make full and frank disclosure of all matters material to the application. We need only to refer to the most recent of the cases on this point cited by counsel for the defendants, the English Court of Appeal’s decision in Trafalgar Tours Ltd v Henry [1990] 2 Lloyd’s Rep 298, where Purchas LJ (with whom Nourse and Beldam LJJ concurred) said (at p 308) that ‘there is a heavy duty upon those applying ex parte under RSC O 11, r 1 for leave to serve a writ out of the jurisdiction … to make full and frank disclosure.’
12 The duty on the applicant is onerous, and if he fails to discharge it, the leave granted may be set aside even if the non-disclosure is innocent. In Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289, Lord Wright held (at pp 306–307) that although the failure in that case was not tainted with the slightest suggestion of bad faith, ‘The court has a discretion to set aside an order made ex parte when the applicant has failed to make sufficient or candid disclosure.’ [emphasis added]
This was followed by Woo Bih Li JC (as he then was) in PT Garuda Indonesia v Birgen Air
57 That the power of the court to set aside leave granted to serve out of jurisdiction is discretionary may also be gleaned from the approach of the courts taken in relation to affidavits filed in support of ex parte injunctions. In Asian Corporate Services (SEA) v Eastwest Management (Singapore Branch)
43 We now turn to the final issue as to whether there had been material non-disclosure. It is settled law that on an ex parte application, the applicant must disclose to the court all matters within his knowledge or which ought to have been within his knowledge, which are material to the proceedings and which may be in favour of the party against whom the application is made: see The King v The General Commissioners for the Purposes of the Income Tax Acts for the District of Kensington, ex parte Princess Edmond de Polignac [1917] 1 KB 486 at 514 and Tay Long Kee Impex Pte Ltd v Tan Beng Huwah
…
45 However, it does not follow that every non-disclosure would warrant a discharge forthwith. Whether a non-disclosure is of sufficient materiality to justify or require an immediate discharge of the ex parte order without going into the merits, must depend on the importance of the fact to the issues which are to be decided by the judge on the ex parte application. Even then, sometimes, “[a] locus poenitentiae may … be afforded”: see Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1357. Of course “material” does not mean decisive or conclusive: see Tay Long Kee Impex at [21]
58 There is no reason in principle why there should be a difference in approach between an application for leave to serve out of jurisdiction (under s 16(1) of the SCJA) and one for an injunction (pursuant to s 18(1) of the SCJA read with ss 3(a) and 4(10) of the Civil Law Act (Cap 43, 1994 Rev Ed) as well as s 18(2) of the SCJA read with para 5 of the First Schedule to the SCJA). Both situations deal with the consequences of misleading a court to exercise its powers in circumstances where, by their nature, the court would not have had the benefit of opposing counsel. If, in relation to the imposition of ex parte injunctions (including draconian Anton Piller orders and worldwide Mareva injunctions), it is not necessarily just to set aside the order solely because the affidavit supporting the injunction had been misleading in some way, it follows that the power to set aside an order granting leave to serve out of the jurisdiction on the basis of a supporting affidavit that was similarly misleading is equally a matter for the court’s discretion. In this regard, it is apposite to refer to a recent judgment of the English High Court in Network Telecom (Europe) Ltd v Telephone Systems International Inc [2004] 1 All ER (Comm) 418. In that case, the court had to decide whether there was a continuing obligation on a plaintiff who had been granted leave to serve out of the jurisdiction to inform the court of any new circumstances that occurred between the time leave was granted and the process was served. The court concluded that there was such an obligation. In that case, Burton J referred to the similar nature of the requirements applicable to affidavits supporting ex parte injunctions on the one hand and leave for service out on the other. At [53], he held:
A court willing to make that kind of order at the instance of one party has to rely on that party to make the fullest and frankest disclosures of any matter that might affect the mind of the judge in granting the order, even to waver, never mind actually to refuse to make the order, but the rule as to full and frank disclosure is not limited to Mareva or Anton Pillers or to ex parte injunctions. Indeed just as old as the 'golden rule' in relation to injunctions is the identical rule in principle, applicable to service out of the jurisdiction. …
59 Then, in discussing the possible sanctions for non-disclosure of material facts, Burton J remarked, at [66], that:
This issue applies as much in relation to service out of the jurisdiction as it does in relation to a Mareva injunction or an Anton Piller. …
60 In my judgment, while a court has the power to set aside an order granting leave to serve out for breach of the “golden rule” that there be full and frank disclosure during the leave application (even if that breach was committed innocently), this is ultimately a discretionary power and a court is entitled to examine all the circumstances of the case to determine whether in any given case that is to be exercised. Because I have found that there has been no material non-disclosure at all in this case (see [55] above), it is not necessary for me to say anything further on this point.
The undertaking
61 Finally, Mr Singh submitted that even if the SOC were ambiguous as to the scope of the reliefs sought against the appellants, and assuming further that the affidavits filed in support of the respondents’ application for leave to serve out did nothing to clarify matters, the undertaking that he had proffered sufficed to address any possible cause for concern.
62 The appellants, on the other hand, disputed the notion that any uncertainty in the SOC could be cured by an undertaking. In particular, Mr Low relied on this passage in Eyre ([25] supra at 854–855):
Here it seems to me that the plaintiff is claiming damages in New Zealand for loss of reputation both in New Zealand and Australia. The pleadings do not confine him to the cause of action arising within the jurisdiction. This exceeds the jurisdiction of the court and in addition I am not satisfied there is a question of substance in this country. I have not overlooked the fact that counsel for the plaintiff has offered to give me an undertaking that proceedings will not be commenced in Australia. [emphasis added]
63 There were two reasons underlying the court’s decision in Eyre to set aside the order granting leave: the first was that the pleadings exceeded the jurisdiction of the court (ie, the issue that has been raised before me) and the second was because the extent of the tort allegedly committed in New Zealand was not sufficiently substantial. The observation of the court on the relevance of the undertaking was directed at the first of these reasons. It is clear in my view that Eyre cannot support the proposition that the appellants urge upon me. An undertaking not to commence proceedings in other jurisdictions cannot redress the wrong that consists in the pleadings not limiting the claim to reliefs within the home jurisdiction. That is commonsensical. The undertaking in Eyre addressed a completely different point, namely the concern of multiplicity of proceedings. But it did nothing to address the concern that the proceedings in New Zealand sought relief for wrongs allegedly done and damages allegedly suffered in Australia. The present appeals are starkly different because the respondents have undertaken not to pursue in Singapore any claim except those relating to Singapore. This is precisely what the undertaking offered by the plaintiff in Eyre did not do.
64 Set against this is a line of cases holding that an undertaking such as the one proffered on behalf of the respondents in the present appeal would ordinarily suffice to cure any deficiency in the pleadings. From as far back as Sutton ([26] supra), the courts have accepted that an undertaking not to pursue claims exceeding jurisdiction would cure a potentially defective writ or statement of claim. That case concerned an action for libel printed in a newspaper edited and published in Jersey but also circulated in England. The court was of the view that while there was sufficient publication in England to justify service out of jurisdiction, the plaintiff had to give an undertaking to confine his cause of action to the harm suffered in England. Having failed to give the undertaking, the court set aside the writ.
65 In Thomas ([51] supra), the English Court of Appeal held that it was proper for the judge in the court below to extract an undertaking from the plaintiff to limit his claim to relief within the jurisdiction if it was doubtful whether the claim would be so restricted. Lord Esher MR, who delivered the leading judgment, observed, at 596, that:
I cannot say that the affidavits shew clearly to my mind that there was any breach of the contract in England. It may turn out that there was, but the affidavits leave the matter in great doubt, and when that is the case I am of [the] opinion that a judge does not go beyond his discretion when he imposes such conditions as have been imposed here. [emphasis added]
66 Bowen LJ, citing Sutton, also made the same point, remarking at 597 that:
When the matter comes before the judge at chambers it is for him to consider whether there is a real danger that the plaintiff may be unjustly and unnecessarily bringing the defendant into the jurisdiction of the English Courts, whether the application is made bona fide, and whether the action appears to be based upon any breach of the contract within the jurisdiction. In exercising his discretion what more natural and simple than that the judge should impose an undertaking upon the plaintiff that he will not abuse the process of the Court?
67 In my judgment, it was well within the discretion of the assistant registrar to extract the undertaking that she did from the respondents if she entertained any doubt that the relief sought by the respondents was not confined to the jurisdiction. However, this was unnecessary in the circumstances. Having regard to the proper construction that is to be placed upon the SOC as well as the express terms of the affidavits, there was simply no room for any concern that the respondents would abuse the court’s process by claiming damages or injunctive relief for injury suffered outside Singapore.
Conclusion on abuse of process
68 I fully accept the proposition that the jurisdiction of our courts should only be invoked to bring a foreign defendant here if the requirements of O 11 r 1 of the Rules have been met; in other words, where there is the requisite nexus between the claim pursued and this jurisdiction. The question on appeal was whether the respondents (as plaintiffs) had limited their claim to Singapore. In my judgment, they had done so. Whether one analyses, severally or cumulatively, the SOC, the affidavits filed in support of their application for leave to serve out and the undertaking proffered by Mr Singh, there is no doubt in my mind that the risk of the respondents abusing this court’s process is fanciful and therefore to be disregarded.
Manner of service
69 The second basis upon which the appellants challenge the jurisdiction of this court relates to the manner in which service was effected. The appellants contend that the jurisdiction of this court over a foreign defendant may be exercised only if service of the writ in the foreign jurisdiction has been effected in an appropriate manner: s 16(1)(a)(ii) of the SCJA and [20]–[21] above. The respondents had sought to effect service using a process server in Hong Kong who personally served Mr Restall and left a copy of the relevant documents at the registered address of the Review. The respondents submitted that this method of service was appropriate because all that O 11 r 4(2)(c) of the Rules requires is that service be effected “by a method authorised by the law of that country for service of any originating process issued by that country.” The methods of service employed by the respondents are consistent with those allowed under the relevant rules of Hong Kong: see O 10 read with O 65 of the Hong Kong Rules of High Court (Cap 4) and s 356 of the Companies Ordinance (Cap 32); and further, W S Clarke, Hong Kong Civil Court Practice (LexisNexis, Desk Edition, 2003) at 50–54 and 747–751.
70 The appellants, on the other hand, submitted that the respondents’ position was misconceived because the applicable provision under the Rules for purposes of this case was O 11 r 4(1) – and not O 11 r 4(2) – as there subsists a civil procedure convention between Singapore and Hong Kong by which the respondents were to abide. The appellants submitted that service that was not effected in accordance with O 11 r 4(1) was not proper service and ought to be set aside. The civil procedure convention in question is the Treaty ([5] supra) which was concluded between the People’s Republic of China (“PRC”) and Singapore on 28 April 1997 (ie, at a time when Hong Kong was still under British rule).
71 The respondents countered this in two ways. First, they produced a letter from the Ministry of Foreign Affairs dated 13 October 2006 (“the MFA letter”), which stated as follows:
2. The application of a treaty to Hong Kong is governed by Article 153 of the Hong Kong Basic law, which provides that such matters are to be decided by the Central People’s Government after seeking the views of the Government of the Hong Kong Special Administrative Region.
3. The Department of Justice of the Hong Kong Special Administrative Region has confirmed to us that the Treaty is not applicable.
This was later reiterated in a letter dated 8 November 2006 in which the Ministry of Foreign Affairs also stated that it regarded the confirmation by the Department of Justice of Hong Kong that the Treaty does not extend to Hong Kong as authoritative. Second, the respondents maintained that whether the Treaty extended to Hong Kong was a question of Hong Kong law and in support of their position they produced an expert opinion from a senior practitioner at the Hong Kong Bar, Mr Rimsky Yuen, SC. Mr Yuen’s opinion also addressed the question whether the manner of service employed on the respondents’ behalf was in accordance with the laws of Hong Kong.
72 In response, the appellants produced an expert opinion from Prof Gillian Doreen Triggs who opined that the question whether the Treaty extended to Hong Kong was one of public international law. In her opinion, the Treaty did so extend. The respondents then filed the expert opinion of Prof Alan Vaughan Lowe who reached the opposite conclusion to Prof Triggs as a matter of public international law.
73 I propose to analyse the submissions as to the applicability of the Treaty to Hong Kong in two stages. First, what is the effect of the MFA letter? How much weight is to be accorded to it? Is it merely relevant evidence, or is it, as Mr Singh proposed, decisive? Second, if the MFA letter does not dispose of the matter, have the respondents proved their position on a balance of probabilities?
Effect of the MFA letter
74 Article 29 of the 1969 Vienna Convention on the Law of Treaties (“the VCLT”), provides that unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. The question then is whether a different intention appears from the Treaty or has otherwise been established in this context. The MFA letter may be potentially relevant to the extent it sheds light on the intention of the signatories to the Treaty at the relevant time. If both Singapore and the PRC had intended that the Treaty would or would not apply to Hong Kong, that would certainly be relevant evidence. A second way in which the MFA letter might potentially be material is as evidence of subsequent state practice in the application of the treaty, which under art 31(3)(b) of the VCLT is to be taken into account in interpreting a treaty.
75 Mr Singh however went further than this and submitted that the MFA letter ought to be given conclusive and irrebuttable evidential weight because, it was said, the courts would not in matters of this nature depart from the views of the executive branch of government. He rested this submission on the principle of separation of powers. He cited four cases in support. The first of these was The Fagernes [1927] P 311, which concerned the question whether the waters in which a collision had taken place were within the territorial sovereignty of England. Lawrence LJ noted that there was no controlling treaty or convention or other executive act of the government expressly sanctioning or recognising any territorial rights over the area in question. However, the court requested the opinion of the Attorney-General. Upon being informed by him that the Secretary of State for the Home Affairs had answered the question in the negative, the court (with the exception of Bankes LJ who remained silent on the point) held that it should take judicial notice of the executive’s statement and treat it as conclusive. Atkin LJ observed (at 324):
What is the territory of the Crown is a matter of which the Court takes judicial notice. The Court has, therefore, to inform itself from the best material available; and on such a matter it may be its duty to obtain its information from the appropriate department of Government. Any definitive statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive. A conflict is not to be contemplated between the Courts and the Executive on such a matter, where foreign interests may be concerned, and where responsibility for protection and administration is of paramount importance to the Government of the country…
I think, however, that it is desirable to make it clear that this is not a decision on a point of law, and that no responsibility rests upon this Court save that of treating the statement of the Crown by its proper officer as conclusive.
76 Lawrence LJ made a similar observation, at 329–330:
[I]t is highly expedient, if not essential, that in a matter of this kind the Courts of the King should act in unison with the Government of the King…In view of [the] answer [by the Attorney-General], given with the authority of the Home Secretary upon a matter which is peculiarly within the cognizance of the Home Office, this Court could not, in my opinion, properly do otherwise than hold that the alleged tort was not committed within the jurisdiction of the High Court.
77 The next case Mr Singh relied on was Aksionairnoye Obschestvo AM Luther v Sagor and Co [1921] 3 KB 532 where the Russian Socialist Federal Soviet Republic had passed a decree in June 1918 declaring all mechanical sawmills to be of a certain capital value and all woodworking establishments belonging to private or limited companies to be the property of the Republic. Agents of the Republic seized the plaintiffs’ factory in 1919 and sold its stock to the defendants, who subsequently exported it to England. The plaintiffs commenced an action for a declaration that they were entitled to the wood. The question to be answered was whether from June 1918, the Republic was recognised by the United Kingdom as a sovereign state. If so, the plaintiffs would necessarily fail because it was not open to the courts of one country to question the acts of a government of another sovereign state. Before the English Court of Appeal, evidence was adduced in the form of two letters from the Foreign Office confirming that the United Kingdom did recognise the Soviet Government as the de facto Government of Russia. Bankes LJ appeared to assume the conclusiveness of these letters, holding at 543, that:
The Government of this country having…recognised the Soviet Government as the Government really in possession of the powers of sovereignty in Russia, the acts of that Government must be treated by the Courts of this country with all the respect due to the acts of a duly recognised foreign sovereign state.
78 Both Warrington LJ, at 548, and Scrutton LJ, at 556, relied on the decision of Lord Esher MR in Mighell v The Sultan of Johore [1894] 1 QB 149 at 158 that “once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the Court of this country is decisive”. As such, the letters from the Foreign Office were treated as conclusive as to the status of the Soviet Government.
79 The third case cited was a decision of the Court of Appeal in Civil Aeronautics Administration v Singapore Airlines Limited
22 A question such as that which arises in the present case, whether an entity is a State so as to enjoy sovereign immunity in Singapore, is eminently a matter within the exclusive province of the Executive to determine, as what are involved in the question are not only matters of fact but also matters of policy. The courts are not in the best position to decide such a question. This explains why Parliament had by s 18 in the Act conferred upon the Executive the power to make a conclusive determination whether a State is recognised for the purposes of the Act. In our adversarial system of administration of justice, evidence is adduced by the parties. But even as regards facts, there may be matters of fact which are not within the public domain but which may be known only to the Executive. Therefore, to allow such a question to be determined wholly on the basis of evidence adduced by the parties not only protracts a trial, it also leaves much to be desired as it could very well be that all pertinent facts and circumstances might not be before the court …
27 It is really not for the courts to get themselves involved in international relations. The courts are ill-equipped to deal with them. If the answer of the Executive to a query is not clear enough, the proper recourse would be for the court to seek further clarification and not to second-guess the Executive or to determine the answer independently based on evidence placed before it. This is the most expedient and sensible option, an option resorted to by Roche J in Aksionairnoye. See also Carl-Zeiss-Stiftung v Rayner and Keeler, Ltd (No 2) [1966] 2 All ER 536 at 546 per Lord Reid. The court should not, on its own, reach a conclusion which is inconsistent with the answer given by the Executive.
80 To put the case in its proper context, it is important to appreciate that the court did not hold that even within the limited field of state recognition, all such questions are to be conclusively answered by the executive. In fact, the court observed that the issue of jurisdictional immunity was “special”:
25 But, as mentioned before, the question of sovereign immunity is special and should be treated differently from the general question whether a State has come into being. It is incongruous to say that a State is required to accord sovereign immunity to another State when the latter is not recognised by the former. Bearing in mind the pre-eminence given to recognition by virtue of s 18 of the Act, the question of sovereign immunity clearly stands on a different footing from other questions in which the existence of a State comes into issue.
26 Even Starke’s International Law (11th Ed, 1994), which is relied upon by counsel for CAA in support of their argument, recognises that the question of state immunity is special. In discussing the UK State Immunity Act 1978, the author states (at 136):
However, a statement by the executive that a particular government is not treated as such does not preclude a British court from holding that such government is a sovereign government, or is in control of the territory concerned, especially in relation to questions not involving jurisdictional immunity.
[emphasis in original]
81 The fourth, and perhaps most interesting, case was a recent decision of the English Court of Appeal. R (on an application of Gentle and another) v Prime Minister [2006] All ER (D) 147 (Dec) (“Gentle”), is one among a number of suits filed in relation to the ongoing war in Iraq led by the United States and the United Kingdom. The plaintiffs in the case were mothers of soldiers who had lost their lives serving in Iraq and who sought an independent inquiry into the circumstances leading to the invasion of Iraq and whether the government had taken reasonable steps to be satisfied that the invasion of Iraq was lawful. This, the mothers urged, was the government’s obligation by virtue of Art 2 of the European Convention on Human Rights (“the ECHR”) which imposes on member states substantive and procedural obligations not to take life without justification and to establish a framework of laws, precautions, procedures and means of enforcement which would, to the greatest extent reasonably practicable, protect life. The government opposed this and contended, among other things, that the decision to deploy armed forces in a foreign conflict was not justiciable and nothing in the ECHR made it so.
82 Sir Anthony Clarke MR, writing for the court, commenced his analysis by examining the position apart from the ECHR. He observed, at [26]:
Absent the Convention, the starting point is the proposition that issues relating to the conduct of international relations and military operations outside the United Kingdom are not justiciable. That proposition is supported by two further propositions. The first is that constitutionally such matters lie within the exclusive prerogative of the executive and the second is that they are governed by international and not domestic law.
83 Explaining the first of these propositions, Sir Anthony Clarke MR cited R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 (“Abbasi”), which in turn referred to the landmark decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (“the GCHQ case”), which involved an executive decision to forbid employees of the Government Communications Headquarters from being members in a trade union on the grounds of national security. In the GCHQ case, Lord Scarman held at 407 that “the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.” Elaborating on the categories of prerogative decision which are unjusticiable, Lord Diplock, at 409–410, observed:
Nevertheless, whatever label may be attached to them there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive government retains decision-making powers that are not dependent upon any statutory authority but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decision-maker to make them were statutory in origin. From matters so relatively minor as the grant of pardons to condemned criminals, of honours to the good and great, of corporate personality to deserving bodies of persons, and of bounty from moneys made available to the executive government by Parliament, they extend to matters so vital to the survival and welfare of the nation as the conduct of relations with foreign states and – what lies at the heart of the present case – the defence of the realm against potential enemies.
84 Explaining why certain decisions should not be reviewed by the courts, Lord Diplock went on to say, at 411:
Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another – a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.
85 Lord Fraser in the GCHQ case also observed that many of the most important prerogative powers were concerned with the control of armed forces and with foreign policy.
86 Sir Anthony Clarke MR then illustrated the second of the propositions by reference to R (CND) v Prime Minister
36. Should the court declare the meaning of an international instrument operating purely on the plane of international law? In my judgment the answer is plainly no. All of the cases relied upon by the applicants in which the court has pronounced upon some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law...[T]he domestic courts are the surety for the lawful exercise of public power only with regard to domestic law; they are not charged with policing the United Kingdom's conduct on the international plane. That is for the International Court of Justice. Mr Singh was quite unable to point to any case in which the domestic courts have ruled on a matter of international law in no way bearing on to the application of domestic law.
37. What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing...for our courts to consider the application of an international treaty by reference to the facts of an individual case...It is quite another thing to pronounce generally upon a treaty’s true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authoritative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?
87 Rationalising the decision not to pronounce on the meaning of Resolution 1441, Maurice Kay LJ remarked at [50]:
It is clear from [the GCHQ case] that the controlling factor in considering whether a particular exercise or, for present purposes, prospective exercise of prerogative power is susceptible to judicial review is “not its source but its subject matter” (Lord Scarman, at p 407). It is also clear from that milestone authority that there are subject matters which are, in the language of Lord Phillips of Worth Matravers MR in Abbasi, “forbidden areas” (para 106(iii)). The first reason why the present application must fail is that its subject-matter is one of those forbidden areas. In my judgment this is not because of an exercise of judicial discretion. It is a matter of principle. If it were purely a matter of discretion there would be circumstances in which the discretion could only be exercised after full consideration of the substantive case. It is because it is a matter of principle that I feel able to dismiss the present application on a preliminary issue without full consideration of the substantive case...I readily accept that the ambit of the “forbidden areas” is not immutable and that cases such as [R v Foreign Secretary, ex parte Everett [1989] 1 QB 811] and Bentley [2001] 1 Cr App 307 CA illustrate how the areas identified by Lord Roskill in the [GCHQ] case have been reduced. However, the authorities provide no hint of retreat in relation to the subject- matter of the present case. This is hardly surprising. Foreign policy and the deployment of the armed forces remain non-justiciable. That is the first basis upon which I would refuse the present application. …
88 Richards J also took a similar approach. He gave two reasons for his conclusion. First, he said (at [59]):
[I]t is frequently important for the successful conduct of international affairs that matters should not be reduced to simple black and white, but should be left as shades of grey and open for diplomatic negotiation; and in relation specifically to Resolution 1441 it would be detrimental to the conduct of this country’s international relations for the Government to go further than its considered position. In the face of that evidence, it seems to me clear that the legal issue cannot in practice be divorced from the conduct of international relations and that by entertaining the present claim and ruling on the interpretation of Resolution 1441 the court would be interfering with, indeed damaging, the Government's conduct of international relations.
89 Secondly, he found that the true purpose of seeking a definitive interpretation on Resolution 1441 was to tie the Government's hands in future military action (at [59]):
A plain purpose of the present claim is to discourage or inhibit the Government from using armed force against Iraq without a further Security Council resolution. Thus the claim is an attempt to limit the Government’s freedom of movement in relation to the actual use of military force as well as in relation to the exercise of diplomatic pressure in advance. That takes it squarely into the fields of foreign affairs and defence. In my view it is unthinkable that the national courts would entertain a challenge to a Government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision.
90 Returning to the decision in Gentle, having decided that the claim was not justiciable as a matter of common law, Sir Anthony Clarke MR then went on to construe whether Art 2 of the ECHR made the plaintiffs’ claim justiciable. He held that it did not because an inquiry as to whether the Government had taken reasonable care to ensure that its armed forces would not be sent on an operation which was unlawful under international law would invariably implicate the question of whether the decision to send troops to Iraq was lawful. Yet, as even counsel for plaintiffs accepted, it is universally accepted that absent bad faith, it was inappropriate for the court to judicially review such a decision.
91 Before I distill the principles that arise from these cases, it is useful to refer to a couple more cases that were not cited to me but which are helpful in clarifying to some extent where the boundaries of unreviewable executive prerogative lie. The first is R v Foreign Secretary of State for Foreign and Commonwealth Affairs ex p Everett [1989] 1 QB 811 (“Everett”), which followed close on the heels of the GCHQ case ([83] supra) and concerned the question whether an executive decision to issue a passport was subject to judicial review. Rationalising the decision in the GCHQ case, Taylor LJ, at 820, observed:
The majority of their Lordships indicated that whether judicial review of the exercise of a prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the Prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving parliament, mobilising the armed forces. Clearly those matters and no doubt a number of others are not justiciable but the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision affecting the right of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases.
92 Everett was cited by the English Court of Appeal in Abbasi ([83] supra), which dealt with whether it was proper to compel the Foreign Office to make representations on behalf of a citizen alleged to have been arbitrarily detained by the United States or to take other appropriate action or failing that, to give an explanation as to why this has not been done. The court held that this was unjusticiable and said, at [85]:
Those extracts [from the GCHQ case] indicate that the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case. That is illustrated by the subsequent case of R v Foreign Secretary ex p. Everett [1989] 1QB 811. This court held, following the GCHQ case, that a decision taken under the prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of that particular case. Lord Justice Taylor, at p.820, summarised the effect of the GCHQ case as making clear that the powers of the court “cannot be ousted merely by invoking the word ‘prerogative’”...
93 Lord Phillips MR continued thus at [107]:
On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.
94 Finally, in R (Marchiori) v The Environment Agency
38. Taking all these materials together, it seems to me, first, to be plain that the law of England will not contemplate what may be called a merits review of any honest decision of government upon matters of national defence policy. Without going into other cases which a full discussion might require, I consider that there is more than one reason for this. The first, and most obvious, is that the court is unequipped to judge such merits or demerits. The second touches more closely the relationship between the elected and unelected arms of government. The graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome. The defence of the realm, which is the Crown’s first duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of everyone; and everyone will look to the government they have elected for wise and effective decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that the unelected judiciary play any role in such questions, remotely comparable to that of government. The position is not unlike that taken by their Lordships’ House in relation to attempts to challenge government decisions of what is sometimes called “macro-economic” policy: see for example Ex p. Nottinghamshire CC [1986] AC 240 and Ex p. Hammersmith and Fulham LBC [1991] 1 AC 521; and this approach is, I conceive, consistent with recent observations in the House of Lords in cases such as Kebilene [2000] 2 AC 326 and R v A [2001] 2 WLR 1546 as to the deference owed by the court to the democratic decision-maker.
39. I recognize that the notion of so grave a matter of State lacks sharp edges. But it is now a commonplace that the intensity of judicial review depends upon the context (see for example Daly [2001] 2 WLR 1622 per Lord Steyn at paragraph 28). One context will shade into another; there is for instance a distinction between a deportation decision affecting a specific individual (as in Rehman [2001] 3 WLR 877) and a decision of defence policy (such as Trident), though both involve matters of national security.
40. Secondly, however, this primacy which the common law accords to elected government in matters of defence is by no means the whole story. Democracy itself requires that all public power be lawfully conferred and exercised, and of this the courts are the surety. No matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds. There is no conflict between this and the fact that upon questions of national defence, the courts will recognise that they are in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness. Judicial review remains available to cure the theoretical possibility of actual bad faith on the part of ministers making decisions of high policy.
95 It is appropriate now to take stock of the general principles that may be distilled from the foregoing discussion. In my judgment, the issue is much more textured than it at first appears. The first point to be made is that there are clearly provinces of executive decision-making that are, and should be, immune from judicial review. This comes as no surprise and is merely a reflection of the constitutional doctrine of the separation of powers. The doctrine of the separation of powers, as seen from the dicta cited above, undoubtedly informs the constitutional structure of the Westminster model of governance, on which our own constitutional framework is based.
96 Second, within the span of executive decisions that are immune from judicial review are those involving matters of “high policy”. This includes such matters as dissolving parliament, the conduct of foreign affairs, the making of treaties, matters pertaining to war, the deployment of the armed forces and issues pertaining to national defence. These are what the American courts call “political questions” and the reasons underlying the deference accorded to the executive branch of government in such areas have been articulated in the cases I have referred to. In my judgment, cases concerning international boundary disputes or the recognition of foreign governments comfortably fall within this class of cases.
97 Third, apart from issues of foreign affairs or national defence, there are other areas that the court will no doubt find unjusticiable. These include cases concerning the interpretation of international treaties operating solely on the international plane; or where the legislature has made it clear that the question is reserved to the executive to answer, such as in the Singapore Airlines case, where s 18 of the State Immunity Act specifically requires a certification from the government that the country in question is recognised for the purposes of exempting them from lawsuits in Singapore.
98 Fourth, even if prima facie, a case comes within what appears to be a non-justiciable area, the courts may intervene if on closer scrutiny it becomes clear that it does not. Thus, where what appears to raise a question of international law in fact bears on the application of domestic law, that is something the courts may well find justiciable. There may also be situations where the courts are able to isolate a pure question of law from what may generally appear be a non-justiciable area (see for example Humane Society International Inc v Kyodo Senpaku Kaisha Ltd
(a) Justiciability depends, not on the source of the decision-making power, but on the subject matter that is in question. Where it is the executive that has access to the best material available to resolve the issue, its views should be regarded as highly persuasive, if not decisive.
(b) Where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to material, the courts should shy away from reviewing its merits.
(c) Where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain.
(d) In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches; even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of and in this regard it is to the electorate and not the Judiciary that the Executive and Legislature are ultimately accountable.
99 With these principles in mind, I turn to the question posed: whether the view given in the MFA letter as to the applicability of the Treaty to Hong Kong should be treated as binding on this court. It is useful here to take a moment to properly characterise the nature of the question in issue. The essence of what has to be determined in these appeals is not whether the making of the Treaty was advisable, or whether Singapore recognised Hong Kong as part of the PRC or even whether the Singapore Government did in fact sign a treaty with Hong Kong. What falls to be determined is whether the Treaty applies to Hong Kong; and the answer to that critical question depends, first and foremost, upon an interpretation of that Treaty, a number of other international instruments and, as the MFA letter itself points out, Art 153 of Hong Kong’s Basic Law. In other words, we are here concerned with the interpretation of a treaty and a foreign statute in the light of some international instruments.
100 This description of what is at stake in these appeals removes us from almost all the cases cited by Mr Singh. Those cases concerned the recognition of foreign governments, boundary disputes, sovereign immunity and the deployment of troops overseas – all involving exercises of sovereign or legislative prerogative in matters of “high policy”. The issue that concerns the present appeals, on the other hand, does not implicate the exercise of executive prerogative at all. The concern here is not with the making of the Treaty, but with its effect. To put it another way, the MFA letter does not represent an exercise of prerogative powers; it is essentially a statement of the MFA’s opinion as to what the effect of the Treaty is.
101 The closest of the foregoing principles relevant to the present appeals is the holding of Simon Brown LJ in CND ([86] supra) that the courts should not expound on the meaning of an international document operating purely on the international plane. But, as I read that case, the true concerns there were that the judiciary should not be involved in policing the government’s conduct of its international affairs and that it would be arrogant to assume that it should interpret a treaty that affects the international community, particularly given that there is the International Court of Justice to do so. Moreover, CND involved considerations of foreign policy.
102 The present appeals are different. They do not engage any sort of foreign policy considerations. Indeed, the respondents’ position would be contradictory if they asserted otherwise since, in explaining why any extension of the Treaty to Hong Kong would have been accompanied by formal consultations and procedures, they argue that the Treaty does not fall within the “foreign policy” exception to Art 153 of the Basic Law (see, below, at [117]–[118]). Neither does this case involve the policing of the government’s conduct of international affairs. Quite the opposite: we are concerned only with the procedures to be adopted when private litigants wish to serve the process of this court on defendants resident in Hong Kong.
103 Furthermore, to the extent that this court is required to construe a bilateral treaty in the light of international law principles and certain international instruments, it is only to determine the domestic legal obligations applicable to litigants seeking to invoke this court’s jurisdiction pursuant to the Rules and the SCJA. As was noted in Pacific Assets ([18] supra at [14]), citing Hong Kong Housing Authority v Hsin Yieh Architects & Associates Ltd
104 Accordingly, in my judgment the MFA letter, though potentially of assistance to this court, is not decisive of the matter.
Whether the Treaty applies to Hong Kong
105 I now turn to the core question that persists: is the Treaty applicable to Hong Kong? Three sets of expert reports were submitted: two for the respondents and one for the appellants. It is trite that where there is conflicting expert testimony, it is well within the court’s powers to choose which position, if any, to adopt having regard to what best accords with logic and commonsense: see Tengku Jonaris Badlishah v PP
106 The appellants submitted the report of Prof Triggs which may be summarised as follows. First, she maintained that as a matter of international law, there is a rebuttable presumption that a treaty applies to the full extent of a signatory’s territory unless there is evidence of an express or implied intention to the contrary. In the present case, since the Treaty came into force after the handover of Hong Kong to the PRC (notwithstanding that it was signed before the handover), the presumption must be that the Treaty would apply to Hong Kong. Further, given the absence of any indication in the Treaty that it would not be extended to Hong Kong, the presumption is not rebutted. Prof Triggs conceded that Hong Kong’s Basic Law and a 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (“the Joint Declaration”) do suggest that any extension of any treaty entered into by the PRC would not automatically apply to Hong Kong, save for defence and foreign policy matters. However, she maintained that the applicability of the Treaty is a matter of foreign policy and hence is exempted from the formalities required to extend a treaty signed by the PRC to Hong Kong.
107 The respondents submitted reports by Prof Lowe and Mr Yuen. These tended to the opposite view. Taken together, their argument is that at the most fundamental level, the presumption that Prof Triggs relies on does not operate here because the Treaty was concluded before the handover, and that it is the time when a treaty is signed that is critical. They also contend that in any case there is evidence that shows that the Treaty should not apply to Hong Kong in the absence of certain requisite formalities. This, they suggest, is clear from the Joint Declaration, Hong Kong’s Basic Law, as well as two notes issued by the governments of Hong Kong and the United Kingdom on 20 June 1997 (“the Chinese Note” and “the UK Note” respectively). No such formalities have been taken in respect of the Treaty, and this is confirmed by Hong Kong’s Department of Justice and several leading texts. In addition, Mr Yuen also drew on his experience as a practitioner in Hong Kong including his experience in cases concerning the conflict of laws. He stated that there had been no change at all in the practice relating to service of originating process issued in Singapore after the handover of Hong Kong to the PRC in 1997. This is and has been commonly effected through a firm of solicitors in Hong Kong engaged as agents for this purpose. Mr Yuen further noted that no steps had been taken to enact the Treaty into the domestic law of Hong Kong.
108 I take the last point first. Prof Triggs did not challenge Mr Yuen’s evidence as to the practice that in fact prevails in Hong Kong. Her primary response to this was that the internal laws and practice of Hong Kong are irrelevant in deciding whether the Treaty extends to Hong Kong because a state may not raise its own internal laws as a defence to a breach of a treaty obligation.
109 With respect, Prof Triggs seems to me to have missed the point. The conduct of the state parties is relevant to interpreting a treaty and the unrebutted evidence of Mr Yuen was consistent with the Treaty being construed as not extending to Hong Kong. If the position that prevails in Hong Kong is as set out in Mr Yuen’s opinion, then it would follow either that:
(a) the PRC was in breach of its obligations under the Treaty in failing to take steps to ensure that the domestic laws and practices prevailing in Hong Kong accorded with the Treaty; or that
(b) neither the PRC nor Hong Kong regarded the Treaty as extending to Hong Kong.
110 It was apparent from the evidence before me that neither Hong Kong nor Singapore regarded the Treaty as extending to Hong Kong. I have referred to the MFA letter. In addition, in a letter to the Singapore Consul General in Hong Kong, the Hong Kong Department of Justice confirmed its position that the Treaty did not extend to Hong Kong. Although the PRC’s position was not expressly articulated, its stance in not taking steps to ensure that the laws and practices in Hong Kong accorded with the Treaty would have to be seen as being consistent either with the same understanding as that of Singapore and Hong Kong or with it having a contrary understanding but then acting in breach of that understanding. The former is self-evidently the more probable conclusion in the circumstances. This was never addressed by Prof Triggs and it is an important weakness in her argument. Further, as Mr Singh submitted, Prof Triggs was in effect inviting this court to give greater weight to her views than those of the governments of Singapore and Hong Kong. In my judgment, this was simply untenable.
111 I now turn to the other issues. There is common ground between the experts that a treaty signed by a country is presumed to extend to the whole of its territory unless a contrary intention is expressed in the treaty or is otherwise established. It was also agreed that there is no express stipulation within the Treaty as to whether it is to be limited in its application so as to exclude Hong Kong. The key difference between the parties lay in whether the presumption that the Treaty will apply to Hong Kong comes into operation in the first place; and whether it may be inferred that the parties to the Treaty intended to limit the applicability of the Treaty so as to exclude Hong Kong in the light of other treaties and instruments entered into by the PRC concerning the general applicability to Hong Kong of treaties entered into by the PRC. The point to note here is that the Treaty was signed before the handover of Hong Kong to the PRC but came into effect after.
112 The first issue (whether the presumption applies to extend the Treaty to Hong Kong) may be answered briefly. I accept as the more logical view, Prof Lowe’s opinion that it is the time at which the parties sign and conclude a treaty that is critical in the assessment of the parties’ intentions. The main reason for this is that it simply does not accord with the fundamental need for there to be certainty in respect of a state’s legal obligations if those obligations were to remain in suspense from the time the treaty had been signed to the time that it comes into force. As Prof Triggs herself recognises, the length of time between the signing of a treaty and its entry into force or its ratification by individual countries may often be quite long. It is therefore sensible to regard the intentions of the signatories as fixed at the time of signature. In Prof Triggs’ view, however, these complexities do not arise in respect of the Treaty because this was a bilateral treaty. This cannot be correct.
113 The length of time between the signing of the Treaty (28 April 1997) and its coming into force (27 June 1999) was just over two years. Singapore completed the applicable formalities for bringing the Treaty into force on 29 April 1998. The PRC on its part only completed the applicable procedures just over a year later on 28 May 1999 and the Treaty then came into force 30 days after that. In my judgment, this is a compelling argument for construing the Treaty by reference to the date at which the Treaty was signed so that there is certainty as to precisely what obligations each side had agreed to be subject to. The coming into force of a treaty may depend upon a number of events, some of which may fall to be carried out by the counterparties. If it were to transpire (as it did in this case) that the actions of each party towards bringing a treaty into force take place on different dates, it would leave open the prospect that one state party had done all that was required of it while the other state party only did so after there had been a change of circumstance that might affect the operation of that treaty. I find it improbable that state parties would leave themselves open to the possibility that they had committed to a set of bilateral obligations only to find those varied in some way by the unilateral act of the other party. Contrary to Prof Triggs’ assertion, this conclusion does not in my view detract from the principle set out in Art 28 of the VCLT that a treaty provision does not bind a party until it comes into force. When a party is bound and by what a party is bound (as evidenced by the intentions of the party) are two different issues that are to be considered separately.
114 If, as I have found, it is the time at which a treaty is signed that is critical in the present case, this was before the handover of Hong Kong to the PRC. It then stands to reason that the Treaty would not apply to Hong Kong, notwithstanding the general presumption in Art 29 of the VCLT. This was the starting point of Prof Lowe’s opinion which I found cogent.
115 However, even if I were wrong in this conclusion, I am persuaded that there is sufficient evidence of an intention not to extend the Treaty to Hong Kong. The starting point is of course Hong Kong’s own Basic Law, which by Art 153, states expressly that international agreements or treaties to which the PRC is or becomes a party will only be extended to Hong Kong if it is so decided by the Central People’s Government after taking into account the circumstances and the needs of Hong Kong and after seeking the views of the government of Hong Kong. To similar effect is Section XI to the Annex of the Joint Declaration. In addition, para (3) of the Joint Declaration makes it known that the default position is that:
The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.
116 Further, the Chinese and UK governments issued Notes on 20 June 1997 listing the treaties that would be applicable to Hong Kong. Apart from excluding the Treaty from those listed, the Chinese Note went on to say:
With respect to any other treaty not listed in the Annexes to this Note, to which the People’s Republic of China is or will become a party, in the event that it is decided to apply such treaty to the Hong Kong Special Administrative Region, the Government of the People’s Republic of China will carry out separately the formalities for such application. For the avoidance of doubt, no separate formalities will need to be carried out by the Government of the People’s Republic of China with respect to treaties which fall within the category of foreign affairs or defence or which, owing to their nature and provisions, must apply to the entire territory of a State.
117 Such language is unequivocal. It means that in the absence of formalities undertaken to extend a treaty to Hong Kong, such a treaty will simply not apply. There was no real dispute before me that no formalities had been taken to extend the Treaty to Hong Kong and this seems to point irresistibly to the conclusion that the Treaty does not extend to Hong Kong. The only exception contemplated in these constitutional documents is if the Treaty was to be regarded as involving foreign affairs or defence matters, in which case it would extend to Hong Kong without the need for any consultations or formalities.
118 As to this, I do not accept Prof Triggs’ contention that the Treaty involves matters touching on the conduct of foreign affairs. There was no evidence of relevant state practice to support such an assertion. Further, this is a civil procedure convention between two countries and more specifically, an agreement between two countries to render mutual judicial assistance. This has no more to do with foreign affairs than any other treaty which by definition is an agreement between state parties and to that extent touches on each state’s foreign affairs. But the Chinese Note clearly refers to a specific class of treaties within the category of foreign affairs or defence. It follows that not every treaty would fall within this classification. Rather, it would depend on the subject matter of the treaty in question. In that light, it is difficult to see how or on what basis it could be said that the Treaty being one for mutual judicial assistance falls into this category. Furthermore, it is contemplated in these documents that Hong Kong is to operate its own autonomous judicial system, and consistent with this, Art 96 of the Basic Law contemplates that the government of Hong Kong is at liberty with the assistance or authorisation of the PRC to enter into appropriate arrangements with foreign states for reciprocal juridical assistance. Significantly, in 2003 there came into being “The Agreement Between the Hong Kong SAR and the Government of Singapore Concerning Mutual Legal Assistance in Criminal Matters”. All this clearly suggests that any agreement between Singapore and the PRC relating to the mutual judicial assistance would not automatically extend to Hong Kong without the requisite formalities being undertaken.
119 Prof Triggs offers a two-fold response to this. First, she makes the argument that it is inconceivable that Singapore and the PRC would sign the Treaty two months before Hong Kong’s reunification with the PRC without intending it to apply to Hong Kong. In my view, this begs rather than answers the question. It may equally be argued that the decision to sign the Treaty before the handover rather than to wait until after strongly suggests that the parties did not see the need for the Treaty to apply to Hong Kong. Furthermore, there are perfectly sensible reasons why Prof Triggs’ surmises may not be correct. The fact is that Hong Kong has a legal system similar to ours and there is nothing to suggest that there has been any difficulty with effecting service as between Singapore and Hong Kong without having recourse to a judicial assistance treaty or a civil procedure convention. In any event, as noted by Prof Lowe, the question of the PRC’s intention on this point, in entering into the Treaty, could not be determined without reference to such instruments as the Joint Declaration and the Chinese Note and I have already touched on these.
120 Prof Triggs’ second response is that it is illegitimate for a country to employ its own internal laws as a defence to a breach of its international obligations but I have dealt with this above and see no reason to add to what I have already said on this.
121 Before closing, I consider two practical implications of any decision I make in this respect. The first, which the appellants put forward, was that the effect of the Treaty would be significantly undermined if this court were to hold in effect that there are lacunae or pockets of immunity beyond the reach of the Treaty, because defendants could then simply cross from the PRC into Hong Kong. In my judgment, this is not persuasive. First, it is not within the purview of this court to assess the desirability of or the wisdom behind the treaties entered into by the government. The task for this court is simply to construe the effect of what has been entered into. If the conclusion is that the Treaty does not apply to Hong Kong, and if this results in a situation that is considered unsatisfactory, the solution lies in the executive exploring whether it is desirable to sign a similar treaty with Hong Kong. However, as I have noted above, there is nothing to suggest that such concerns are real. Moreover, if the effect of this decision is to hold that service of Singapore process can be effected in Hong Kong through a private agent, this further diminishes any such concern since there would in reality be no lacunae or pocket of immunity and nothing at all to be gained by individuals crossing into Hong Kong.
122 The second practical implication stems from adopting the appellants’ position and it is troubling indeed. It is relevant to note that whereas the respondents produced evidence showing that the common position of the governments of Singapore and of Hong Kong was that the Treaty did not extend to Hong Kong, the appellants maintained that the Treaty did, and that service should therefore be effected though the method prescribed in the Treaty. However, the respondents did not adduce any evidence as to the position of the PRC confirming that service could and would be effected in accordance with the Treaty if a request were made thereunder. This gives rise to a difficulty. If this court held that the Treaty did apply to Hong Kong, it would mean, according to the appellants, that the respondents would have to renew their efforts to serve their writs – this time through the official channels prescribed by the Treaty. What then, if the authorities in the PRC took the view that such a manner of service was not required or contemplated in relation to Hong Kong and therefore refused to serve the writs as requested? After all, this judgment does not bind the PRC. The respondents would be caught in a black hole as far as these proceedings are concerned and that cannot be right.
Conclusion on manner of service
123 In the final analysis, all that I am required to do is to decide whether, on a balance of probabilities, the respondents are correct in claiming that they only have to abide by O 11 r 4(2) of the Rules, and that having done so, service of process in the present proceedings has been properly effected. I emphasise this to highlight that in deciding cases of this kind, the courts are not deciding on the PRC’s or Hong Kong’s behalf what laws are in fact in operation there. As one commentator has noted, given the very many sensitivities involved, the courts are wary of making such findings and do well to take the conservative path of resolving these issues on the narrow ground as to which party has been able to discharge its burden of proof (see, Paul Tan, “Serving Writs Out of Jurisdiction on Defendants in Malaysia: Pacific Assets Management Ltd v Chen Lip Keong”, Singapore Law Gazette (October 2006) at 18). Our courts are only concerned with what laws are likely to be in operation there for the purposes of determining whether Singapore writs have been served out of the jurisdiction in compliance with the requirements of s 16 of the SCJA read with O 11 r 4 of the Rules and hence whether our courts are properly seized of jurisdiction.
124 In the present case, I am persuaded by the logic of both Prof Lowe’s and Mr Yuen’s evidence and hold on a balance of probabilities that the Treaty does not extend to Hong Kong for the reasons set out in this judgment. The views of the MFA and the Hong Kong Department of Justice also weigh strongly in favour of the respondents’ position. The position of the PRC was not expressly articulated but its stance, in my judgment, is far more consistent with the position of Singapore and Hong Kong rather than with that urged upon me by the appellants. As against this, Prof Triggs’ report is not only counter-intuitive as explained above, it lacks foundation in some important respects. For instance, while Prof Triggs states that it is critical to get the views of the PRC, she has not herself obtained such views. She made her initial findings without having had sight of the Chinese and UK Notes, despite those being available on the internet. She failed to consider the Joint Declaration in her first report even though this had already been raised and discussed in Mr Yuen’s report. While the appellants do not bear the legal burden of proving that the writs were served in the wrong manner, they do have the evidential burden to rebut the case submitted by the respondents. This, they failed to meet. In the light of the foregoing discussion, I am satisfied that the respondents have discharged their burden of proving that the service of process was proper and ought not to be set aside.
Conclusion
125 The central question raised in these appeals is whether the respondents have complied with the rules and procedures necessary to invoke this court’s jurisdiction. In the main, this turned on two questions: whether their claims, as required by the sub-rules of O 11 r 1 of the Rules, are limited to damages and injunctive relief within Singapore; and whether the manner of service employed, was appropriate in the circumstances. The burden of proof on both these issues lay with the respondents. In my judgment, they have discharged that and I answer the two questions in the affirmative. I therefore dismiss the appeals. As I indicated to both parties at the hearing of these appeals, I will hear them on costs and any other ancillary matters.
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Version No 0: 21 Feb 2007 (00:00 hrs)