1 The parties to this defamation suit are advocates and solicitors.

2 The defendant had incorporated a law practice, Fervent Chambers LLC and invited the claimant to join him in the practice. In time, the defendant on his own accord, relinquished his directorship and shareholding of the practice to the claimant. Subsequently, the defendant became involved in run-ins with regulatory authorities, leading to the claimant terminating the defendant from the practice.

3 Thereafter the defendant published defamatory posts on Facebook which the claimant says referred to him. The claimant commenced the present action against the defendant in respect of a total of 13 defamatory publications (“the Pleaded Publications”) published in December 2023 across five Facebook accounts (“the Pleaded Accounts”). ¹ The Pleaded Accounts were de-activated as of 2 May 2024. ² The claimant says that whilst there were numerous other instances of defamatory publications by the defendant on Facebook, he is not making claims in respect of those publications. The defendant denies that the Pleaded Publications were published by him; and that there was publication in Singapore to a substantial number of readers. The defendant elected not to give evidence at the trial of the action before me. Instead, he relied solely on the evidence of his expert witness who testified at the trial.

4 For the reasons below, I am allowing the claim in respect of the Pleaded Publications.

5 It should be noted at the outset that the defendant does not dispute that the Pleaded Publications referred to the claimant and that they were defamatory of him. The defendant also has not raised any of the defences of justification, fair comment or qualified privilege. As alluded to above, the defendant however disputes that the Pleaded Publications were published by him; and that there was publication in Singapore to a substantial number of readers. Therefore, the issues to be determined by me in the present case are as follows:

(i) What would be the appropriate quantum of damages.

(ii) Whether a final prohibitory injunction should be ordered against the defendant.

6 I turn first to examine the nature of the Pleaded Publications. The five Pleaded Accounts containing the Pleaded Publications have eclectic profile names. For ease of reference, I have directed the claimant to set out the Pleaded Publications in a table form. They are set out in the following table, arranged in chronology order of publication, with the profile names of the Pleaded Accounts, the defamatory words of the Pleaded Publications, and their meanings as pleaded by the claimant: ³

7 As noted above, the defendant does not dispute the elements of reference and defamatory meanings in respect of the Pleaded Publications. In any event, a perusal of the words contained in the Pleaded Publications shows that it is unarguable the Pleaded Publications referred to the claimant. I also accept that the meanings as set out in the table are capable of being the natural and ordinary of the words contained in the Pleaded Publications, and that they are defamatory of the claimant. For completeness, I note as alluded to above, the defendant has not raised any defence of justification, fair comment or qualified privilege.

8 I therefore find that the Pleaded Publications referred to the claimant, and they are defamatory of him. I also find that there are no defences available to the defendant.

9 The defendant’s case however is that the claimant does not have a prima facie case of defamation if he is unable to prove the element of publication. As such, although the defendant did not testify as a witness during the trial, there would be no need for the court to draw an adverse inference from his absence because the claimant has not even made out a prima facie case of defamation. ⁴

10 In this respect, the defendant relies heavily on the High Court decision of Qingdao Bohai Construction Group Co, Ltd v Goh Teck Beng [2016] 4 SLR 979 (“Qingdao Bohai”). The defendant’s proposition is that by the decision of Qingdao Bohai, it is important to have a computer forensic expert to investigate and analyse electronic evidence that would show the following:

(a) The Internet user who posted the offending Internet material. This is the first component of publication. This involves a range of electronic evidence as analysed by the defendant’s expert: see Qingdao Bohai at [75].

(b) An inference of publication in Singapore to a substantial number of readers. This is the second component of publication. This involves electronic evidence on the number of viewers of the Facebook posts and whether these viewers were based in Singapore: see Qingdao Bohai at [67(a)] and [137]. ⁵

11 In this regard, the defendant notes that in the present case, the claimant failed to provide any activity log of the defendant’s Internet protocol (“IP”) address showing a sequence of activities using the Facebook accounts that contained the Pleaded Publications. The claimant has also elected not to call an expert witness to investigate and analyse the electronic evidence that is critical for proving publication. ⁶

12 The defendant contends that in contrast, he had called an expert witness, Mr Chang James Tan Swee Long (“Mr Chang”) ⁷ who opined as follows: ⁸

13 As seen, the defendant’s expert is of the view that he is unable to verify whether the Pleaded Publications were published on the Internet in the first place. He says that there is a lack of electronic evidence to show that the defendant published them.

14 The defendant further contends that that anyone can register and sign up for a Facebook account and impersonate the defendant, highlighting the importance of electronic evidence to show that the defendant was the author of the Facebook posts. Thus, the claimant’s reliance on screenshots is inadequate to discharge the burden of proof. As opined by the defendant’s expert, screenshots can be edited without any visual sign of modification. ⁹ The defendant’s case is therefore that the claimant has not shown that the defendant published the Pleaded Posts.

15 It would be apposite to first set out in full the key passages in Qingdao Bohai that are relevant to the present case. The High Court stated as follows at [35]-[36]:

16 As seen, it was held by the High Court that in order to prove that the defendant published the offending material, the plaintiff must establish that the defendant has, by any act, conveyed or communicated the material to at least one other person who has received it. It is also necessary for the publication to have occurred within Singapore. Publication comprises the following two components referred to by the High Court:

17 In respect of the first component of publication, to satisfy its requirements in the context of Internet defamation, the plaintiff must establish, on the balance of probabilities, that the defendant as the Internet user had uploaded or posted the material on the Internet. By so uploading or posting the material on the Internet, the defendant would have made the offending material available to a third party under the first component.

18 As seen, the High Court however made it clear that this does not mean that electronic evidence is the only means by which the responsibility of a defendant for material appearing on the Internet can be established. The High Court makes the point explicitly at [74] as follows:

19 It is seen that whilst the use of electronic evidence to link a defendant to any particular material appearing on the Internet would be the most obvious way, the High Court held that the use of electronic evidence is not the only means by which the responsibility of a defendant for material appearing on the Internet can be established. Cogent evidence which is not electronic in nature can be adduced to meet the requisite standard of proof. This contrasts with the defendant’s suggestion that the claimant must produce the activity log of the defendant’s IP address showing a sequence of activities using the alleged Facebook accounts that contained the alleged defamatory Facebook posts in order to prove publication by the defendant. It also answers the defendant’s complaint that the claimant failed to call an expert witness to investigate and analyse the electronic evidence to prove publication. ¹⁰ Contrary to the defendant’s contention, direct evidence of publication in the form of a computer forensic expert to investigate and analyse electronic evidence is not the only avenue of proving publication on the Internet. Plainly, electronic evidence is not the only means by which the responsibility of a defendant for material appearing on the Internet can be established. Neither is expert evidence the only way to prove publication. What is important is the cogency of the evidence, and not the nature of the evidence.

20 As regards the second component of publication, the High Court held that there is no presumption of law that material appearing on the Internet has been published. The High Court stated at [41] as follows:

21 It is therefore insufficient for a plaintiff to simply allege that the defamatory material was posted on the Internet and was accessible in Singapore. It is pertinent to note however that the High Court goes further to hold that publication on the Internet can be proved either directly or indirectly. The High Court reiterated the avenue of indirect proof of publication at [136]:

22 As seen, the proof of publication on the Internet can be inferred. What is required would be some facts in evidence to support an inference of publication in Singapore to a substantial number of third-party readers.

23 For completeness, I also refer to the allusion to the Jameel doctrine in Qingdao Bohai. The Jameel doctrine essentially pertains to claims that concern nominal publication and which are therefore liable to be dismissed as an abuse of process of the court under the doctrine. The High Court in Qingdao Bohai held as follows at [135]:

24 The Jameel doctrine stemmed from a decision of the English Court of Appeal. The High Court Qingdao Bohai referred to our Court of Appeal decision in Yan Jun v AG [2015] 1 SLR 752 (“Yan Jun”) to explain the application of the Jameel doctrine in Singapore. The High Court stated at [146]-[147] as follows:

25 It is seen that the Court of Appeal in Yan Jun held that the principle enunciated in that case should be approached with the necessary circumspection by the Singapore courts. This is because the general principle established in Jameel, viz, that a claim which discloses no real and substantial tort is liable to be struck out for being an abuse of process of the court, is fact-centric in application and not applicable in borderline situations.

26  With the holding in Qingdao Bohai put in context and perspective, I turn now to analysis the evidence of publication in the present case.

27 The claimant called a factual witness, Mr Guo Rendi (“Mr Guo”), who is also the claimant’s paralegal. Mr Guo, who has viewed all of the Pleaded Publications, captured various screenshots and screen recordings of the Pleaded Publication (except for one). He attested to the existence of the Pleaded Accounts and the Pleaded Publications at the material time. ¹¹ In court, Mr Guo affirmed the authenticity of the screenshots and screen recordings. These screenshots and screen recordings pointed to the defendant’s ownership of the Pleaded Accounts. This is except for the 3rd Pleaded Account which was de-activated on the day of the commencement of the present action. The evidence includes the contents of past publications on the Pleaded Accounts, dating back to 2020. I note that it is not the defendant’s case that Mr Guo tampered with or manipulated the screenshots and the screen recordings produced by him.

28 Further, Mr Guo attested to his contemporaneous recording of the timestamps at which the Pleaded Publications were published. He also attested to the fact that he had seen the Pleaded Publications on his laptop on 31 December 2023. ¹² Mr Guo’s evidence in this regard was not discredited by the defendant.

29 In contrast, the defendant’s expert, Mr Chang’s opinion is centred on the absence of URLs and Facebook IDs. ¹³ On that basis, he described an “inability to verify” the existence of the Pleaded Publications. However, as discussed above, Qingdao Bohai at [41] holds that publication on the Internet can be proved either directly or indirectly. Direct evidence of publication in the form of a computer forensic expert to investigate and analyse electronic evidence is not the only way to prove publication on the Internet. Whilst the most obvious way, the High Court held that the use of electronic evidence is not the only means by which the responsibility of a defendant for material appearing on the Internet can be established.

30 Furthermore, the factual evidence adduced by Mr Guo constitutes prima facie evidence that the Pleaded Publications were published by the defendant. With the claimant adducing prima facie evidence of publication by the defendant, the evidentiary evidence shifts to defendant to show that the Pleaded Publications were not published by him. As seen above, Mr Chang’s opinion is centred on the absence of URLs and Facebook IDs. ¹⁴ The thrust of his evidence is the inability to verify the existence of the Pleaded Publications. He is not asserting that the Pleaded Publications did not exist, or that the defendant was not the owner of the Pleaded Accounts. He is asserting the absence of evidence to show the Pleaded Publications existed and that the defendant was the owner of the Pleaded Accounts. In the face of Mr Guo’s positive evidence in the form of screenshots adduced to prove the existence of the Pleaded Publications, Mr Chang’s opinion does not displace the evidentiary burden now placed on the defendant to show otherwise. The evidentiary burden remains with the defendant to adduce positive evidence that the Pleaded Publications were not published by him. The defendant has not discharged his burden to do so. See Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855 at [60]; SCT Technologies Pte Ltd v Western Copper Co Ltd [2016] 1 SLR 1471 at [16]-[19] generally on the shifting of the evidentiary burden.

31 In any event, I note the claimant’s evidence goes further. The evidence adduced shows a name-changing history of the Pleaded Accounts. The name-changing history also links the Pleaded Accounts to one another. At the same time, the linkages connect the Pleaded Accounts to the defendant. The table below sets out the evidence adduced by the claimant of the series of name-changing of the Pleaded Accounts and their connection to the defendant:

32 As seen in Table 2, there is a pattern to the name-changing of the Pleaded Accounts. In my view, it is apparent from the above that the name-changing is deliberate. By tracking the course of the change of names, the Pleaded Accounts are seen to be connected to one another. By so interconnecting, all the Pleaded Accounts are ultimately traceable to the defendant.

33 Further, the contents of the Pleaded Publications as set out in Table 2, and also in Table 1 above comprised information which points to the publisher possessing intimate information about the defendant’s involvement with Fervent Chambers LLC, the various difficulties faced by the defendant in renewing his practising certificate, including his personal medical issues, and matters relating to USP Group Limited (“USP”), a client of Fervent Chambers LLC that was at the centre of the unhappiness between the defendant and the claimant.

34 The information relating to the defendant includes the following:

(a) The circumstances relating to the incorporation of the Fervent Chambers LLC and the circumstances of the claimant becoming he director and shareholder; and the fact of the claimant and defendant being former colleagues at Fervent Chambers LLC.

(b) WhatsApp message transcript between the claimant and the defendant on 7 April 2021 wherein the claimant informed the defendant of the latter’s termination from Fervent Chambers LLC.

(c) The delays in the renewal of the defendant’s practising certificate for the Practice Year 2021/2022.

(d) Reference to a letter issued by Fervent Chambers LLC to the defendant on 16 April 2021 which enclosed the 30 March 2021 and 16 April 2021 letters from the AGC.

(e) Excerpts of the Institute of Mental Health Report dated 21 March 2022 on the defendant.

(f) The defendant’s WhatsApp messages with the claimant, wherein the claimant informed the defendant of police reports being lodged against the latter on 26 August 2022.

35 In my view, having such information personal to the defendant featuring in the Pleaded Publications gives rise to a reasonable inference that the defendant owned the Pleaded Accounts and was the author of the Pleaded Publications.

36 The foregoing evidence taken together constitutes cogent evidence alluded to in Qingdao Bohai (at [74]) connecting the defendant to the Pleaded Accounts. I therefore find that the claimant has shown on a balance of probabilities that the Pleaded Publications were published by the defendant.

37 For completeness, I note that the claimant also contends that the name-changing history demonstrates a blatant lack of remorse and conduct calculated to interfere with the administration of justice, thereby amounting to malice and justifies an award of aggravated damages. I will return to this in the discussion below on the damages to be awarded.

38 I turn now to the question of publication to readers in Singapore. As discussed above, the test as laid down in Qingdao Bohai (at [136]) is that there must be some facts in evidence to support an inference of publication in Singapore to a substantial number of third-party readers.

39 In my view, there is sufficient evidence in the present case to support such an inference in respect of the Pleaded Publications. At the outset, I note in respect of the 1st Pleaded Account “Joseph Tan CA” that the account indicated “920 friends”. In other words, at least 920 Facebook users were able to view the account. In respect of the 5th Pleaded Account “Crypto Mediation Clinics”, we have seen above that it was the same Facebook account as “Current Chronicle”; and the defendant had deliberately effected the change of name. The account “Current Chronicle” depicted that there were “151 friends”. This would mean therefore that at least 151 Facebook users would be able to view the 5th Pleaded Account “Crypto Mediation Clinics”.

40 As regards the 4th Pleaded Account “Ridout Corruption Whitewashed”, I note the two “likes” and one “comment” made in reference to the Pleaded Publication in question. Whilst it does not appear in relation to the 2nd Pleaded Account “Lawyers Mess Chronicled” and the 3rd Pleaded Account “Lawyers WhistleBlown” that the defendant had any “friends”, as pointed out by the claimant, any Facebook users are able to view and access these accounts. This is apparent on the face of each of the Pleaded Publications, which depicted an icon indicating that the setting of the Facebook post is public in nature. In other words, members of the public who are not the “friends” of the Pleaded Accounts would also be able to view the Defendant’s posts. That this is so remains unchallenged by the defendant.

41 What is of greater pertinence in my view however, is the fact that the defendant had hyperlinked and interconnected the five Pleaded Accounts. This would mean that a Facebook user who was viewing any one of the Pleaded Accounts would be able to view the other Pleaded Accounts. For instance, any one of the “920 friends” in respect of the 1st Pleaded Account “Joseph Tan CA” would be able to view the Pleaded Publications under the other four Pleaded Accounts. In other words, the five Pleaded Accounts can be seen as one account, with a common access to the posts under them. With that being the case, taken collectively, it is reasonable to infer that a substantial number of Facebook users have viewed the Pleaded Publications under the Pleaded Accounts. In this regard, it should be noted that the claimant’s testimony that the five accounts are hyperlinked and interconnected was not challenged nor contradicted by the defendant. ³⁵

42 I also note that the parties are Singaporeans who are based in Singapore. They are both lawyers who had practised in the local jurisdiction at some point in time. It is reasonable to assume that the majority of the “friends” of the Pleaded Accounts and the viewers of the Pleaded Publications were based in Singapore when they accessed and viewed the Pleaded Publications. At the same time, there is no reason to believe that there was any significant number of viewers of the Pleaded Publications who were based outside of Singapore.

43 The defendant’s complaint is that the claimant has not provided the evidence of the identities of the viewers of the Pleaded Publications, or that any of them had viewed the posts; or that they were based in Singapore. However, as discussed above, publication of defamatory materials on the Internet can be proved either directly or indirectly. The High Court reiterated the avenue of indirect proof of publication: Qingdao Bohai at [41]. What is required would be some facts in evidence to support an inference of publication in Singapore to a substantial number of third-party readers: Qingdao Bohai at [136]. Whilst the evidence in the present case is indirect in nature, it does not detract from the cogency of the evidence. I find that there is sufficient evidence to support an inference of publication of the Pleaded Publications in Singapore to a substantial number of third-party readers.

44 For completeness, I turn next to the Jameel principle. As discussed, the Court of Appeal in Yan Jun held that the principle enunciated in the Jameel case should be approached with the necessary circumspection by the Singapore courts. To re-cap, this is because the general principle established in Jameel, viz, that a claim which discloses no real and substantial tort is liable to be struck out for being an abuse of process of the court, is fact-centric in application and not applicable in borderline situations.

45 The Jameel principle proceeds on the basis that if the publication of the defamatory material is limited, or the amount claimed as damages is de minimis, the claim is held to disclose no real and substantial tort and will be struck out: Yan Jun at [118]. In the present case, it follows from my finding above that it cannot be said that the publication of the Pleaded Publications is limited. It cannot even be said to be a borderline situation alluded to by the Court of Appeal. The Jameel principle has no application in the present case.

46 In view of all of the foregoing, I find that the Pleaded Publications were published by the defendant, and the publication to readers in Singapore was not insubstantial. As noted above, the defendant does not dispute that the Pleaded Publications referred to the claimant and that they were defamatory of him. As such and as the defendant has not raised any of the usual defences, I find the defendant liable for defaming the claimant.

47 I turn now to the question of damages.

48 It is trite that the purposes of general damages in defamation are as follows:

49 It is also trite that the relevant factors in assessing the quantum of general damages for defamation include the following:

(See Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) at para 13.134)

50 The claimant referred to three precedent cases in his submissions on the quantum of damages. However, precedent cases are seldom useful as the nature and type of defamation, the mode of publication, the conduct and standing of the parties are usually vastly different in each case. Each case turns very much on its own facts.

51 In the present case, as discussed above, the five Pleaded Accounts can be seen as one account, with common access to the posts under them. Following the earlier analysis, I have made the finding above that it is in taking the Pleaded Publications collectively that it can be inferred that a substantial number of Facebook users have viewed the Pleaded Publications under the Pleaded Accounts. Therefore, by the same token, for purposes of assessing damages, it will only be proper that the Pleaded Publications be viewed as one publication. Further and in any event, similar defamatory words were used across the 13 Pleaded Publications. As such, the sting of the defamation was similar in many of the Pleaded Publications. In this regard, I also note the nature and gravity of the defamatory words.

52 Next, in regard to the extent of publication, I have made the finding above that any Facebook user was able to view and access the Pleaded Accounts. This is because the setting of the Facebook post was public in nature. Members of the public who were not the “friends” of the Pleaded Accounts would also be able to view the Defendant’s posts. I note also the standing and conduct of the parties, and the failure of the defendant to apologise. I however note that the Pleaded Accounts have been de-activated by 2 May 2024.

53 Next, I consider the question of aggravated damages. The claimant has submitted that aggravated damages should be awarded.

54 I turn first to the approach in awarding aggravated damages in defamation suits. In Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 2 SLR(R) 971 (“Goh Chok Tong”) at [51], the Court of Appeal disagreed with the trial judge’s approach of awarding separate awards for general damages and for aggravated damages. The Court of Appeal held that “The courts should award one single lump sum as damages.” However, I note subsequently in Peter Lim, the Court of Appeal after making reference to Goh Chok Tong, elaborated on the approach as follows at [40]:

55 Therefore, whilst a single award can be made for damages in a defamation action, the court is to provide a breakdown of the sums awarded as general damages and as aggravated damages.

56 I turn next to the main factors of aggravation, which are well established. They generally include the following:

(a) express malice;

(b) defendant’s conduct after the publication;

(c) refusal or failure of the defendant to apologise; and

(d) a reckless unsuccessful plea of justification.

(See Peter Lim at [7].)

57 In regard to express malice, in Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] 2 SLR 751 the Court of Appeal explained the meaning of malice in the law of defamation. The Court of Appeal held as follows at [92]:

58 Therefore, there are two ways to establish malicious intent on the part of the defendant in a defamation action:

(a) where it can be shown that the defendant had knowledge of falsity or where there was recklessness or lack of belief in the defamatory statement; or

(b) where although the defendant may have a genuine or honest belief in the truth of the defamatory statement, his dominant intention is to injure the claimant, or he has some other improper motive.

59 In the present case, the claimant contends that the defendant had malicious intent as his dominant intention is to injure the claimant. In this regard, the claimant points to the repetition of the sting of the defamation across the Pleaded Publications. The claimant also contends that the name-changing history demonstrates a blatant lack of remorse and conduct calculated to interfere with the administration of justice, thereby justifying an award of aggravated damages. I agree that the name-changing history is an aggravating factor in the light of my earlier discussion. In my view the name-changing also points to the defendant’s dominant intention to injure the claimant.

60 Taking into consideration all of the foregoing discussion in regard to the factors in awarding general and aggravated damages, I am of the view that an award in the sum of $30,000 for general damages and the sum of $20,000 for aggravated damages is appropriate in the present case.

61 Besides damages, the claimant is also asking for a final prohibitory injunction to be granted against the defendant to prohibit him from repeating the defamatory words in the Pleaded Publications.

62 I turn first to the Court of Appeal decision in Chin Bay Ching v Merchant Ventures Pte Ltd [2005] 3 SLR(R) 142 (“Chin Bay Ching”). Whilst Chin Bay Ching concerned an application for an interlocutory prohibitory injunction, where the court would be more cautious in its approach, the guidance given by the Court of Appeal is instructive. The Court of Appeal stated as follows at [42]-[44]:

63 In other words, over and above the twin-requirement that the statements in question must be clearly defamatory and that no possible defence would apply, there must also be evidence of a threat or intention to repeat the defamatory statements before an interlocutory prohibitory injunction will be granted in defamation cases. In my view, there is no reason why the requirement of evidence of a threat or intention to repeat the defamatory statements is not equally applicable in the case of a final prohibitory injunction.

64 This is confirmed by the High Court in Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230 (“Roy Ngerng”) which stated as follows at [55]:

65 It is seen that a final injunction should only be granted when there are reasons to apprehend that the defendant will repeat the defamatory allegations. In the present case, I am of the view that the claimant has not shown that there is evidence of a threat or intention to repeat the defamatory words in the Pleaded Publications. That the defendant repeated the defamatory words against the claimant in the Pleaded Publications across the Pleaded Accounts is a different question from whether there is evidence of a threat or intention to repeat the defamatory words in the future. In this regard, I note that by the claimant’s own case, the Pleaded Accounts were de-activated as of 2 May 2024. ³⁶ In the premises, I decline to grant a final prohibitory injunction against the defendant.

66 In summary, I find that there is cogent evidence connecting the defendant to the Pleaded Accounts. The claimant has shown on a balance of probabilities that the Pleaded Publications were published by the defendant. I also find that the publication to readers in Singapore was not insubstantial.

67 As the defendant does not dispute that the Pleaded Publications referred to the claimant and that they were defamatory of him, and as the defendant has not raised any of the usual defences, I find the defendant liable for defaming the claimant.

68 As for damages, I am of the view that an award in the sum of $30,000 for general damages and the sum of $20,000 for aggravated damages is appropriate. For the reasons detailed above, I decline to grant a final prohibitory injunction against the defendant.

69 Parties are to file written submissions on the question of costs, limited to three pages, within 14 days hereof.