Leong Sze Hian v Lee Hsien Loong [2019] SGCA 53

Sushant Shukla

Case Details

Citation: [2019] SGCA 53
Court: Court of Appeal of the Republic of Singapore
Decision Date: 27 September 2019
Coram: Sundaresh Menon CJ, Andrew Phang Boon Leong JA, Judith Prakash JA
Case Number: Civil Appeal No 61 of 2019
Hearing Date(s): 27 September 2019
Appellant: Leong Sze Hian
Respondent: Lee Hsien Loong
Counsel for Appellant: Lim Tean (Carson Law Chambers)
Counsel for Respondent: Davinder Singh s/o Amar Singh SC, Lin Xianyang Timothy, Fong Cheng Yee David, Darveenia Rajula Rajah and Shannon Valencia Peh (Davinder Singh Chambers LLC)
Practice Areas: Civil Procedure; Striking out; Tort Law

The decision in [2019] SGCA 53 represents a definitive confirmation by the Court of Appeal regarding the non-existence of the tort of abuse of process within the Singapore legal landscape. The appeal arose from a defamation action initiated by the Respondent, Lee Hsien Loong, against the Appellant, Leong Sze Hian. In response to the defamation claim, the Appellant had attempted to mount a counterclaim founded upon the alleged tort of abuse of process, contending that the Respondent was utilizing the legal machinery of the state for the collateral purpose of silencing political critics. This case serves as a critical post-script to the landmark ruling in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] 2 SLR 866, testing whether any exceptions could be carved out of the general rule against the recognition of this tort.

The Court of Appeal, presided over by Sundaresh Menon CJ, Andrew Phang Boon Leong JA, and Judith Prakash JA, dismissed the appeal in its entirety, upholding the High Court's decision to strike out the Appellant's counterclaim. The Court’s judgment was delivered ex tempore, emphasizing the clarity and finality of the doctrinal position. The Court rejected the Appellant’s argument that the Respondent’s status as the Prime Minister or the alleged involvement of state agencies like the Infocomm Media Development Authority (IMDA) necessitated a departure from established precedent. The ruling reinforces the principle that the Singapore judiciary will not recognize a standalone cause of action for abuse of process, preferring instead to rely on existing procedural safeguards and cost-shifting mechanisms to address litigation misconduct.

Doctrinally, the case is significant for its refusal to allow a "public capacity" exception to the rule established in Lee Tat Development. The Appellant had argued that when a public figure uses the courts in a manner that allegedly suppresses speech, the tort of abuse of process should be available as an offensive weapon. The Court of Appeal found this argument fundamentally flawed, noting that the Respondent had brought the suit in his personal capacity using private legal representation. By dismissing the appeal, the Court signaled that the policy reasons against recognizing the tort—namely the prevention of satellite litigation and the protection of the principle of finality—apply with equal force regardless of the political or public stature of the litigants involved.

Ultimately, the judgment clarifies that while "abuse of process" remains a potent procedural concept that can lead to the striking out of a claim or the imposition of indemnity costs, it cannot serve as the basis for a counterclaim for damages. The Court’s decision to fix costs at $20,000 further underscores the consequences for litigants who attempt to revive causes of action that have been expressly foreclosed by the apex court. For practitioners, the case stands as a stern reminder of the boundaries of creative pleading in the face of clear, recent, and unanimous appellate authority.

Timeline of Events

November 2018 (Approximate): The Respondent, Lee Hsien Loong, commences a defamation action against the Appellant, Leong Sze Hian, in the High Court.
Post-Commencement: The Appellant indicates his intention to defend the defamation claim and subsequently files a counterclaim against the Respondent.
Interlocutory Phase: The Respondent files an application to strike out the Appellant’s counterclaim on the basis that it discloses no reasonable cause of action.
Interlocutory Phase: The Appellant files a cross-application to strike out the Respondent’s defamation claim, alleging that the suit itself constitutes an abuse of process.
High Court Hearing: The High Court Judge hears both applications. The Judge orders the striking out of the Appellant’s counterclaim but dismisses the Appellant’s application to strike out the Respondent’s primary defamation claim.
Appeal Filing: The Appellant, Leong Sze Hian, files Civil Appeal No 61 of 2019, appealing only against the High Court's decision to strike out his counterclaim.
27 September 2019: The substantive hearing of the appeal takes place before the Court of Appeal.
27 September 2019: The Court of Appeal delivers its ex tempore judgment, dismissing the appeal and affirming the striking out of the counterclaim.
27 September 2019: The Court of Appeal fixes costs of the appeal at $20,000, inclusive of disbursements, to be paid by the Appellant to the Respondent.

What Were the Facts of This Case?

The factual matrix of [2019] SGCA 53 is rooted in a high-profile defamation dispute between the Prime Minister of Singapore, Lee Hsien Loong (the Respondent), and a private citizen and social commentator, Leong Sze Hian (the Appellant). The underlying litigation was triggered by the Appellant’s act of sharing a link on social media to an article that contained allegedly defamatory statements concerning the Respondent. The article in question suggested that the Respondent was involved in "secret deals" and "corrupted" activities related to the 1Malaysia Development Berhad (1MDB) fund, a matter of significant public interest and international scrutiny. Following the publication, the Respondent initiated legal proceedings for defamation, seeking damages and an injunction.

The Appellant did not merely seek to defend the defamation claim through traditional means, such as the defenses of fair comment, justification, or qualified privilege. Instead, the Appellant adopted a more aggressive litigation posture. He filed a counterclaim against the Respondent, alleging that the commencement of the defamation action was itself an "abuse of process." The core of the Appellant's factual contention was that the Respondent was not genuinely seeking to vindicate his reputation but was instead using the legal system as a tool of the state to silence political dissent and intimidate critics. This was framed as an offensive cause of action intended to yield damages for the Appellant.

In the High Court, the procedural history became complex as both parties sought to strike out each other's pleadings. The Respondent moved to strike out the counterclaim on the grounds that the tort of abuse of process was not recognized in Singapore law, citing the recent Court of Appeal decision in Lee Tat Development. Simultaneously, the Appellant sought to strike out the Respondent’s defamation claim, arguing that the suit was an abuse of the court's process. The High Court Judge ruled in favor of the Respondent on both counts: the Appellant’s counterclaim was struck out because it lacked a recognized legal basis, while the Respondent’s defamation claim was allowed to proceed to trial, as it was not found to be an abuse of process at that interlocutory stage.

The Appellant chose to appeal only the striking out of his counterclaim. Consequently, the Court of Appeal was not tasked with evaluating the merits of the defamation claim or the viability of the Appellant’s procedural defenses. The factual focus of the appeal was narrowed to whether the specific circumstances of this case—namely the identity of the Respondent as a high-ranking public official and the alleged involvement of state agencies—justified the recognition of a new tort or an exception to the existing rule. The Appellant’s counsel, Mr. Lim Tean, argued that the Respondent was acting in his "public capacity" and was "using the machinery of the state" to silence his critics. To support this, the Appellant pointed to statements made by the Infocomm Media Development Authority (IMDA) and other government agencies regarding the article he had shared.

The Respondent, represented by Mr. Davinder Singh SC, maintained that the suit was a private action brought in his individual capacity to protect his personal reputation. The Respondent emphasized that he had engaged private solicitors and was not utilizing state resources for the litigation. The factual dispute thus centered on whether the litigation could be characterized as a state-driven effort to suppress speech or whether it remained a private civil dispute governed by the standard rules of tort law. The Court of Appeal noted that the only "organ of state" actually involved in the proceedings was the judiciary itself, which is a neutral arbiter. The Court also observed that the Appellant's counsel could not produce any legal authority, either from Singapore or other jurisdictions, where a defendant in a defamation suit was permitted to bring a successful counterclaim against the plaintiff for the act of suing.

What Were the Key Legal Issues?

The primary legal issue before the Court of Appeal was whether the tort of abuse of process is a recognized cause of action under the law of Singapore. This issue was central because the Appellant’s counterclaim depended entirely on the existence of such a tort. If the tort was not recognized, the counterclaim would necessarily fail to disclose a reasonable cause of action and would be liable to be struck out under the Rules of Court.

A secondary, but equally critical, issue was whether the Court should "carve out an exception" to the general rule against recognizing the tort of abuse of process in cases where the plaintiff is a public figure or where the litigation is allegedly motivated by a desire to silence political critics. The Appellant argued that the unique facts of the case—involving the Prime Minister and the alleged use of "state machinery"—distinguished it from the precedent set in Lee Tat Development. This required the Court to determine if the identity of the parties or the nature of the underlying dispute could provide a doctrinal basis for departing from a recently established rule of the apex court.

The third issue concerned the distinction between "abuse of process" as a procedural defense and "abuse of process" as a substantive tort. The Court had to address whether the existing procedural safeguards in Singapore law (such as the power to strike out abusive claims and the awarding of indemnity costs) were sufficient to protect defendants from meritless or oppressive litigation, thereby obviating the need for a standalone tort. This issue involved a deep dive into the policy considerations that inform the development of tort law in Singapore, particularly the balance between the right of access to justice and the need to prevent the courts from being used for collateral, improper purposes.

How Did the Court Analyse the Issues?

The Court of Appeal’s analysis began with a rigorous application of the doctrine of stare decisis. The Court identified the decision in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] 2 SLR 866 as the "insuperable obstacle" for the Appellant. In that case, a five-judge panel of the Court of Appeal had explicitly held that the tort of abuse of process is not part of Singapore law. The Court in the present case noted at [6] that the Appellant’s claim was "foreclosed" by this recent and authoritative decision. The Court emphasized that Lee Tat Development was a "fully reasoned unanimous decision" that had carefully weighed the arguments for and against the recognition of the tort before rejecting it.

The Court then addressed the Appellant’s primary argument: that the Respondent was acting in his public capacity and using the "machinery of the state" to silence critics. The Court deconstructed this argument by examining the actual nature of the legal proceedings. Sundaresh Menon CJ, delivering the judgment, observed that the Respondent had brought the action "evidently in his own capacity and using his own solicitors" (at [4]). The Court found no evidence that the state's legal or administrative apparatus was being used to prosecute the defamation claim. The Court pointed out that the only organ of state involved was the judiciary, which is the very body tasked with resolving the dispute. When the Appellant’s counsel, Mr. Lim Tean, clarified that he was referring to statements by the IMDA and other agencies, the Court responded at [4]:

"We pointed out to Mr Lim that whatever those agencies might have done, they had nothing to do with the suit that was before us."

This distinction was crucial. The Court held that the actions of administrative agencies, even if they related to the same subject matter, did not transform a private defamation suit into an exercise of state power that would justify creating a new legal remedy. The Court further noted the lack of any precedent for the Appellant's position, stating at [5] that Mr. Lim was unable to cite "any case, whether in Singapore or in any other jurisdiction, where it was held that a person who makes a potentially defamatory publication can then have a viable claim against the person at the receiving end of that publication for attempting to protect his interests."

The Court then turned to the policy rationales articulated in Lee Tat Development to explain why no "carve-out" or exception should be made. The Court summarized these reasons at [7], providing a comprehensive overview of why the tort of abuse of process is rejected in Singapore:

Finality of Litigation: Recognizing the tort would undermine the principle that litigation should come to an end. If a party could sue for the act of being sued, it would create an endless cycle of claims and counterclaims.
Avoidance of Satellite Litigation: The tort would encourage parties to engage in secondary disputes about the motives behind the primary litigation, rather than focusing on the merits of the case itself.
Floodgates Concern: The Court feared that recognizing the tort would lead to a "proliferation of such claims," as almost every defendant in a contentious suit might allege that the plaintiff had an improper motive.
Deterrence of Genuine Litigants: If the tort existed, people with valid legal claims might be deterred from seeking judicial relief for fear of being met with a counterclaim for abuse of process.
Adequacy of Existing Safeguards: The Court emphasized that the Rules of Court already provide robust mechanisms to deal with abusive litigation. These include the power to strike out pleadings that are "scandalous, frivolous or vexatious" or which "may prejudice, embarrass or delay the fair trial of the action." Furthermore, the Court can award costs on an indemnity basis to penalize parties who bring abusive suits.

The Court concluded that these policy reasons applied with full force to the present case. The fact that the Respondent was the Prime Minister did not change the underlying legal principles. The Court held that the law must be applied consistently, regardless of the political status of the parties. By refusing to recognize the tort, the Court ensured that the defamation trial could proceed to focus on the actual legal issues—whether the statements were defamatory and whether any defenses applied—rather than being sidetracked by a speculative and unrecognized cause of action.

The Court’s analysis was also notable for its focus on the "offensive" nature of the Appellant’s counterclaim. The Court distinguished between using "abuse of process" as a shield (to strike out a claim) and using it as a sword (to claim damages). While the former is a well-established procedural tool, the latter is a substantive tort that Singapore law has deliberately chosen not to adopt. The Court’s ex tempore delivery reflected the view that the law on this point was settled and that the Appellant’s attempt to distinguish Lee Tat Development was without merit. The Court's reasoning was concise but thorough, addressing each of the Appellant's contentions before reaffirming the doctrinal status quo.

What Was the Outcome?

The Court of Appeal dismissed the appeal in its entirety. The primary consequence of this decision was the affirmation of the High Court’s order striking out the Appellant’s counterclaim. The Court held that the counterclaim disclosed no reasonable cause of action because the tort of abuse of process is not recognized in Singapore. The operative paragraph of the judgment, which encapsulates the final disposition, states at [8]:

"In the circumstances, we dismiss the appeal."

As a result of this dismissal, the litigation between the parties was narrowed to the Respondent’s original defamation claim and the Appellant’s defenses thereto. The Appellant was precluded from seeking damages or any other relief based on the theory that the defamation suit was a tortious abuse of process. This outcome effectively closed the door on any attempt to use the "abuse of process" doctrine as an offensive cause of action in this or future cases, absent a radical departure from precedent by a future court.

Regarding the financial implications of the appeal, the Court of Appeal made a specific order for costs. The Court followed the general rule that costs follow the event, requiring the unsuccessful Appellant to compensate the Respondent for the legal expenses incurred in defending the appeal. The Court ordered at [9]:

"The appellant shall pay the respondent costs fixed at $20,000, inclusive of disbursements."

This quantum of $20,000 was a fixed amount, intended to provide a final resolution to the costs issue for the appellate stage of the proceedings. The Court also addressed the security for costs that had been previously mandated for the appeal. It ordered that the "usual order for the payment out of the security for costs shall apply," meaning that the funds deposited by the Appellant as security would be released to the Respondent to satisfy, in part or in full, the costs award.

The outcome of [2019] SGCA 53 was therefore a total victory for the Respondent on the specific issue of the counterclaim. It reinforced the procedural integrity of the defamation action and signaled the judiciary's commitment to preventing the expansion of tort law into areas that would invite satellite litigation and undermine the finality of judicial proceedings. For the Appellant, the outcome meant that his grievances regarding the Respondent's alleged motives would have to be addressed, if at all, within the framework of his defenses to the defamation claim or through procedural applications, rather than through a standalone claim for damages.

Why Does This Case Matter?

The significance of [2019] SGCA 53 lies in its role as a "gatekeeper" decision that prevents the fragmentation of civil litigation in Singapore. By reaffirming the rule in Lee Tat Development, the Court of Appeal has provided practitioners with absolute certainty that the tort of abuse of process does not exist in this jurisdiction. This is not merely a technical point of law; it is a fundamental policy choice that shapes how litigation is conducted. In many other common law jurisdictions, the tort of abuse of process remains a murky and often-litigated area. Singapore’s clear "no-recognition" stance simplifies the legal landscape and prevents the type of "litigation about litigation" that can exhaust the resources of both the parties and the state.

Furthermore, the case is a landmark for its rejection of the "public capacity" exception. In an era where "Strategic Lawsuits Against Public Participation" (SLAPPs) are a subject of intense global debate, the Appellant’s argument was essentially an attempt to introduce a SLAPP-like defense in the form of a tortious counterclaim. The Court of Appeal’s refusal to entertain this, even when the plaintiff was the Prime Minister, underscores a commitment to formal legal equality. The Court’s reasoning suggests that the identity of the plaintiff—whether a private citizen or the head of government—does not alter the fundamental rules of civil procedure or the recognized categories of tort. This provides a clear signal that the courts will not be used as a forum for political maneuvering through the creation of bespoke legal doctrines.

For practitioners, the case matters because it defines the limits of "creative pleading." While lawyers are encouraged to zealously advocate for their clients, this case demonstrates that there are hard boundaries when an apex court has recently and clearly ruled on a point of law. The imposition of $20,000 in costs serves as a practical reminder of the risks associated with pursuing appeals that seek to circumvent established precedent without a compelling doctrinal basis. It also clarifies that "abuse of process" is a procedural concept, not a substantive one. Practitioners who believe their clients are being subjected to abusive litigation must look to the Rules of Court—specifically the powers to strike out and the rules on costs—rather than attempting to draft a counterclaim for damages.

The case also has broader implications for the law of defamation in Singapore. It ensures that defamation suits will be decided on their traditional merits: the meaning of the words, the extent of publication, and the validity of established defenses. By stripping away the possibility of an "abuse of process" counterclaim, the Court has ensured that the focus remains on the protection of reputation and the right to free speech within the existing legal framework. This prevents defamation trials from being transformed into inquiries into the subjective motives of the plaintiff, which would be both difficult to prove and potentially irrelevant to the core legal issues. In sum, [2019] SGCA 53 is a cornerstone of Singapore’s procedural law, reinforcing the values of finality, efficiency, and the rule of law.

Practice Pointers

Cease Pleading Abuse of Process as a Tort: Practitioners must refrain from including "abuse of process" as a cause of action in any Statement of Claim or Counterclaim. The Court of Appeal has made it unequivocally clear that this tort is not recognized in Singapore.
Utilize Procedural Remedies for Abusive Suits: If a client is faced with a suit that appears to be brought for an improper collateral purpose, the correct strategy is to apply to strike out the claim under the Rules of Court (e.g., on the grounds that it is "frivolous or vexatious" or an "abuse of the process of the court").
Focus on Indemnity Costs: Where a suit is found to be an abuse of process, practitioners should seek costs on an indemnity basis. This is the recognized method in Singapore for the court to express its disapproval of litigation misconduct and to compensate the aggrieved party.
Distinguishing Precedent Requires Doctrinal Depth: This case shows that simply pointing to the "public status" of an opponent is insufficient to distinguish a binding precedent like Lee Tat Development. Any attempt to distinguish such a case must be grounded in fundamental legal principles, not just factual or political context.
Be Wary of "Machinery of State" Arguments: Arguments that a private civil suit is an exercise of "state machinery" will likely fail unless it can be shown that state resources (such as the Attorney-General's Chambers or public funds) are directly involved in the prosecution of the private claim.
Advise Clients on the Risks of Novel Counterclaims: Clients should be warned that attempting to bring counterclaims based on unrecognized torts can lead to significant cost orders, as seen in the $20,000 award in this case.
Separate Administrative Actions from Civil Litigation: The actions of government agencies (like the IMDA) are generally considered separate from private civil litigation. Practitioners should not assume that the conduct of an agency will be attributed to a private plaintiff, even if that plaintiff is a government official.
Prepare for Ex Tempore Judgments in Clear Cases: When the law is settled by recent apex court authority, practitioners should be prepared for the Court of Appeal to deliver a summary, ex tempore dismissal of the appeal.

Subsequent Treatment

As a 2019 decision that reaffirms a 2018 five-judge panel ruling, [2019] SGCA 53 has become a standard citation for the proposition that the tort of abuse of process does not exist in Singapore. It is frequently cited in interlocutory applications where a party attempts to plead such a tort or where a party seeks to strike out a claim on procedural "abuse of process" grounds. The case has effectively ended the debate on this specific doctrinal point, and subsequent High Court decisions have consistently applied it to strike out counterclaims that mirror the one attempted by the Appellant here. There has been no indication from the Singapore courts of any willingness to revisit this issue or to create the "carve-out" that was rejected in this judgment.