Low Tuck Kwong v Sukamto Sia: Defamation, Malicious Falsehood & Breach of Contract Dispute over Coal Mining Shares

In Low Tuck Kwong v Sukamto Sia, the High Court of Singapore heard a defamation and malicious falsehood action brought by Low Tuck Kwong against Sukamto Sia, along with counterclaims by Sia for breach of contract, proprietary estoppel, constructive trust, breach of fiduciary duty, and money had and received. The dispute arose from letters published by Sia alleging that Kwong reneged on a promise to give Sia 50% of shares in Bayan Resources, a coal mining company. The court, Pillai J, dismissed Kwong's claims, finding that the defense of qualified privilege applied to the publications. The court also dismissed Sia's counterclaims due to a failure to prove the existence of a common understanding between the parties.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Plaintiff's claim in defamation and malicious falsehood dismissed. Defendant's counterclaims dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Defamation and malicious falsehood action concerning letters published during Bayan Resources' IPO. Court found qualified privilege applied, dismissing the claims and counterclaims.

1.7 Decision Date

21 November 2012

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Sukamto Sia	Defendant	Individual	Counterclaim Dismissed	Lost	Giam Chin Toon of Wee Swee Teow & Co Tan Hsuan Boon of Wee Swee Teow & Co Lim Zhi Zhen of Wee Swee Teow & Co
Low Tuck Kwong	Plaintiff	Individual	Claim Dismissed	Lost	Davinder Singh of Drew & Napier LLC Rozalynne Asmali of Drew & Napier LLC Tony Yeo of Drew & Napier LLC Meryl Koh of Drew & Napier LLC

3. Judges

Judge Name	Title	Delivered Judgment
Philip Pillai	Judge	Yes

4. Counsels

Counsel Name	Organization
Giam Chin Toon	Wee Swee Teow & Co
Tan Hsuan Boon	Wee Swee Teow & Co
Lim Zhi Zhen	Wee Swee Teow & Co
Davinder Singh	Drew & Napier LLC
Rozalynne Asmali	Drew & Napier LLC
Tony Yeo	Drew & Napier LLC
Meryl Koh	Drew & Napier LLC

4. Facts

Plaintiff and defendant were close friends until 1997, after which they became bitter enemies.
In late 2007, Bayan Resources began preparing for its initial public offering (IPO) on the IDX.
Defendant's lawyers sent letters to the plaintiff, Bayan Resources, BAPEPAM, IDX, and the IPO Advisors alleging the plaintiff owed the defendant 50% of Bayan Resources' shares.
The letters requested the IPO be suspended due to a legal dispute over ownership of Bayan Resources.
Plaintiff withdrew his shares from the IPO vendor shares sale.
BAPEPAM issued the Effective Statement allowing the IPO to proceed, and the IPO was launched on 12 August 2008.
Plaintiff commenced action against the defendant for defamation and malicious falsehood; defendant counterclaimed for breach of contract, proprietary estoppel, etc.

5. Formal Citations

Low Tuck Kwong v Sukamto Sia, Suit No 703 of 2008, [2012] SGHC 233
Low Tuck Kwong v Sukamto Sia, , [2009] SGHC 147

6. Timeline

Date	Event
1995-01-01	Plaintiff allegedly faced a financial crisis.
1996-01-01	Defendant allegedly provided funds to the plaintiff for a coal mining business.
1997-01-01	Plaintiff and defendant became bitter enemies.
2004-10-07	Bayan Resources was incorporated in Indonesia.
2007-01-01	Bayan Resources began preparing for its initial public offering (IPO) on the IDX.
2008-07-10	Defendant's lawyers sent the 1st Letter to the plaintiff and Bayan Resources.
2008-07-14	Bayan Resources' lawyers sent a letter to the defendant's lawyers requesting a copy of the Special Power of Attorney.
2008-07-15	Defendant's lawyers sent the 2nd Letter to the plaintiff, Bayan Resources, and SRS.
2008-07-21	Defendant's lawyers sent the 3rd Letter to BAPEPAM, IDX, PT Trimegah, Merrill Lynch, and Macquarie Securities and Macquarie Consultants.
2008-07-24	Bayan Resources informed BAPEPAM and IDX that the plaintiff would withdraw his shares from the IPO vendor shares sale.
2008-08-04	BAPEPAM issued the Effective Statement allowing the IPO to proceed.
2008-08-05	Publication in Suara Pembaruan newspaper.
2008-08-06	Publication in Bisnis Indonesia newspaper and Bayan Resources' Indonesian Final Prospectus.
2008-08-12	Bayan Resources' IPO was launched.
2008-10-03	Plaintiff commenced action against the defendant for defamation and malicious falsehood.
2012-11-22	Judgment reserved.

7. Legal Issues

Defamation
- Outcome: The court found that the defense of qualified privilege applied, and the plaintiff failed to prove malice, thus the defamation claim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Publication of defamatory statements
  - Qualified privilege
  - Malice
  - Justification
- Related Cases:
  - [1971] 1 AC 356
  - [2011] 1 SLR 391
  - [2009] SGHC 147
  - [2012] 1 SLR 506
  - [2003] EMLR 218
  - [2009] 2 SLR(R) 1004
  - [1997] QB 123
  - [1997] 3 SLR(R) 46
  - [1962] 1 QB 237
  - [2003] 3 SLR(R) 146
  - [1979] 1 WLR 377
  - [2000] 1 WLR 2150
  - [2007] 1 WLR 2933
  - [1917] A.C. 309
  - [1915] SALR 47
  - [1975] AC 135
  - (1846) 15 L.J.C.P. 290
  - [2001] 1 SLR(R) 86
  - [1965] 2 Q.B. 86
  - [1998] 2 SLR(R) 971
  - [1990] 1 SLR(R) 709
Malicious Falsehood
- Outcome: The court found that the plaintiff failed to prove the claims in the publications were false or that the defendant acted with malice, thus the malicious falsehood claim was dismissed.
- Category: Substantive
- Sub-Issues:
  - False statement
  - Malice
  - Special damage
- Related Cases:
  - [2008] SGHC 114
Breach of Contract
- Outcome: The court found that the defendant failed to prove the existence of a common understanding, thus the breach of contract counterclaim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Existence of contract
  - Terms of contract
  - Breach of contract
Proprietary Estoppel
- Outcome: The court found that the defendant failed to prove the existence of a common understanding, thus the proprietary estoppel counterclaim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Assurance
  - Reliance
  - Detriment
Constructive Trust
- Outcome: The court found that the defendant failed to prove the existence of a common understanding, thus the constructive trust counterclaim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Unconscionability
  - Common intention
Breach of Fiduciary Duty
- Outcome: The court found that the defendant failed to prove the existence of a common understanding, thus the breach of fiduciary duty counterclaim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Existence of fiduciary duty
  - Breach of duty
  - Loss
Money Had and Received
- Outcome: The court found that the defendant failed to prove the existence of a common understanding, thus the money had and received counterclaim was dismissed.
- Category: Substantive
- Sub-Issues:
  - Unjust enrichment

8. Remedies Sought

General Damages
Special Damages
Injunction

9. Cause of Actions

Defamation
Malicious Falsehood
Breach of Contract
Proprietary Estoppel
Constructive Trust
Breach of Fiduciary Duty
Money Had and Received

10. Practice Areas

Commercial Litigation
Defamation Litigation

11. Industries

Mining
Finance

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Boys v Chaplin	House of Lords	Yes	[1971] 1 AC 356	England and Wales	Cited for the double actionability rule in tort cases involving foreign elements.
JIO Minerals FZC and others v Mineral Enterprises Ltd	High Court of Singapore	Yes	[2011] 1 SLR 391	Singapore	Cited for the double actionability rule in tort cases involving foreign elements.
Low Tuck Kwong v Sukamto Sia	High Court of Singapore	Yes	[2009] SGHC 147	Singapore	Cited as a previous decision involving the same parties.
Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal	Court of Appeal of Singapore	Yes	[2012] 1 SLR 506	Singapore	Cited for the principles applicable to the construction of words based on their natural and ordinary meanings in defamation cases.
Chase v News Group Newspapers Ltd	England and Wales Court of Appeal	Yes	[2003] EMLR 218	England and Wales	Cited for the three levels of defamatory meaning.
Lim Eng Hock Peter v Lin Jian Wei and another	High Court of Singapore	Yes	[2009] 2 SLR(R) 1004	Singapore	Cited regarding the bane and antidote principle in determining defamatory meaning.
Stern v Piper	England and Wales Court of Appeal	Yes	[1997] QB 123	England and Wales	Cited for the repetition rule in defamation.
Goh Chok Tong v Jeyaretnam Joshua Benjamin	Court of Appeal of Singapore	Yes	[1997] 3 SLR(R) 46	Singapore	Cited regarding the responsibility for republications.
Time Inc Asia et al v H.M. Soeharto	Indonesian Supreme Court	Yes	No 273 PK/PDT/2008	Indonesia	Cited for the principle that defamation claims should be brought under Article 1372 of the ICC, not Article 1365.
Lauw Juanda Lesmana v Hasim Sutiono Suryopratomo	Indonesian Supreme Court	Yes	No 1331K/PDT/2004	Indonesia	Cited as an example where the Indonesian Supreme Court upheld a lower court decision on an “affront” claim under article 1365 of the ICC read with article 1372 of the ICC.
Denden Sudarman v Yusuf Suparma	Indonesian Supreme Court	Yes	No 396K/PET/2001	Indonesia	Cited as an example where the Indonesian Supreme Court upheld a lower court decision on a defamation claim under article 1365 of the ICC.
Lincoln v Daniels	England and Wales Court of Appeal	Yes	[1962] 1 QB 237	England and Wales	Cited for the categories of absolute privilege.
D v Kong Sim Guan	High Court of Singapore	Yes	[2003] 3 SLR(R) 146	Singapore	Cited for the extension of absolute privilege to tribunals.
Trapp v Mackie	House of Lords	Yes	[1979] 1 WLR 377	England and Wales	Cited for the factors to determine if sufficient similarity exists for absolute privilege to apply to tribunals.
Mahon v Rahn (No. 2)	England and Wales Court of Appeal	Yes	[2000] 1 WLR 2150	England and Wales	Cited as an example where absolute privilege was extended to a bank’s response to queries from a securities regulator.
Buckley v Dalziel	England and Wales Court of Appeal	Yes	[2007] 1 WLR 2933	England and Wales	Cited as an example where absolute privilege was extended to a complaint made to the police.
Adam v Ward	House of Lords	Yes	[1917] A.C. 309	England and Wales	Cited for the duty-interest test for qualified privilege.
Mallan v A M Bickford & Sons, Limited	Supreme Court of South Australia	Yes	[1915] SALR 47	Australia	Cited for the duty-interest test for qualified privilege.
Horrocks v Lowe	House of Lords	Yes	[1975] AC 135	England and Wales	Cited for the rationale for the defence of qualified privilege and the meaning of malice.
Blackham v Pugh	Court of Common Pleas	Yes	(1846) 15 L.J.C.P. 290	England and Wales	Cited regarding the protection of one's own interest in qualified privilege.
Arul Chandran v Chew Chin Aik Victor	Court of Appeal of Singapore	Yes	[2001] 1 SLR(R) 86	Singapore	Cited for the defence of justification and the functions of general damages in defamation cases.
McCarey v Associated Newspapers Ltd (No. 2)	England and Wales Court of Appeal	Yes	[1965] 2 Q.B. 86	England and Wales	Cited regarding the inclusion of pecuniary loss in compensatory damages.
Goh Chok Tong v Jeyaretnam Joshua Benjamin	Court of Appeal of Singapore	Yes	[1998] 2 SLR(R) 971	Singapore	Cited regarding aggravated damages as a component of general compensatory damages.
Lee Kuan Yew v Jeyaretnam Joshua Benjamin	High Court of Singapore	Yes	[1990] 1 SLR(R) 709	Singapore	Cited regarding the court's jurisdiction to grant an injunction in defamation cases.
WBG Network (Singapore) Pte Ltd v Meridian Life International Pte Ltd and others	High Court of Singapore	Yes	[2008] SGHC 114	Singapore	Cited for the elements of the tort of malicious falsehood.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Indonesian Civil Code Article 1365	Indonesia
Indonesian Civil Code Article 1372	Indonesia
Indonesian Penal Code Article 310	Indonesia
Law of the Republic of Indonesia Number 8 Year 1995 Concerning the Capital Market articles 70, 78, 80 and 81	Indonesia
Indonesian Civil Code articles 1238 and 1243	Indonesia
Indonesian Civil Code articles 1243-1252	Indonesia
Indonesian Civil Code article 1376	Indonesia

15. Key Terms and Keywords

15.1 Key Terms

Defamation
Malicious Falsehood
Qualified Privilege
Common Understanding
Bayan Resources
Initial Public Offering
Indonesian Stock Exchange
BAPEPAM
Indonesian Publications
Indonesian Republications
Singapore Republications

15.2 Keywords

Defamation
Malicious Falsehood
Qualified Privilege
Coal Mining
IPO
Indonesia
Singapore

17. Areas of Law

Area Name	Relevance Score
Defamation	90
Malicious Falsehood	70
Misrepresentation	60
Contract Law	50
Estoppel	40
Trust Law	30
Fiduciary Duties	30
Litigation	20
Civil Procedure	20
Unjust Enrichment	20

16. Subjects

Defamation
Malicious Falsehood
Contract Law
Securities Law
Civil Litigation