NKF VS SPH: ST'S COURT TRANSCRIPT FOR JULY 11 - MORNING SESSION
MR KHOO: My name is Mr Michael Khoo. I appear for the plaintiffs, both the plaintiffs. With me are Ms Low and Mr Chiok, and we also have Mr Peter Gabriel; he is seated behind me, he is also with me. And on behalf of the defendants are my learned friends, Mr Davinder Singh and Mr Adrian Tan.
MR SINGH: And Mr Peter Wadeley, your Honour.
MR KHOO: I do not know whether your Honour's practice is to mark the documents. We have some housekeeping matters. We have the setting down bundle which contains the pleadings. Would your Honour want to have that marked?
COURT: If you so wish.
MR KHOO: Could it be so marked as SDB? They have been divided into 17 tabs, tabs 1 to 17. We also have agreed bundles. There are six files of agreed bundles. May they be marked as AB, volumes 1 to 6?
COURT: Yes.
MR KHOO: I have also in addition a plaintiffs' core bundle. Could we mark it as PCB1 to 240? I believe the defendants also have a core bundle. It is from pages 1 to 282. Both parties have tendered the respective openings. Does your Honour wish to have them marked?
COURT: Consider them read.
MR KHOO: Yes, but do you wish to have them marked?
Thank you, your Honour.
I think that that will take care of the housekeeping matters. May we proceed - in view of the fact that the openings have been taken as read - to call our first witness.
MR SINGH: Your Honour, I should point out that my learned friend has not introduced my bundles. I have four defendants' bundles and one defendants' core bundle. My learned friend had earlier referred to six agreed bundles. We have only been served with five, but we will not hold up these proceedings. We would hope that my learned friend would extend us the courtesy and serve us the sixth as well sometime in the course of the morning.
MR KHOO: If there was non-service of the sixth, it was due to inadvertence, and it will be rectified.
Before I call my first witness, may I have Mr Richard Yong, who is the chairman of the NKF to represent the NKF and be allowed to sit in court during the proceedings. He is also a witness, but he is the representative of the NKF.
MR SINGH: Your honour, I leave it to my learned friend to decide who he wishes to bring into court, but I will leave my comments for his presence, and the fact that he is going to give evidence to a subsequent point.
COURT: Please proceed.
MR KHOO: In the meantime, perhaps all the other witnesses could leave the courtroom.
As I mentioned earlier, my first witness is the 2nd plaintiff, Mr TT Durai. May he take the stand, your Honour?
Your Honour, in view of my learned friend's comments, Mr Yong for the record has left the courtroom, voluntarily left.
MR TT DURAI (affirmed)
Cross-examination by MR KHOO
MR KHOO: You are TT Durai, chief executive officer of the National Kidney Foundation?
A: That is so.
MR KHOO: Mr Durai, we have here two bundles. Can you please look at the two bundles of documents? The first one is headed or entitled 'Affidavit of Evidence-in-chief of TT Durai'.
A: Yes.
MR KHOO: There is a second volume to that affidavit which comprises exhibits.
A: Yes.
Q: Mr Durai, would you please turn to the end of text of this affidavit? I refer you to page 74 of your affidavit.
A: Yes.
Q: Do you confirm your signature as appearing against the affirmation?
A: Yes.
Q: Which was made on 8th June 2005?
A: Yes, sir.
Q: This represents your affidavit of evidence-in-chief in these proceedings?
A: Yes.
Q: Mr Durai, you have informed me that you wish to make two corrections to the affidavit, and in respect of the first, may I turn you to para 24 at page 11 of your affidavit?
A: Yes.
Q: The first line reads: 'I left the legal service in Dec 1997 and joined Messrs Rodyk & Davidson as a partner.' You wish to make a typographical correction to that first sentence?
A: I would like the words 'as a partner' deleted. It is not correct.
Q: '...and joined Messrs Rodyk & Davidson...' The words 'as a partner' should be deleted. There should be a full-stop after that. Is that the only correction in that paragraph?
A: Yes.
Q: And may I turn you to page 68, paragraph 176? The first sentence reads: 'It is not true that other NKF executives fly business class, but it is true that I do on occasion.' Is there any correction you wish to make to that sentence?
A: The correction should be 'but it is true that I do so'. The words 'on occasion' should be taken off.
Q: The words 'on occasion' should be deleted. Are there any other corrections which you have spotted in this affidavit?
A: No.
Q: Do you affirm that this affidavit as corrected represents the truth of the matters stated therein?
A: That is so.
Cross-examination by MR SINGH
MR SINGH: Good morning, Mr Durai.
Mr Durai, the article in question in relation to which you and NKF are suing appeared on 19th April 2004; is that correct?
A: Yes.
Q: As a result of that article, you and NKF took legal advice and issued a letter of demand.
A: That is so.
Q: Can I show you the letter of demand? It is at page 356.
A: Yes.
Q: Would it be right to say that this letter was sent after you had the opportunity of considering the article carefully as well as taking legal advice on it?
A: Yes.
Q: And were you satisfied that this demand represented correctly and accurately the nature of your claim?
A: That is so.
Q: Could I ask you to look at paragraph 4 of that letter at page 357?
A: Yes.
Q: Paragraph 4 reads: 'The words in the aforesaid portion of the article are defamatory of our clients the NKF and Mr TT Durai. In this natural and ordinary meaning and/or by the inference which can be reasonably drawn from them, the said words meant and were understood to mean...'
Then you set out four meanings; do you see that?
A: Yes.
Q: You believed, as well as were advised, that the article carried the meanings described in paragraph 4.
MR KHOO: Your honour, may I just object? He is going into advice.
MR SINGH: I am happy to rephrase that, to save time.
MR KHOO: Because it is viewed as privileged.
MR SINGH: You believed that the article carried the four meanings which are described at paragraph 4?
A: Yes.
Q: According to this letter at page 358, you gave SPH 24 hours to say that they would apologise, retract, pay damages and costs; is that not right?
A: Yes.
Q: Did you send a similar letter to Ms Susan Long whom you have sued?
A: No, I am afraid I do not know, I don't think so.
Q: Sorry?
A: I am not aware of that.
Q: The answer is 'no', Mr Durai?
A: Yes.
Q: Would it be right to say that you sued Ms Long without giving her an opportunity to deal with your demand?
A: No, I felt that The Straits Times - she was working in The Straits Times. The Straits Times is aware, and she was an employee at The Straits Times, she would be aware of this matter.
Q: So the answer is, you sued her without giving her a demand an an opportunity to a demand; correct?
A: That is so.
Q: A few days later, you and the NKF issued your writ; do you remember that?
A: Yes.
Q: If you could go to this bundle, which is entitled the setting down bundle, it is at tab 1, and it is the writ of summons with statement of claim. Do you have it?
A: Yes.
Q: Could I ask you to turn to tab 1?
A: Yes.
Q: You would have approved of this statement of claim before it was issued?
A: Yes.
Q: And you were satisfied that it represented the correct position?
A: Yes.
Q: Can I ask you to go to paragraph 7, where you have pleaded the meaning of the article?
A: Yes.
Q: Do you notice any change in the position that you have taken between 19th April and 23rd April, which I believe is the date of this statement of claim? Can I help you?
A: Yes.
Q: Could you look at paragraph 7(d), where you plead that the NKF … alternatively you, agreed not to install the gold-plated taps and had them "scaled down to an up-market chrome-plated model'' only because of Mr Tan's protests; do you see that?
A: Yes.
Q: That is new, is it not, because it does not appear in your letter of demand?
A: That is so.
Q: But you just told us a moment ago that when you sent the letter of demand, you honestly believed that the meanings that you described in the demand were what the article bore; is that not right?
A: Yes, but on reflection, I also felt that this was another meaning.
Q: You see, what has happened is that you looked at the article, considered it very carefully, took legal advice and decided that the article meant what your letter of demand claimed it meant. Three days later, you changed your position. Why is that?
A: No, I felt there was another additional imputation to that.
Q: If that implication was so obvious to a reasonable reader, how is it that you did not pick up on it when you sent that demand?
A: That is the way I felt after three days and on the advice of counsel, we put it in.
Q: In other words, what happened is you looked at the article as would any other reader, and then, unlike any other reader, you went back to the article, read it again, perhaps again and again, and searched for deeper meanings which you then included in your statement of claim. Would that be right?
A: Not exactly.
Q: But you just said you considered it again. In other words, you went back to the article?
A: Surely a person reads an article and you have thoughts about it, you ruminate about it and then you write it.
Q: Let me suggest to you what happened. You really do not believe that it bears the meaning at 7(d), which is that you removed the taps only because the contractors protested. It has come in as an afterthought to spice up the claim that you have made.
A: I disagree with you.
Q: In fact, looking at the words which you are suing on, there is nothing in that article which suggests that you removed the taps on account of the contractor's protests?
A: I disagree with you on that.
Q: You know that there was nothing to suggest that implication because your own letter of demand does not even say that it was done because of the protests; do you agree?
A: No, I disagree with that.
Q: I will show you, Mr Durai, in the course of this morning, that this is not the only change of position that has occurred in this case, in the case in which you and NKF are running against SPH and Ms Long. You are aware, are you not, that the defendants' case is that the article is about controversy and transparency?
A: Yes.
Q: And you disagree with that; right?
A: Yes.
Q: In fact, what the defendants are seeking to do in this action by way of their justification defence is to show that you and the NKF or rather the NKF under your management has not come clean on the NKF's financial affairs on which the public has a right to know. MR KHOO: Your Honour, may I object to this question? "Has not come clean'' … is that the same as "non-transparency''? Transparency and controversy have somehow been translated into "has not come clean''. It is something different.
MR SINGH: I wish to avoid controversy between my learned friend and me, and I will be as transparent as possible with the witness, so I will rephase the question.
MR KHOO: Thank you.
MR SINGH: You are aware, are you not, that it is the defendants' case that NKF, under your management, has been less than transparent about its financial affairs? You are aware?
A: Yes.
Q: It is also the defendants' case that you have … when I say "you'', I mean you and NKF, because according to your evidence, you actually share the same reputation … have blocked this information from the public.
A: That is not true.
Q: That is our case.
A: All the best to you.
Q: You know that that is our case; correct?
A: Yes.
Q: You remember reading our defence?
A: Yes.
Q: You would have seen from that defence that the defendants are relying on the entire article, not just that words that you have selected.
A: That is so.
Q: In the defence, we also said that we will seek to justify the meaning by reference to a huge range of particulars; do you remember that?
A: That is so.
Q: Is it not right that when you saw that, you embarked on a strategy to try and prevent that information coming out, even in this court?
A: That is not so.
Q: In other words, to be fair to you, so that you understand what I am saying, apart from being less than transparent with the public, you set out to be less than transparent with this court?
A: That is not so.
Q: It is not, right? Could you pick up your evidence, please, your affidavit of evidence? Would you look at paragraph 8 at page 6?
A: Yes.
Q: Where you say: "I would add that the NKF would not have commenced this action had the article's opening paragraphs had not contained the offending words. The first six paragraphs of the article had no connection or relevance with the main article.'' I am concentrating on the second sentence there, and I read it again: "The first six paragraphs of the article had no connection or relevance with the main article.'' Did you honestly believe what you said?
A: Yes.
Q: Is that your and NKF's honest position?
A: Yes.
Q: And it has always been your honest position?
A: Yes.
Q: Could you keep that page open and again pick up the setting down bundle? Could you go to the statement of claim at tab 1, paragraph 7?