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.
Transcript
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?
A: Yes.
Q: At paragraph 7 you say: "The said words are defamatory of the plaintiffs and have caused grave injury and damage to the plaintiffs. In their natural and ordinary meaning and/or the inference which can be reasonably drawn from them, the said words meant and were understood to mean...'' Then you set out the meanings; do you see that?
A: Yes.
Q: I would like you to look at paragraph 8 of your own claim, which says: "Further or alternatively the said words bore or were understood to bear the meanings pleaded above by way of innuendo.'' Now I read these words of yours: "The plaintiffs will refer to the said article for its full meaning and effect.'' Could you explain to this court how it is that when you sued, you considered, and said that the entire article was relevant, but when you came to file your affidavit of evidence, you changed your position completely, and said that the rest of the article is completely irrelevant? Can you explain that?
A: No, we would not have sued if not for the six paragraphs. When you sue, you have to look at it in the context of the entire article, because the other paragraphs are there. You just cannot sue because … you are suing for the meaning of the six paragraphs. But the other paragraphs are there in the particular article.
Q: Let us not waste time. Let me go back to paragraph 8 of your affidavit of evidence-in-chief.
A: Yes.
Q: Let me read again what you said, so that there is no misunderstanding. I remind you that this is your evidence. The second sentence of paragraph 8 reads: "The first six paragraphs of the article had no connection or relevance with the main article.'' In other words, you are saying the first six paragraphs have nothing to do with the rest of the article, and the rest of the article has nothing to do with the first six paragraphs. But that is a position which is completely different from paragraph 8 of your statement of claim, where you say to understand the first six paragraphs, you need to look at the entire article.
A: By way of innuendo.
Q: It does not matter whether it is by way of innuendo, false truth or ordinary meaning; this is your claim which remains unamended. Is it not inconsistent … "yes'' or "no''?
A: No.
Q: No? On the one hand, you say we should look at the entire article because it is relevant for meaning; on the other hand, you say we should not look at the entire article because it is irrelevant for meaning, and the two are not inconsistent.
A: No, the point is the six paragraphs are the paragraphs we complain of to this court because by itself it is defamatory.
Q: You see, what has happened, Mr Durai, is really very simple. You thought that you could control the way this action would be run by picking on certain meanings in your statement of claim. Then when you saw that the defendants were relying on the entire article and were going to bring into issue matters concerning your air travel, the manner in which you have represented your financials, the salaries that senior staff including you get out of public donations, you panicked and changed your position in your evidence and said, "The rest of the article is now irrelevant''; is that not true?
A: I disagree with you. We report to the regulatory authorities, and we were not worried about what The Straits Times finds out.
Q: We will come to whether you were worried about what the media knows and needs to know in a moment. But can I just take it that your position on the record is that there is no contradiction whatsoever between the two paragraphs that I have shown you?
A: What is your question?
Q: That there is no contradiction between what you have said in paragraph 8 of your statement of claim and what you say in paragraph 8 of your evidence-in-chief?
A: Yes.
Q: Correct?
A: Yes.
Q: Thank you very much. You are a trained lawyer, are you not?
A: Yes.
Q: You have been in practice for how many years?
A: More than 10 years.
Q: In the 10 years that you have practised, did you dabble in libel law?
A: No.
Q: Not at all?
A: Not very much.
Q: So you did, but not very much?
A: A miniscule amount.
Q: You are aware, are you not, both as a lawyer and as a result of your many successful libel claims against a number of people … and we will come back to that in a moment … the difference between specific and general charges?
A: I am afraid not.
Q: You are not? Do you not know what the relevance of the word "specific'' is in the context of meaning?
A: Yes.
Q: You do; right? Therefore, you also know the relevance of the word "general'' in the context of meaning?
A: I cannot … I am not very conversant with that.
Q: In other words, if I said that A stole money on 5th July from B, that is a specific charge. Whereas if I said that A is a thief, then it is a general charge. You follow that, do you not?
A: Not exactly.
Q: Sorry?
A: Not exactly.
Q: Would I be right to say, to be fair to you, that the words "specific'' and "general'' really are not words that have a material impact on you in this case?
A: Yes.
Q: If that is right, I would like you to explain paragraph 3 of your affidavit, where you say: "It is the plaintiffs' case that there words are highly defamatory of both the charity and myself. The passages make a very specific allegation against the charity and myself in relation to what is specifically described as the new headquarters at Kim Keat Road in 1995. Any reasonable reader of the words would conclude...'' Then you go and set out the conclusion there. It seems to me odd that for someone who does not have the word "specific'' at the forefront of his mind, that you would use it twice in that paragraph 3. Would you like to comment on that?
A: Use what twice?
Q: The word "specific''.
A: Yes, specifically described, yes.
Q: There is a reason you use the word "specific'', is there not?
A: Yes, it pertains to a particular issue.
Q: Thank you very much. As opposed to general?
A: Yes.
Q: Which pertains to a general issue?
A: Yes.
Q: Now you understand that?
A: Yes.
Q: Have you not changed your position yet again?
A: How?
Q: In relation to meaning. Could you keep paragraph 3 open in front of you?
A: Yes.
Q: Let me just read it for you so there is no doubt as to what your own evidence is. It says at paragraph 3 in the last sentence above (a): "Any reasonable reader of the words would conclude that (a) The NKF and I were guilty of misusing funds to splurge on my office suite on the 12th floor of a $21 million building by installing a glass-panelled shower, a pricey German toilet and a gold-plated tap that alone cost at least $1,000, (b) I was shamed by the loud protestations of the alleged contractor into scaling down that alleged gold-plated tap to a chrome-plated model, and (c) That the NKF had avoided providing details or comments on this alleged misuse of funds by using the pretext that it was not provided with details of the contractor involved.'' Mr Durai, have you not shifted on meaning yet again?
A: Why?
Q: I am giving you one more chance to answer this question. You can say "yes'' or "no'', but if you want to say why again, please do so. Have you not again shifted on meaning?
A: No.
Q: Leave this open, go to your statement of claim at the setting down bundle, paragraph 7, page 5, tab 1. There, after you said you reconsidered the matter, I think you used the word "ruminate''. Having ruminated on the matter, you then pleaded at paragraph 7 the meaning that the article, you say, bore; right? Is that meaning consistent with the meaning in paragraph 3 of your evidence-in-chief?
A: Yes.
Q: Could you tell us where is 7(b) of your statement of claim in paragraph 3 of your affidavit.
A: When I prepared the evidence-in-chief...
Q: Sorry, let me put it the other way. Would you agree with me that 7(b) has disappeared from your paragraph 3?
A: No, it is not there.
Q: Thank you very much. You see, what has happened is a case which constantly shifts, is it not, Mr Durai? First, in your letter of demand, there are a range of meanings which the article is supposed to carry. Then in your statement of claim, that meaning is added to, and then when you do file your evidence-in-chief, just one month before the trial, again there is another change as to what the article mean. Why these constant shifts if you actually honestly believe that the article meant
something defamatory, what we do not know yet, because of your shifts, but please tell us.
A: It is the same. The article basically meant that we splurged, we misused funds, we got a contractor to fix the gold-plated taps. It comes to the same thing, it is defamatory. It is expressed in different ways, but the gist of it, it is defamatory.
Q: So you are saying to this court, are you, on oath, that the letter of demand, your statement of claim and paragraph 3 of your evidence-in-chief are all the same?
A: It carries the same central meaning.
Q: No, answer my question, because you said...
A: It's not … it is expressed differently, but it means the same, that it is defamatory of the NKF and myself personally.
Q: You know, do you not, in your heart, that it is not the same, that you have consciously and deliberately moved a paragraph out?
A: That is not so.
Q: It is not?
A: No.
Q: Let me show you. If you go to paragraph 7 of your statement of claim, you will see that the meaning you allege at paragraph 7(b) is that, according to you, the article alleged that the 1st plaintiff, i.e. NKF, mismanaged the funds that it collected from donors; right?
A: Yes.
Q: That is a general charge, is it not?
A: Yes, it is.
Q: You saw from our defence that we said that even if this is what the article meant, we will justify this general charge?
A: Yes.
Q: You have dropped that from paragraph 3 of your evidence. You have now gone to specific charges only; is that not right?
A: But we have addressed the other charges in the Affidavit Evidence-in-Chief.
Q: Answer my question. In paragraph 3, where you seek to set out what you say any reasonable reader would conclude, you have dropped the allegation of the general charge of mismanagement of funds; correct?
A: That may be so.
Q: That may be or is?
A: That is so.
Q: The reason you did that is because you are now trying to shift the focus away from the NKF's mismanagement of funds and are trying to persuade the court that we only need to concern ourselves with the specific charge of the tap; right?
A: That is the case.
Q: Thank you very much. The reason you are doing that is because you are concerned about the justification in relation to the manner in which NKF has dealt with donations?
A: That is not so.
Q: Look at paragraph 3. Now with the benefit of the exchange that we have had, you will see why it becomes apparent that you used the word "specific'' twice. Paragraph 3: "It is the plaintiffs' case that there words are highly defamatory of both the charity and myself. The passages make a very specific allegation...'' Do you see those choice words?
A: Yes.
Q: "...against the charity and myself in relation to what is specifically described as the new headquarters at Kim Keat Road in 1995. Any reasonable reader of the words would conclude...'' Then you go and talk about meanings which have nothing to do with mismanagement. I put it to you, sir, that you have again shifted meaning not because of any conviction of what the meaning of the article is, but for tactical reasons.
A: That is not so.
Q: That is not the end of the shifts, is it, Mr Durai? Because you would agree with me that even on the specific charges, paragraph 3 of your affidavit of evidence is inconsistent with your statement of claim; would you not agree with that?
A: No.
Q: You would not? All right. Since you say "no'', we have to spend time doing this. Please go back to your statement of claim at tab 1 of the setting down bundle, page 5.
A: Yes.
Q: Do you have it?
A: Yes.
Q: Now that you have had the benefit of reading paragraph 7 of the statement of claim and paragraph 3 of your affidavit, are the meanings the same, even in relation to the specific charges on the fittings and installations?
A: Yes.
Q: They are?
A: Yes.
Q: Let us start with paragraph 7 of your statement of claim. According to you, having considered or reconsidered the matter and ruminated over the article, you
felt at paragraph 7 that the article meant at 7(a) that NKF had misused the funds collected from its donors and splurged it on the office of its CEO, the 2nd plaintiff, on a glass-panelled shower, a pricey German toilet bowl and a gold-plated tap that cost at least $1,000. Is there any reference in that meaning to the $21 million building or to the floor on which the office suite was?
A: No.
Q: Both in your letter of demand and in your statement of claim, having had the benefit of legal advice and deep consideration, you did not consider that a reasonable reader would even have any regard to the $21 million building or the 12th floor; correct?
A: No.
Q: Sorry, are you agreeing or disagreeing?
A: I disagree with you.
Q: You disagree?
A: Yes.
Q: If it is your evidence that the reader would have walked away from the article with the impression that it is a $21 million building, why is that missing from paragraph 7 of your statement of claim or your letter of demand?
A: This is explained in paragraph 11.
Q: Paragraph 11 of?
A: Of the statement of claim.
Q: Right. Paragraph 11 has nothing to do with meaning; is that not right?
A: No, it tells you the position, the truth.
Q: That is right. What paragraph 11 says, so that we put it in context, is: "The plaintiffs will further rely on the fact that the words were made with reckless disregard of the truth or the falsity as aggravating the defamation. In support thereof, the plaintiffs will rely on the fact that (a) The 1st plaintiff's building...was not even constructed in 1995 when the said Mr Tan referred to in the said words allegedly "was hired to install...(the) fittings...in 1995'...'' Right?
A: Yes.
Q: Mr Durai, as a lawyer, you mut know that what you are saying in this paragraph is that the defendants were reckless in the way they published the words; correct?
A: Yes.
Q: And they were reckless, according to you, because there was … in 1995 the $21 million building had not been constructed?
A: True.
Q: Right.
A: Yes.
Q: We know, do we not, that there is nothing in the article which talks about when that building was constructed; right?
A: Which building? The $21 million?
Q: Yes.
A: Yes.
Q: What you are saying is, look, what the newspapers did not tell the world, i.e. did not appear in the article, was that in 1995, there was no such $21 million building; right?
A: No. And the newspaper gave the impression to the public that this particular tap was installed in the $21 million building.
Q: You see, Mr Durai, your reference to paragraph 11 has nothing to do with what your own case is about what a reader would take away from the article. Do you agree or disagree?
A: No.
Q: According to your letter of demand and your statement of claim, you felt that the reader would take away from the article the impression of the installation of expensive fittings, in the terms used in paragraph 7(a), (b), (c), (d) and (e); right?
A: In the $21 million building.
Q: There is no reference...
A: The 12-storey building. That was what the article said.
Q: You see, Mr Durai, your own case is that it was not what a reasonable reader would remember.
A: No.
Q: The $21 million or the 12th floor?
A: That is crucial. Our case is that.
Q: If it is crucial, then why is it missing from paragraph 7?
A: It is in paragraph 11.
Q: Let us go to paragraph 3 of your affidavit. Now you say: "Any reasonable reader of the words would conclude that (a) The NKF and I were guilty of misusing funds to splurge on my office suite on the 12th floor of a $21 million building by installing a glass-panelled shower...'' Let me suggest to you why you have now changed your meaning for the fourth time. You thought that SPH would have problems proving their case. SPH has produced a contractor who will come to court to testify that there was a gold tap. SPH has, after a lot of difficulty, obtained discovery of documents from
the NKF to suggest that a very expensive tap was installed. I know you take a different view, but $990 to me for a tap is very expensive.
MR KHOO: Your Honour, my learned friend insists on peppering his questions with words "after great difficulty''. These documents were disclosed by us voluntarily in the course of discovery. To put it to this witness that he had obtained these documents after great difficulty is a misstatement, to say the least.
MR SINGH: I stand by what I say. I will demonstrate, your Honour, that the invoice in relation to this or what I would think is a very expensive tap, was not disclosed at all in the original list of documents filed by the NKF, although that is the central issue according to the plaintiffs in this claim. We then had to write a letter to ask for further discovery, and when we asked for that further discovery, NKF then came up with this invoice. But I will also show your Honour in due course that when we applied for further and better particulars of the installation in that bathroom, the further and better particulars were of the replaced fittings and not the original ones. We will come to that. Mr Durai, the reason you changed your position, I think I said for the fourth time, is this. You originally thought that there is no way that SPH would produce the evidence. When you saw that SPH actually had the evidence, and that in any event, there is an invoice of the value of the taps for that bathroom of yours, you decided to change the meaning and now emphasise the $21 million building and the 12th floor, is that not right?
A: That is not true. First of all, it is not my toilet and it is not an expensive tap. It was not a tap. It was a mixer. And we willingly gave the documents.
Q: Just to get your position on the record, a $990 tap is not in your view an expensive one?
A: It is not a tap. It is a mixer together with a shower.
Q: And it is not expensive?
A: We did not consider it expensive.
MR KHOO: I hope my learned friend, I do not like to interrupt, but are we talking of the same thing? There were two installations. The article refers to a wash basin tap, a mixer, which does not cost $990, but $660, subject to a 10 per cent discount.
MR SINGH: Thank you, Mr Khoo. I am glad my learned friend talks about the article saying wash basin mixer. But on the plaintiffs' own case, as far as meaning goes, it does not matter whether it was a wash basin, shower or any other mixer, meaning is a gold-plated tap that cost at least $1,000.
MR KHOO: Sorry, there are two installations. Is he referring to the correct one which the article refers to or is he referring to something else? If it is something else, then that is not a wash basin tap. It is a mixer, shower mixer with a shower bar. That totally costs $990, subject to a 10 per cent discount.
MR SINGH: Right. Your Honour, I am just flummoxed that we are into this detail. I would have thought that if I was going to buy a tap, or wherever, based on public donation from people who earn $1,000 a month, it would not matter whether it was $600 or $900. I would be very careful with how I spent that money. But Mr Durai, the reason I put to you again is that you have now changed your meaning in paragraph 3 to shift the focus to the $21 million building and the 12th floor because you know you have problems on the value of the fittings.
A: That is not true. From the very first day itself, the article was quite clear. It referred to a $21 million building, the 12th floor, in the CEO's suite.
Q: Mr Durai, is it not true that even on your own case, the issue is not the $21 million building, it is not the 12th floor, it not the gold-plated taps. Even on your own case, it is simply that expensive fittings were installed, do you agree?
A: No.
Q: You do not?
A: Gold-plated tap fixed on the $21 million building. The 12th floor storey unit.
Q: Do you remember that after the article appeared the NKF issued an e-mail to all its donors?
A: True. Yes, we did.
Q: The purpose of that e-mail was to draw attention to the article and to rebut it; correct?
A: Yes.
Q: The purpose of that e-mail was also to defend your reputation against the attack you say had been launched against you; right?
A: Yes.
Q: So when that e-mail was sent, you wanted to explain to your donors who had or had not read that article, what the article was about and what you were going to do, i.e. sue SPH; right?
A: Yes.
Q: Let me show you that e-mail, which for some reason, you have not given in discovery. Your Honour, this is an e-mail dated 27th April 2004, which was not given in discovery, but is highly relevant to this case, as I will show. This is an example of one of the thousands of e-mails that you sent; right?
A: I do not get you.
Q: This is from NKF to Madam Phua. There would be thousands more that went in the same format to your donors; right?
A: Yes.
Q: Thank you.
A: Your Honour, can we jut mark this as D1?
COURT: Yes.
MR SINGH: This is dated 27th April, about eight days after the article appeared; right?
A: Yes.
Q: It reads: "You may have read in the newspapers recently about the NKF's reserves. I would like to bring to your attention what Minister Lim Hng Kiang...said...''
Then if you would go with me to the last paragraph of that page, which says: "As you are a donor of the NKF, I would also like to bring to your attention to an article, "The NKF: Controversially ahead of its time?' … this is the article in question … that appeared in The Straits Times on April 19th, 2004, in which its senior writer, Ms Susan Long, states that the NKF used expensive toilet fittings in the office of its CEO. Madam Phua, this is grossly untrue. Our lawyers have written to SPH...for a retraction of the statement and an apology, failing which we will pursue legal action against them. We deem it necessary to pursue this case because unfounded allegations not put right will gain currency and be perceived as true if unchallenged. The NKF, like other institutions, relies heavily on its reputation as the bedrock of its long-term survival and any assault on its character by baseless accusations will erode its trustworthiness, to the detriment of its patients. Please be asured that we will do our best to protect and preserve this institution...'' Is there a reason you did not give discovery of this document, Mr Durai?
A: Nobody asked for it.
Q: Sorry?
A: I do not know. I am not aware of this. Nobody asked, requested for this document.
Q: Do you not consider this document to be highly relevant?
A: I do not think so.
Q: You do not? All right. Let us go back to the top of that second page: "...that appeared in The Straits Times on April 19th, 2004, in which its senior writer, Ms Susan Long, states that the NKF used expensive toilet fittings in the office of its CEO.'' That, sir, is what you were telling the whole world the article meant?
A: No. We did not want to repeat the libel, so we did not state the actual … what the report in the papers were. We wanted to be as mild as possible to The Straits Times by not repeating the libel.
Q: You wanted to be as mild as possible to The Straits Times so that you would not repeat the libel?
A: I would not want to repeat the libel.
Q: But if you read the last sentence of the first paragraph: "Madam Phua, this is grossly untrue.''
A: Yes.
Q: That is mild?
A: It is untrue.
Q: No, wait a minute. You said you wanted to be as mild as possible to The Straits Times.
A: On the allegation...
Q: One second. You then say of The Straits Times that they have published something that is grossly untrue. Is that mild?
A: No, I did not want to repeat the libel.
Q: You are changing your evidence?
A: No, I am saying the same thing. I did not want to repeat the libel, that we had fixed a gold-plated tap and a pricey toilet bowl, so we just summed it up by saying expensive fittings and we...
Q: Thank you. You summed it up. On your own summation of what the article really means, in your own view, is that expensive toilet fittings were used in the office of its CEO?
A: Yes, we wrote it that way.
Q: In other words, this e-mail encapsulates your own belief of what the article meant?
A: That is not true.
Q: That is why you have withheld this document from discovery, knowing that it would undermine your pleaded case on gold taps, toilets and $21 million buildings?
A: That is not true, because if you read the article, there are several things in the article which are highly defamatory, which we did not repeat here.
Q: You see, then you go on to say: "Madam Phua, this is grossly untrue.'' In other words, what is untrue is that there were expensive fittings?
A: The entire allegations were untrue in the papers.
Q: No, wait a minute. Listen to me. You said you did not want to repeat the libel. Let us take that at face value. You say that the article states that expensive toilet fittings had been used. "...this is grossly untrue.'' What is this?
A: The allegations made in the papers were untrue.
Q: Mr Durai, come on...
A: Because they would have read it, I referred...
Q: I will give you another chance.
A: I referred them to the article in the papers.
Q: Are you saying that in case some people had not read the article, you wanted them to go and read it?
A: In a way, if someone refers them to the article, they probably would know, because we have two-over-million donors in Singapore.
Q: You would say at least two-over-million e-mails such as this went out?
A: No.
Q: How many would have gone out?
A: About 100,000.
Q: You were bringing this allegedly defamatory imputation to the attention of many people who might not even have read the article; correct?
A: It is not defamatory. The imputation of The Straits Times, at this point, by writing this, we were just telling our donors the position.
Q: Answer my question. You were therefore bringing to the attention of many people who had not read the article which you say was defamatory of the NKF?
A: Yes.
Q: Thank you. In this, you tell them that all the article means is that expensive fittings were used?
A: No, it is one of the...in a summation we said that.
Q: Thank you. Because this case is about how a reader sums up the article. You have done the job for your 100,000 donors/readers?
A: As I said, we did not write the full contents of the allegation made against us in this e-mail. We just wanted to stop the haemorrhaging of funds dropping in the NKF, so we just alerted them that it is not true.
Q: You see, Mr Durai, you were very careful and considered in this e-mail. It is even signed off by you; right?
A: We wrote it, yes. I wrote it.
Q: Answer my question.
A: Yes.
Q: You gave it a lot of thought?
A: Yes.
Q: You were concerned that there would be a haemorrhage, according to you; right?
A: Yes.
Q: So you wanted to be very careful about how you communicated the contents of your e-mail; right?
A: No, I wanted to inform our donors about the position we took regarding this matter.
Q: Right. You wanted to nail the lie?
A: Yes.
Q: In other words, you wanted to expose SPH for its lie; right?
A: Yes.
Q: Therefore, you had to identify the lie?
A: Yes.
Q: And the lie that you identify is expensive fittings?
A: Not necessarily so.
Q: You see, Mr Durai, what has happened is your position on meaning at best is set out in your own summary of the article for the benefit of your donors.
A: I disagree with you.
Q: Would you at least agree with me that the word "expensive'' there is a matter of comment, a view?
A: Yes.
Q: Therefore, if this court finds that at best, all the article meant is that expensive fittings were used, that is a matter of comment; right?
A: A matter of fact.
Q: You just said...
A: Because the allegation in the article, in the newspaper, was that a gold-plated tap was installed, a tap which only Bill Gates would install in his house was installed. That was the allegation in the papers. That is...
Q: Let me repeat my question...
A: That is why we have come to this court, for redress.
Q: Let me remind you of what you said. Just a few seconds ago, I asked you: "Question: Would you at least agree with me that the word "expensive' there is a matter of comment, a view? Answer: Yes.'' Then just go back a few more minutes, where I said: "Question: ...$990 is not expensive...? Answer: In my opinion, no.'' Would you agree with me, notwithstanding your change of position, that if that is all the article means … assume with me, if that is all the article meant … then this is only a matter of opinion?
A: No. The article meant specifically that I...the NKF wanted to install a gold tap, a gold-plated tap, a tap which Bill Gates would install in his own house.
Q: I am just asking you to please focus on the e-mail and assume with me that if that is all … this is an assumption … the article meant, then that is a matter of comment?
A: No, the article did not meant that, according to me. I wrote this to my donors, just to alert them, to tell them of such an article and just to botch the haemorrhaging of the funds that was going on at the point of time.
Q: Humour me, please. For the third time, if, notwithstanding your position and contrary to your position, the article only meant that expensive fittings were used, that is comment?
A: To me, at that point of time, expensive … when I wrote to my donors, I felt it was a question of fact.
Q: I am asking you now.
A: Fact.
Q: But you just earlier said it was comment.
A: No, I took your sentence … your questioning a different way.
Q: You did not. There was nothing ambiguous about it. It was completely transparent. I asked you whether the word "expensive' used in that context was comment. You said "yes''.
A: No, it is a fact, because we were writing to our donors about what has been written in the newspapers, so it is a question of fact.
Q: You see, Mr Durai, I should be very fair and honest and upfront with you. The way you answer questions here will be the subject of comment by me at the end of the day. It will be my suggestion to this honourable court that the way you answer questions here is no different from the way you answer questions from the public and the media about the NKF. In other words, you shift from one position to another and try, despite your utmost best, to avoid dealing with inconsistencies. So you still maintain, notwithstanding your earlier answers, that this is fact, not comment?
A: It is a fact.
Q: Sorry?
A: Fact.
Q: Thank you very much. I just want to remind you that the e-mail is dated 27th April; right?
A: Yes.
Q: In other words, it is a contemporaneous document setting out your view of meaning; do you agree or disagree?
A: I do not get your question.
Q: Sorry?
A: It is a contemporaneous document, a document that came into existence contemporaneously with the article?
A: Subsequent to the article.
Q: Yes, but at about that time; right?
A: Yes.
Q: Setting out your view on its meaning, or your view of the sting of the article.
A: The sting of the article was far more serious than what I wrote.
Q: Yes, but did it not set out your view of the string of the article?
A: The article...
Q: No, did it or did it not?
A: No, it did not.
Q: Here you were, according to you, concerned that the public might think that there were gold taps, which according to you is false, and you had to nail that lie. But you made no mention of it; is that correct?
A: Yes.
Q: But that is what...
A: I just wanted to tell them that what had been written was untrue.
Q: That is not what you said, you see, Mr Durai. What you said was that you may have read this article alleging … and then you set out the sting and then you demolish that sting by saying it is untrue. Do you agree?
A: No.
Q: Could I just ask you so that we get this out of the way, is there anything in your affidavit of evidence in relation to the toilet bowl and the price of it?
A: There is, I believe, a Monte Carlo toilet bowl.
Q: Can I just ask you, so we save time, do you accept that there was a toilet bowl installed, a Monte Carlo, I think, $1,100?
A: Yes.
Q: So that we have your position on the record, in your view, is that expensive or not?
A: That is relative. I am not an expert in toilet fittings to comment on that.
Q: But you were expert enough to comment on the taps, to say it is not expensive. So please, answer the question. In your view...
A: No, I would not think it is expensive.
Q: It is not. Right. Yet, it was removed?
A: No, it was not removed.
Q: It was not?
A: No.
Q: All right. Fine. If that is your position, then could you tell us, for the record, what installations or fittings were removed then?
A: The wash...the wash basin mixer and the shower mixer.
Q: Only two?
A: Only two.
Q: Nothing else? You are very sure?
A: Yes. I gave instructions for those two to be removed.
Q: Okay.
A: In 1994.
Q: Right. Thank you. We will come...
A: In the two-storey building.
Q: All right. In the two-storey building, a temporary two-storey building.
A: It is not temporary.
Q: I see. All right. Mr Durai, could I ask you to go to the opening statement that has been filed on your behalf. Perhaps your lawyer will give you a copy of that. Could you go to paragraph 10?
A: Yes.
Q: Did you approve this opening?
A: Yes.
Q: So you were satisfied that it is correct.
A: Yes.
Q: Could you look at the portion in bold in the middle of that paragraph which reads: "In short...'' I should go back...
A: The paragraph please.
Q: Paragraph 9, page 9, which says or under the heading, "The Dispute on Meaning'': "Of critical importance in this case is the meaning borne by the words complained of.'' Then you refer to the meanings at 9(a) to (e); do you see that? Have you got the plaintiffs' opening?
A: Yes.
Q: Page 9.
A: Yes.
Q: What you do is you set out the meaning there and then you go over the page at page 10, and you say: "In short, the essence of the plaintiffs' case on meaning is that the words complained of made an allegation of deliberate and dishonest misuse of supporters' donations.'' Do you see that? Would you agree with me that this is
the first time you are claiming that the meaning … sorry, this is not the first time; your affidavit was the first time, but nowhere in your letter of demand, statement of claim did you allege that the words meant that you were behaving dishonestly.
A: Yes.
Q: Why is this introduced now?
A: It is an afterthought.
Q: It is an afterthought. Thank you very much. In other words,...
A: I do not get you. What were you saying, please?
Q: Do not worry, we will just move on. In other words, as I have tried to explain in the course of this morning, the meaning continue to shift, does it not?
A: No.
Q: And you have now elevated the meaning as an afterthought to deliberate and dishonest misuse because you are concerned that the defendants may well be able to show mismanagement; is that not right?
A: That is not so.
Q: You see, what has happened is, again, consistently with what I have shown this court and you, I hope, is that every time you plead something and you face an obstacle, you shift that meaning to try tactically to change the case to improve your prospects.
A: That is not so. The truth is the truth.
A: The truth is the truth?
A: The truth is we never fixed a gold-plated tap in our toilet on the second storey in 1994 or on the $21 million building on the 12th floor. That is the truth.
Q: Even right up to a few days ago when you put in your opening statement, you were still introducing afterthoughts; correct?
A: Whatever was written in the papers has different meanings.
Q: Thank you. And they are different meanings because as you yourself used the word, it is an afterthought; right?
A: Right.
Q: Thank you very much. Your counsel earlier stood up and protested that I had misstated the position in relation to whether you and NKF had voluntarily given information to this court and to us about those fittings; do you remember that?
A: Yes.
Q: Can I invite you to go to the setting down bundle? Do you have it?
A: Volume?
Q: I think your lawyer will assist you. That is not the bundle.
A: Yes.
Q: If you could got to tab 5. I do not know whether we have the same document at tab 5. It is entitled "Further and better particulars of the reply''; do you have that?
A: Yes.
Q: You will remember that after NKF and you filed a reply, we sought further and better particulars of that reply?
A: Yes.
Q: Those questions that were the subject of our requests would have been drawn to your attention by your lawyers; right?
A: Yes.
Q: For you to look at and give answers to?
A: Yes.
Q: The object of those questions and of the exercise was for you to come clean, be honest with those answers; correct?
A: Yes.
Q: Were you?
A: Yes.
Q: You were aware that this case turned, according to you, at that stage, on the fittings in that bathroom; right?
A: Yes.
Q: And the cost of those fittings was also relevant?
A: Yes.
Q: Can I ask you to turn to page 12 of that document, under paragraph 11(2)(b) of the reply, the reply had pleaded that in respect of paragraph (b)...
A: What page?
Q: Page 12.
A: Yes, okay.
Q: It starts with question number 18 at the top.
A: Yes.
Q: I am going to the one below that, which is entitled "Under paragraph 11(2)(b) of the reply''. Do you see that? A question was asked there or rather two questions were asked: "For the fittings that were installed in the said private bathroom, (i) identify each and every fitting that was installed; (ii) identify the cost of each and every fitting that was installed.'' Then you gave the answers.
A: Yes.
Q: Do you, in those answers, make any reference to the original fittings that were installed?
A: No.
Q: Should you not have?
A: Because the question was asked about what was installed in that particular toilet, what was there ultimately. That is the way we viewed the question.
Q: Mr Durai, let me read the question. Please be careful before you answer. This is what is pleaed in your reply.
A: Yes.
Q: "It is admitted that fittings were installed in the said private bathroom but the plaintiffs (i.e. you and NKF) deny that the fittings can properly or fairly be described as "expensive'.'
A: Yes.
Q: You knew, as you earlier accepted, that we were talking about the fittings in issue; right?
A: Yes.
Q: We then asked you: "19. For the fittings that were installed in the said private bathroom, (i) identify each and every fitting that was installed; (ii) identify the cost of each and every fitting that was installed.'' Your answer: "The fittings that were installed and the costs of the same were...'' Then you give us five fittings, but you do not talk about the original fittings that were installed.
A: Yes, because the question was what was installed. Those were replaced.
Q: Mr Durai, were the original fittings installed?
A: No. The original fittings were removed.
Q: Let us try this. It is not an English lesson, so please do not assume that I am being condescending. Were the original fittings installed?
A: Yes.
Q: Were the original fittings the issue in this action?
A: I would not know. At that point of time, I did not know then, because you knwo the question was on this specifically, on the fittings at that point in time. If you had asked a question, what about the original fittings, we would have answered it.
Q: You did not know that that was an issue at that point of time. This further and better particulars came after your statement of claim, after the defence and after the reply when it was clear that the fittings that were installed were in issue; right?
A: Yes.
Q: And the fittings that were in issue were the original ones which we had described as gold-plated, and you had denied them; right?
A: Insofar as I was concerned, that was the way I looked at the question.
Q: My question now...
MR KHOO: Again, forgive me for interrupting, your Honour. When Mr Singh asks this question, he must make reference to the question being asked. The question being asked at that time was: "Of paragraph 18(b) of the defence, in respect of paragraph (b)(ii) is it admitted that fittings were installed in the said private bathroom but the plaintiffs deny that the fittings were "expensive'.'' If you look at 18(b)(ii), the original pleading they referred to what was installed, and then they amended that to add in a new (iii), the removal of expensive fittings.
MR SINGH: Your Honour, Mr Michael Khoo can try as much as he wants to help the witness, but I would invite the court, now that he had done me a favour, to also look at the defence. Can I ask your Honour to go to tab 2? We appear to be in two different cases. Under the original defence, paragraph 18, page 33, the present 22, it comes after the word "Justification''; in other words, we are going to justify the article. It says: "The words were true in substance and in fact. Particulars of justification. (b) The plaintiffs have used funds donated to the 1st plaintiff on: (1) the construction and/or renovation of a private office suite with an attached bathroom for the use of the 2nd plaintiff in the 1st plaintiff's offices in the two-storey block in Kim Keat Road; (2) installation of expensive fittings in the said private bathroom.'' So the question was asked in relation to (2), your Honour. There was a reply to 18(2), and if your Honour can go to the reply at tab 3, page 8, this is the relevant reply in relation to which particulars were sought. It reads: "In respect of paragraph 22(b)(ii) it is admitted that fittings were installed in the said private bathroom but the plaintiffs deny that the fittings can properly or fairly be described as "expensive'. In any event, the plaintiffs deny that any fittings installed in the private bathroom were of the description stated in the words complained of and contained in the article written and published by the defendants.'' I respectfully submit that nobody can be in any doubt at that stage as to what these pleadings are about, and which fittings are being talked about. Then at tab 5, the question at page 12 is asked about these fittings. Mr Durai and the NKF were asked to identify each and every fitting that was installed, identify the cost of each and every fitting that was installed, and is it not correct, Mr Durai, that you deliberately suppressed the information in that answer?
A: There was no need to do so.
Q: You suppressed that information because you were concerned that the cost that we now know of would undermine your case.
A: I disagree with you. We do not suppress any evidence at all. The NKF does not function on this basis.
Q: Let us about about transparency. Forget transparency outside, let us talk about transparency in this court, which is the process of discovery and particulars seeks to achieve. Here everyone knows that we are talking about these fittings that are in issue. We asked you what these fittings were that were installed, and you tell us
about the replaced fittings and not the original ones, and that you tell the court is an honest answer.
A: The way I looked at it, what were the fittings that were installed? If you asked me a question, what was originally installed, my answer would have been different. That is the way we answered it.
Q: Were the fittings that are in issue installed? "Yes'' or "no''?
A: Previously, yes.
Q: Does not the question ask you to identify all fittings that were installed?
A: No. The question is...
Q: Read it loud.
A: That were installed in the said private bathroom, yes. The fittings that were installed...
Q: Does not the question ask you to identify all fittings that were installed?
A: No. Installed at that particular point of time. "What did you have in the toilet at the point of time?'' And that is what we answered, because this was what we had.
Q: Mr Durai, again, I respectfully...
A: This is the honest truth.
Q: ...suggest that you, true to form, you have played fast and loose with your answers.
A: No. This is the honest truth. This is the way I looked at it and this is the way we answered it and there was no need for us to suppress any evidence.
Q: You have tried to suppress this information in your answers.
A: No.
Q: You have tried to suppress this e-mail and you know, do you knot, reading this question again, that we asked you to identify each and every fitting that was installed? Would you not at least now agree with us that you did not properly answer that...
A: No, I disagree with you because the way I looked at it was the fittings that were installed in the toilet for our use and that is what we did. We used those fittings and we worked there for five years.
Q: Mr Durai, let me put to you that appears to have happened, and you can agree or disagree. In your own view, you felt that the offending words only meant that expensive fittings were used.
A: No. There were extravagant fittings used by Bill Gates.
Q: Right. Used by Bill Gates. I see.
A: Only Bill Gates could afford it.
Q: Mr Durai, I really would ask you to be careful with your answers because you do not want to open up further lines of cross-examination. What you have done, to use your word, is, as the case progressed, there were more afterthoughts. In other words, you embellished the meaning as the case went on and on and on; is that not right?
A: It is not true. The meaning is so clear.
Q: And you kept shifting your ground to avoid having to meet the fact that, in fact, expensive installations were put in that bathroom.
A: No way. That is not the truth.
Q: And we do know now, do we not, that this was, if I may use the word … if you could just give me a minute so I use the right word and you tell me whether it is true or not … that those were installations that were made to a private office suite with an attached bathroom?
A: It is not to a private office suite. It is not my toilet.
Q: No, I will give you another chance, Mr Durai. Do you agree with me that it was a private office suite with an attached bathroom for your use?
A: That is not true.
Q: It is not true. I was very careful with my words. You have said it is not true.
A: It was for my use and for other people's use. Many other people use it. It was not for my exclusive use.
Q: We will come to that in a moment, but I am going to give you one more chance. Would you agree with the following description: private office suite with an attached bathroom for your use?
A: The word "suite'' conjured a very extravagant image. It was a simple office and it was a simple toilet to be used by many people. I was one of those users.
Q: So you do not agree with the word "suite''.
A: I do not agree with the word "suite''.
Q: Can I ask you to look at the setting down bundle at tab 2, page 33? At page 33, in our defence we said that we will justify the meaning; do you remember that?
A: Yes.
Q: Could you now go to (b) at the bottom of the page: "(b) The plaintiffs have used funds donated to the 1st plaintiffs on (i) the construction and/or renovation of a private office suite with an attached bathroom for the use of the 2nd plaintiff...'' Do you see that?
A: Yes.
Q: Put a finger at that page and go to tab 3, page 7. This is your reply at 11(2)(a). Do you see that it is admitted?
A: The toilet is used.
Q: No. Please, Mr Durai, precision is very critical in this case. Do you see it is admitted?
A: Yes.
Q: So you admitted last year that it was a private office suite with an attached bathroom for your use. Why today have you changed your position?
A: Because it is not correct. It was a toilet used by … I think in many other … in the other evidence, I have made it clear it was not for my use alone.
Q: Mr Durai, answer my question. When the case was started and when pleadings were filed, which you approved, you admitted that it was a private office suite with an attached bathroom for your use. Why have you changed your position?
A: Not for my exclusive use, as I said.
Q: Mr Durai, please...
A: Because that is the truth.
Q: I asked you, is it correctly described as a suite? You said "no''. Why have you changed your position?
A: Because it is not actually … it is not a suite. It was a private office. A suite gives an impression of a very lavish kind of do.
Q: You have always understood "suite'' to mean very lavish; correct?
A: Yes.
Q: And you … with that understanding … admitted that it was a suite; correct?
A: Yes.
Q: So you admitted, in a court document, that you had a very lavish office.
A: No, I am afraid, no, it is the wrong allegation. It is not true.
Q: I am only using your own admission.
A: It is an error.
Q: Mr Durai, you have corrected errors when you came into the box this morning. You said you had two errors you wanted to correct. One was despite claiming that you were a partner in Rodyk & Davidson at that time, you were not a partner. But put that aside. You have always had the understanding that a suite conjures up an image of a lavish outfit. We said you had a private suite with an attached bathroom for your own use, you admitted it in a court document, which remains unamended. Why are you now resiling from that position?
A: I believe it is a mistake and I want to be honest with the court, because it was not a lavish office.
Q: It cannot be a mistake because you and your lawyers had an opportunity to amend your reply, but you never amended this portion. It was not a mistake, was it?
A: It is a mistake.
Q: In fact, on Saturday, your lawyers and you looked at your pleadings again, realised that you had forgotten to plead special damages, tried to apply to plead that this morning, but failed, but did not change this. So it was not a mistake.
A: It is a mistake. This is a mistake. That is why I am telling court it was not a lavish suite.
Q: What has happened is, having admitted … to use your own word … that you operated out of a lavish private office suite with an attached bathroom for your own use, you have yet again changed your position.
A: It is not true. The witnesses will tell you it is not true.
Q: All I am doing is using your own words.
A: I am saying it is an error.
Q: It is an error, like the many other errors that have come out in the financial information fed to the public, Mr Durai?
A: I will answer them.
Q: If I can just sum up where we are now and you can tell me what you think about what I am going to say. We have seen from day 1 constant shifts in your position on meaning, afterthoughts, suppression of information on installations and now a last-minute change of position in relation to your lavish office suite. Do you agree or disagree?
A: That is not true. It was not a lavish office suite. The allegation was very specific that we wanted to fix a gold-plated tap which is extravagant, which only Bill Gates could afford. COURT: Please answer the question.
A: No, it is not, sir.
MR SINGH: Thank you. Mr Durai, it it your case that SPH and Ms Long have an agenda against you and NKF?
A: SPH, yes. I believe the SPH have certain strong views about how we run the NKF.
Q: That is not my question. My question is, and I would like an answer: is it your case that SPH and Ms Long have an agenda against you and NKF? "Yes'' or "no''?
A: Yes.
Q: Both of them have?
A: No, I do not think so. Probably SPH.
Q: So you accept that Ms Long has no agenda against you or NKF.
A: She is a part of the establishment.
Q: No, my question...
A: Yes, you are right.
Q: Does she?
A: I cannot say that. I will not...
Q: If you cannot say, the answer must be "no''; right?
A: Yes.
Q: Let us talk about SPH.
MR KHOO: Your Honour, they are two different things. "I cannot say'' is different from "no''. "No'' is a "no'' to the issue of she does not have an agenda. "I cannot say'' means "I do not know''.
A: I do not know.
MR SINGH: My question is: is it your case … and if the answer is "I cannot say'', it means it is "no''.
A: No, I do not know.
Q: You do not know?
A: I cannot comment on it.
Q: Are you suggesting that she has an agenda?
A: I cannot comment on it.
Q: Answer my question. You have alleged malice?
A: Yes.
Q: So answer. Are you suggesting that Ms Long has an agenda against NKF and you?
A: Yes, working for the establishment, she probably has an agenda, supporting what the organisation is doing, her organisation.
Q: So you are saying that SPH has an agenda.
A: Yes.
Q: And Ms Long is an accessory to it; correct?
A: Yes.
Q: What is SPH's agenda?
A: SPH, I believe, feels that they are the regulating body on matter of how charities are run. They believe that they have strong views of how charities should be run and I believe they want to be the fourth estate, they are the determinants of public interest, determinants of transparency.
Q: Yes. So now answer my question: what is their agenda against NKF and you?
A: I think the NKF has been a strong supporter of MediaCorp, working the the MediaCorp. The SPH has its own TV station, MediaWorks, and they have … probably have strong reservations about with whom we work. I can only fathom that.
Q: No, this is very critical. They have an agenda because you work closely with MediaCorp?
A: I believe so.
Q: Therefore, this amounts to malice; right, Mr Durai?
A: Yes.
MR KHOO: Your Honour...
A: No, I am not saying that.
MR SINGH: Please, malice is a question of law, your Honour.
MR SINGH: Malice is as well a question of law, but arises from whether there are any facts to come to that conclusion.
MR KHOO: Of course, but when he asks him if this is malice, was he asking him in relation to malice in a legal sense, in a defamation suit where you have to prove suit, where malice has to be proven to rebut fair comment?
MR SINGH: Mr Durai, you are aware that, in this case, you have relied on malice.
A: Yes.
Q: Both in your pleadings and in your affidavits.
A: Yes.
Q: Would you agree with me that nowhere in your evidence or pleadings do you say what you have just said now?
A: Yes.
Q: But this apparently must be the most critical feature of your case on malice. Here is a party with an accessory who is out to get you because you are close to a competitor, allegedly. Why was that not put in your malice pleadings or in your evidence? Or is ti an afterthought?
A: No, I did not see the need of putting it.
Q: You did not see the need. Okay. So it is like your e-mail to the world at large. You did not see the need to put in other aspects, but let us just look at this. The suggestions you have made that SPH has an agenda because you are close to your competitor is a very serious one, is it not?
A: I am just surmising that.
Q: It is a serious one; correct?
A: Yes.
Q: It will go to show that they were actuated by malice; correct?
A: I would not know whether I could approximate that to malice. I would say that they had … they did not like us for that.
Q: Come on, Mr Durai, as a lawyer, as a person who was involved in this process, who pleads malice, who relies on malice … you have a section on malice by the way in your affidavit; right? You know that, do you not?
A: Yes.
Q: Why did you not include this if you honestly believed that is the case?
A: I did not have to. I was advised by my counsel, I did not have to include everything possible.
Q: Mr Durai, this would be the clincher. Here is an organisation out to do you harm or to do you in. Why do you need to rely on peripheral matters of malice when you have this core allegation, if proved, that would clinch the case?
A: We chose another alternative route.
Q: You chose an alternative route.
A: We did not think it was necessary to do that. My counsel did not advise me to do that.
Q: So it is your counsel's fault.
A: No, I am not saying counsel did not find the necessity to do this.
Q: But here you are, the man who has done so much, according to you, in your affidavit, running the show, in the driver's seat, you want this court to believe that you took a back seat in these proceedings.
A: Yes, I acted on counsel's advice all along.
Q: Your position is that you believe they had an agenda, that they were out to do you in, "but I better not say it because that is not what I was advised to do''; is that right?
A: No, I did not think … I did not want to … no, you are given a choice of what you want to put in, write it, and we chose something else to prove malice.
Q: You chose something else.
A: The way my counsel advised me, I proceeded on that basis.
A: So between a very strong allegation and a weaker one, you chose the weaker one.
A: I acted on counsel's advice, which was the way to go.
Q: You see, the real truth is you do not even believe what you just said.
A: No, I believe.
Q: You are trying to rely on malice to demolish fair comment and qualified privilege. You would deploy the best evidence in support of your case; is that not right?
A: I think in the evidence we intend to show, malice would be sufficient to show malice.
Q: You would deploy the best evidence available to you; is that not right?
A: That may be your view.
Q: Are you saying that you took a conscious decision not to deploy the best evidence for yourself?
A: I am not very conversant on what evidence I should use to prove malice. My counsel advised me of this, to go on this particular path. I followed the path.
Q: If you are going to talk about your counsel's advice, I am going to suggest to you that your privilege is being waived, so be very careful, you are treading the line and you are coming very close to it. If you want to push on with that, I am going to ask for discovery of that advice. So I am going to ask you again now: is it not your position that, in this case, you wanted to and did deploy the best available evidence to advance your case?
A: Yes.
Q: Would you not agree with me that if you genuinely believed that there was an agenda, that would be very powerful for your case on malice?
A: I did not want to do this.
Q: "Yes'' or "no''?
A: I did not want to do this.
Q: No, my question is "yes'' or "no''.
A: The question again?
Q: Did you not believe or would you not agree with me that if you genuinely believed that there was an agenda, that would be very powerful for your case on malice?
A: Yes.
Q: Would you also not agree with me that you make no reference to this so-called agenda in your pleadings, your affidavit, your opening statement or any other document?
A: Yes.
Q: Is it not correct, Sir, that this assertion of an agenda is another afterthought?
A: No.
Q: Is it not perhaps symptomatic of what the article described the NKF as having a persecution complex?
A: No.
Q: Do you remember the article mentioned that?
A: No.
Q: You do not? Shall I refer you to it?
A: No, I do not agree that we have a persecution complex.
Q: Sorry?
A: I do not agree that we have a persecution complex.
Q: You did not sue on it; right? Remember? I will take you to the article, defendants' bundle of documents, volume 2. Please go to page 335, which is the article in question. Can you go to page 336, on the extreme right column? This is what the article says, five paragraphs from the top: "On the NKF's part, so often has it been badmouthed … which it attributes to "professional jealousy' … that it seems to have developed a persecution complex of sorts. "Why is it us, always us?' is the plaintive cry its board members often utter.'' Do you remember reading this?
A: Yes.
Q: You had no complaint about this; right?
A: No.
Q: Right?
A: Yes.
Q: You felt that it was fair and accurate; right?
A: No.
Q: I beg your pardon?
A: Yes. It was.
Q: You said "no'', then you say "yes''.
A: What is your question?
Q: You felt that this was fair and accurate; right?
A: No.
Q: Is ti false?
A: We did not feel that we suffered from a persecution complex, in that sense, of that gravity.
Q: No, Mr Durai; answer my question. Was this, in your view, false?
A: I did not agree with it.
Q: That is not my question. Is it false?
A: It is a comment. I do not agree with it. Some people feel this way; some people may not feel that way. I cannot say it is false. Some people may feel strongly about it, but we do not feel that way.
Q: So you are aware that there is a feeling out there that the NKF has persecution complex.
A: Yes, some people have, some people say so.
Q: Right?
A: Yes.
Q: As far as you are concerned, to talk about a persecution complex is a comment?
A: Yes.
Q: Right?
A: Yes.
Q: In fact, it attributes this persecution complex to a comment made by the NKF board members; is that not right? So when you say that some people feel that, some people do not, in fact some members of the NKF board themselves have this complex; right?
A: Yes.
Q: Thank you. So if that is the case, it is true, is it not, that the NKF has a persecution complex?
A: No. I mean, some members feel so.
Q: Some members of the board feel so.
A: Yes, they feel so.
Q: And this is all there is to it, is it not, this agenda is part of this overblown, imaginative persecution complex?
A: What is the question?
Q: The agenda that you accuse the SPH of having is nothing more than a figment of that prosecution complex.
A: No.
Q: No? You see, Mr Durai, I put it to you that you do not even believe your own evidence that SPH has an agenda.
A: No. If you read the articles which come out in the papers sometime last year in April staring with the Aviva issue, then going up to the reserves issue, you will find there was a tremendous assault on the reputation of the NKF, day after day, unprecedented in history.
Q: Would you say that the Aviva articles were part of this agenda?
A: What agenda?
Q: The agenda you described?
A: No, they were against us.
Q: No, please answer my question. Would you say that the Aviva articles were part of this agenda?
A: Yes.
Q: Right. The Aviva articles came out, I believe, on 2nd, 3rd and 5th April; correct?
A: Yes.
Q: I want to show you a document at defendants' bundle of documents, volume 1. Could you turn to page 213? This is an e-mail from NKF to SPH, the Straits Times, after the Aviva articles.
A: Yes.
Q: "Thanks for the articles that have appeared in The Straits Times over the past few days. The articles have given both side to the arguments, and have generally been well balanced.'' Mr Durai, you have to make up your mind. Today you say that the Aviva articles demonstrate this agenda, but at the time when they appeared, your organisation was calling those articles "well balanced'' and "having given both sides to the arguments''. Can we please know what the position is for a change, Mr Durai?
A: This was a letter written by one of my colleagues...
Q: It is written by your PR department.
A: Yes.
Q: Who is at the forefront of the relationship with SPH.
A: Yes.
Q: And who would feel it if there was this agenda. They were here writing to the SPH, thanking them for the articles, congratulating them for being well balanced and for giving both sides of the argument. Today you say those same articles demonstrate an agenda. My plea to you, Mr Durai, is can we please, please finally know what the position is?
A: My colleagues … I checked with my colleagues on this letter. My colleagues wanted to work with The Straits Times in every way possible. It is a dominant newspaper and they wanted to see any possible way to work with them, so they wrote this article in
the interest...this letter to see whether in spite of the attacks they had had, whether there was any way they can work together.
Q: Mr Durai, if SPH had an agenda because of the association with MediaCorp, this kind of e-mail is not going to change that agenda, is it?
A: We try. We are at the mercy of the newspapers. We try. We try our best to see whether we can work with them.
Q: You see, Mr Durai, it is quite clear that nobody believed there was an agenda. Nobody believed that there Aviva articles were out to get you or designed to get the NKF. In fact, SPH was thanked for them.
A: No.
Q: Is that not correct?
A: Not correct.
Q: And this whole theory of an agenda is another afterthought, in fact was not even thought about throughout this entire case, and has come out for the first time today.
A: No, it is not true. As a public organisation depending on public goodwill, we need support and we try to work with our detractors and everyone possible to get on, because we need public goodwill. And we are often at the mercy of many, many situations where we try to mollify and suffer whatever happens to us.
MR SINGH: Would this be a convenient point, your Honour? I am going on to a new area. Thank you.
(The luncheon adjournment)
MR SINGH: Mr Durai, the defendants say...and I know you do not agree...that the article means that NKF is controversial and that there is a lack of transparency. I would like to talk to you about controversy for a moment if I may. Would you agree with me that there is and has for some time now been controversy surrounding NKF?
A: What do you mean by controversy?
Q: Controversy. In other words, a difference of opinion and views about the way NKF conducts itself, its finances, work practices.
A: Yes, from some quarters.
Q: In fact, you would accept that NKF has from time to time received criticism from the public and the media about its activities?
A: From some members of the public, yes.
Q: You also accept, do you not, that if this honourable court finds that all that the article means is that there is controversy surrounding the NKF, then that is not defamatory?
A: Yes that is not.
Q: Thank you very much. In fact, it is not your case also that the rest of the article, other than the six offending paragraphs you have identified are perfectly acceptable?
A: Yes.
Q: And therefore there is nothing in the rest of the article which is defamatory of NKF and/or to you.
A: Yes.
Q: Which is saying that to the extent that the rest of the article contains facts, these facts are true. To the extent that they contain comment, that is fair comment? Correct?
A: That's true.
Q: And also that in addition to the rest of the article, there is no malice.
A: I would not be able to comment on that.
Q: I am going to ask you to because you have, in this case alleged malice in your affidavit and in your pleadings. You've also said that there is nothing wrong with the rest of the article, and you have just agreed with me that it is fair comment to the extent that it is comment.
A: The person may have written with malice, I wouldn't know.
Q: Right, but as far as you know there is none, right?
A: I cannot give...I cannot comment on that. I cannot read somebody's mind.
Q: I am asking you for what is in your mind. Do you consider that there was any malice in relation to the rest of the article?
A: Possibly.
Q: You do?
A: Yes, possibly.
Q: All right. Is it your case therefore that even though the rest of the article contained to some extent comment there was malice in relation to these comments that were reported?
A: No. There may have been malice, there may not have been malice, but we were not concerned about it because we were concerned about the defamatory words in the first six paragraphs. People can comment about the NKF. They have a different point of view. There is nothing wrong about it.
Q: You have in the past sued individuals for comments expressed about the NKF, have you not?
A: No, not exactly.
Q: You have not?
A: We have sued for wrong allegations.
Q: Right. And are not some of these allegations comment? And you had better think carefully before you answer that question.
A: No.
Q: They are not?
A: No.
Q: All right. In the rest of the article, if I might describe it as such, you were satisfied that it was not defamatory or that there was no basis to take legal action, right?
A: Yes.
Q: That must mean that you were satisfied that there was no malice to defeat the comment?
A: No, I did not consider the issue of malice. I did not...to me it didn't matter at all. I mean people may have written...some people write articles with good intentions, some people write articles with malice. It did not bother me. It is a freedom of the press. If they want to write, they can write. But I cannot give you a definitive statement to say that she wrote it with malice or without malice.
Q: Thank you very much. The strange thing about your evidence today is that you appear to be unsure now about whether the remaining 54 paragraphs of that article were actuated with malice. But here is an organisation that is out to do you in, Mr Durai. Yet the overwhelming bulk of the article is perfectly acceptable.
A: No, I am not saying...I am saying if people want to write about the NKF, they can write. The remaining paragraphs, some of them were not fair on the NKF. We did not mind it. People have their views about the NKF, they can express them.
Q: The point is, Mr Durai, the reason you did not sue over the rest of the article is because it was fair and balanced, and it was honest in terms of the expression of opinion. Would you agree with that?
A: No, I mean we did not agree with some of the points there but we did not mind it. People can have their views, different views about it. You know you are dealing with a predominant press, you do not want to antagonise them unnecessarily. You resort to legal action when you really think you need to correct a wrong impression about the institution you represent.
Q: You had said that the rest of the article insofar as it was factual was true, correct?
A: I'm not saying it is true. I am saying they have written a lot of things there, which the person has a different viewpoint, different comment.
Q: I'm afraid I will have to refresh your memory. I asked you which is saying that to the extent that the rest of the article contains facts, those facts are true. To the extent that they contain comment, that is fair comment. Correct? Answer: That is true. Having had the opportunity of being reminded of your evidence, would you please confirm that you considered the rest of the article to be true insofar as it was factual, or would you like to change your evidence again?
A: No, I would say the remaining paragraphs of the article was something which I would accept. I will not agree with many of the contents...some of the contents of the article but it did not bother me.
Q: Answer my question. I just reminded you of what you told this court, and you are on oath.
A: Yes.
Q: You had said that to the extent that the rest of the article contained facts, they were true. Are you prepared to stand by your own evidence or would you like to change it?
A: I would like to change that because I do not agree with some of the points there. I did not mind them.
Q: Another change, Mr Durai. Let's look at the article and tell us what is false. The rest of the article apart from the six paragraphs. For your benefit I am using the...
A: I am not saying it is false. I am saying I do not agree with some of the points written in the article.
Q: I am now focusing on fact. Can I ask you once again...
A: Where is the article?
Q: The article is in defendants' bundle of documents, vol two at page 335.
A: Yes.
Q: What in the rest of the article, in terms of facts, is false?
A: One down side cited by former employees is...
Q: Sorry, which column, which paragraph is it? Page 335 or 336?
A: Yes.
Q: Which column from the left?
A: The second column.
Q: Which paragraph?
A: One downside cited by former employees...
Q: Is it the second column from the left?
A: Yes.
Q: On the right or the left?
A: Yes.
Q: On the right or the left?
A: Other people's money...you go to the 7th paragraph.
Q: Right, you're looking at the second column from the right?
A: Yes, yes.
Q: Not the left?
A: Sorry.
Q: It is all right. You are looking at the 5th paragraph from the top?
A: Yes.
Q: All right. ""One downside cited by employees is a corporate culture described as cagey, in which staff are discouraged from discussing finances.''
A: Yes.
Q: That is false?
A: No, it is not true.
Q: So, is it false?
A: You can take it...
Q: Right.
A: I do not agree with that. Some people may say that, but I do not agree with that.
Q: No, please, I think you should...
A: The point is...
Q: No, listen to me. You should assume that we understand the distinction between fact and comment. I am not talking about comment which you can agree with or disagree with. I am here asking you to focus on fact, which you say is false?
A: No, I am not saying it is false. I am saying I do not agree with this comment.
Q: Right, so can we now leave comment aside?
A: Yes.
Q: And focus on which facts in the rest of the article are false.
A: I will not say they are false.
Q: There is nothing there that is false in terms of fact. Thank you very much. What we have done is we have numbered the paragraphs for convenience. You will see the numbers by the paragraphs. Do you see that? In the defendants' bundle. That is the one that I am referring to. Would you look at paragraph 44, which is in the third column from the right at page 336.
A: Yes.
Q: It reads: ""For the record, Mr Yong...'' I think Mr Yong is the chairman, right?
A: Yes.
Q: ""...says, there is no such thing as first-class travel. Senior executives from directors up, including CEO Mr Durai, fly business class. The rest fly economy.''
A: Yes.
Q: Is that true?
A: No. The NKF pays for business class travel from Singapore.
Q: You see Mr Durai I will come to the way you have crafted your affidavit very very cleverly in a moment. I am just asking you a very simple question, which can be answered with yes or no.
A: No...
Q: Is this paragraph true or false?
A: I have to explain to the court that...
Judge: Can you answer the question and then give your explanation after that please.
Q: Is this paragraph true or false?
A: True.
Q: ""There is no such thing as first class travel. Senior executives from directors up, including CEO Mr Durai, fly business class. The rest fly economy.''
A: Yes.
Q: Is that true?
A: Yes.
Q: It is true?
A: Yes.
Q: You wanted to explain?
A: I wanted to say the NKF has a policy in which myself and directors upwards are given entitlement to travel on business class from S'pore. They are entitled to use the value of the ticket to pay or buy or get any ticket which may be a first class ticket somewhere else and travel on first class.
Q: Now, we are getting to the truth of the matter. Mr Durai, did you not threaten to sue an aeromodelling instructor and another gentleman Mr Archie Ong for saying that you travel first class?
A: Yes I sued them.
Q: Was that an honest threat of action and action itself? Was that honest?
A: Yes, because the NKF did not pay for my first class travel from Singapore.
Q: Right. Keep this page open because I am going to come back to it. Can I take you to what you did. If you would first go to my core bundle, the defendant's core bundle, at page 123.
A: Yes.
Q: According to this report in April of 1998, you obtained an apology, damages and costs because one Mr Archie Ong had said in a casual conversation to an NKF volunteer Mr Alwyn Lim that the organisation squandered money and that Mr Durai jets here and there in first class implying that he did so on NKF business.
A: Yes.
Q: And Mr Archie Ong apologised and withdrew the allegation of first-class travel unreservedly?
A: Yes.
Q: He also paid damages and legal costs, right?
A: Yes.
Q: And NKF's position was that the allegation was grossly untrue, right?
A: Yes.
Q: Could you turn to 124? Later, the same year the same thing happened. This time Mr Piragasum Singavelu, who had alleged that he saw you travelling first class on Singapore Airlines and according to you had insinuated that you sued NKF funds meant for patients. Do you remember that?
A: Yes.
Q: What you got from Mr Piragasum was an apology to the effect that he had lied and concocted false allegations, right?
A: Yes.
Q: Could you go to the 5th par? The apology that was drafted for him made him also say that his statements were mean, laced with venom and calculated to insult and humiliate Mr Durai without any just cause whatsoever and without any regard to the truth, right?
A: Yes.
Q: And he paid damages and costs.
A: Yes.
Q: You have to travel in the course of NKF business?
A: Yes.
Q: I assume that the directors feel that since you have to travel sometimes long distances for work you should have the comfort of business class?
A: Yes.
Q: Can we have a straight answer to this question and listen very carefully to it. Using NKF's fund have you travelled first class? A straight answer, you are on oath.
A: Yes, the NKF has not paid for...
Q: No, no. My question is very simple and the difficulty you are having answering it tells us a lot, but I will give you another chance. Using NKF's fund have you ever travelled first class?
A: No.
Q: Is that the honest truth?
A: I have travelled on...using NKF's funds on a business class entitlement. I have used it to travel first class.
Q: I ask you one more time.
A: Yes.
Q: Forget entitlement.
A: Yes.
Q: Money. NKF's money used, you travel first class?
A: Yes.
Q: You have?
A: Yes.
Q: Yes...
A: On a business class entitlement.
Q: Yet you sued, obtained damages and costs against two innocent individuals for saying exactly what you have just told the court today.
A: That is the difference because...
Q: I will show how the difference arises by plain language. Go to your affidavit, look at par 176 of your affidavit of evidence.
A: Yes.
Q: Read it to yourself.
A: It is not true that other NKF executives fly business class but it is true that I do so... When I travel by plane on NKF business, the NKF purchases tickets for me at rates not exceeding the price (at the time of travel) of an equivalent SIA business-class ticket.
Q: There's a lot that you have told us in this par without actually being explicit about it.
A: Look at the next par.
Q: I will come to it. Do not worry, you will have more than fair opportunity. Do you want to read par 177? Go ahead.
A: As a result I have flown in all classes, including economy, business and first class but it has not cost the NKF more than the cost of an SIA business-class ticket.
Q: You see, the truth is this. You have told us that the board feels you need the comfort of business class travel because it is long distance and you need to rest for your meetings, right?
A: Yes.
Q: What you have done with the board is obtain a perk, ostensibly business class fare, but pegging it to SQ's rate for business class, correct?
A: Yes.
Q: Some of us also travel and we know that when you get the full SQ business class fare, you can use that amount of money and get first-class on other airlines.
A: The board gave me the entitlement.
Q: Answer my question: Is what I am saying nonsense or true?
A: Not in Singapore, from other countries.
Q: It doesn't matter.
A: No, that is what I have done.
Q: When you travel, it is always to other countries or from other countries?
A: No, the tickets are purchased from other countries.
Q: Thank you. So you agree with me, do you not, that you can take this entitlement called SQ business class. Let's say Singapore to New York.
A: Yes
Q: $9160, SQ business class?
A: Yes.
Q: But first class, say, on MAS or Eva is lower. You know that?
A: No, I would not know that.
Q: You would not?
A: Because I did buy the tickets from S'pore.
Q: All right, so I will not be specific. You would know that you could get first class tickets from other countries and other airlines at a lower price?
A: Yes.
Q: Effectively, what you have done is you have used money from the NKF ostensibly for business class travel but really for first class travel.
A: I have used...
Q: Yes or no?
A: Yes. Can I explain?
Q: You can, but I would appreciate it if you would answer the questions.
A: Yes.
Q: You see, Mr Durai, this is public money. You yourself said that you need business class to travel in comfort. Is it not your duty as a trustee of people's monies to make sure that you get best value on a business class seat instead of deploying this clever tactic of using one of the highest published rates to get first class on another plane?
A: This is a decision made by the board. I used the entitlement.
Judge: The question is not who made the decision.
A: The board gave me the...
Judge: Nobody asked you a question about the board. Please answer the question.
A: Yes.
Q: Is it not true that as a trustee of people's money, you have a duty to ensure that you get value for that money?
A: True.
Q: Is it not true that as a trustee, you have to maximise the use of those monies?
A: True.
Q: Is it not true that you needed to fly in business class for business class comfort?
A: No. Can I explain, your honour?
Q: Look at par 177 … I am going to use your own words against you. Third line: ""Much of this involves tiring long distance travel and the need to be properly
rested when travelling on behalf of NKF's business was recognised by NKF's board which set my entitlement.'' Your entitlement is at page 176 which according to you is ""when I travel by plane on NKF business... sorry, I should read the first line. It is not true that other NKF executives fly business class, but it is true that I do so. When I travel by plane on NKF business, the NKF purchases tickets for me at rates not exceeding the price... of an equivalent SIA business-class ticket.'' In other words, the directors feel, as you have confirmed, that you deserve business-class comfort. Correct.
A: Business-class entitlement according to the Singapore Airlines rate.
Q: Please do not play with words.
A: This is an entitlement given by the board to me. An equivalent of a business-class ticket on Singapore Singapore Airlines, your honour.
Judge: That was not his question. His question was the directors feel that you deserve business class comfort?
A: Yes.
Q: Is that not right?
A: Yes.
Q: Because you deserve business class comfort, you are given a perk of business class travel?
A: Yes.
Q: Using the money donated by the man in the two-room HDB flat, right?
A: Yes.
Q: Who has never in his life seen a business class cabin, right?
A: I would not know that.
Q: You would not? That is an honest statement?
A: Yes, I cannot comment on that.
Q: So you come up with this contrivance where you settle your perks at SQ's business class rate, use that money to go first class and sue people who say that they have seen you in first class?
A: Your honour, I must explain this. I was...
Q: You have abused the process of the court, you have abused the wealth of the NKF to take on this poor aeromodelling instructor who probably does not earn more than $1,000 a month to pay damages to you, to publish an apology and to pay costs, all because he said the truth?
A: It is not true. At that point of time when this occurred, I didn't travel...I did not travel first class on the basis suggested by him, but of late for the past two years the board has given me an entitlement to travel business class on a Singapore Airlines ticket. The reason, the board has given is because of the length , the way
I travel, the way I work, because to be functioning effectively, so I have taken the liberty of using the money to travel in first class so that I can be more effective in the workings of the foundation. That is what the board has decided. They know about this.
Q: You can do that with your own money, sir, but when you are using the hard-earned money of people who are donating to save lives, you maximise it by going on the most reasonable business class plane instead of deploying this deplorable strategy of hiding it behind a business-class airfare SQ rates.
A: It is not true. I also work very very hard, and I give my blood and toil and sweat to be effective for the foundation. I work as much as possible and the monies I raise are for...
Judge: Nobody asked you about those things at this juncture. Next question please.
Q: Thank you, your honour. Therefore coming back to Richard Yong's statement in that article, is it true or false that nobody flies first class on NKF's money?
A: On the basis of what you said, it is not true.
Q: And that is why you did not sue, is it not, on that, because you were afraid the truth would come out. In other words, you were quite content for your chairman to mislead S'poreans through the newspapers an he deliberately misled S'poreans with that false statement. Is that not true?
A: It's not true.
Q: You knew it was a true statement, right?
A: As I was explaining to you, how the entitlement works.
Q: Mr Durai, we started off after lunch with you saying that that paragraph in the article was true. You have now ended up saying it is not true, and I am suggesting to you that you allowed your chairman to mislead S'poreans about how NKF uses its donations and you have endorsed that misleading statement in this court by saying it is true. Is that not correct, Mr Durai? Please you are on oath, finally tell us the true position.
A: The true position is, as I have explained, is I think when Mr Yong said that, he was talking of a business class entitlement for our use, and what you do with the money is your own business. That is how I was told. That is how I have conducted myself.
Q: Sorry? What you do with your money is your business?
A: That is the entitlement given to you, and if you can use it efficaciously to fly any way possible, that's what I did.
Q: Do you pocket the rest?
A: I do not pocket the rest. I in fact travel cheaper than the business class at times and the foundation knows it.
Q: Which is why when we asked for discovery and further particulars about how you travel, your answer was NKF does not keep records by class of travel. Do you remember saying that?
A: Yes.
Q: And the reason you said that is because if those records are shown, it would come out that you have been flying first class regularly.
A: No, I have travelled, I have travelled economy, I have travelled business and I have travelled first class. On short distances, I have gone economy fare too. I have done that.
Q: I read again Mr Yong's statement to the world at large, in the article which you complain was defamatory of you, and on which you sued. For the record in other words, so that there is no doubt in anybody's mind about this, Mr Yong says there is no such thing as first class travel. That is false, correct?
A: Can I answer this?
Q: That is first; correct?
Judge: You are supposed to answer.
A: The point he was trying to say is basically that NKF...
Judge: You have to answer the question first and then explain.
A: Yes, I do not think it is correct to say it is false. Because I think what he meant was the NKF does not pay for a first-class airfare ticket from S'pore.
Q: Right, from Singapore. Is that what this says? Does this say that if Mr Durai flies from S'pore, we only pay business class. But if Mr Durai flies from other countries back to S'pore, then it is first class? You see, Mr Durai, as I said some of us do travel and we also know you can get tickets outside the country for two two ways, come to S'pore and back.
A: Yes.
Q: So what you do is you use your entitlement and put yourself on first class on those tickets, right?
A: Yes.
Q: Therefore is this statement true or false? That is all I am asking you. I am not asking for clarification. Is this statement by Mr Yong said to the reporter Ms Long meant for the public and the donors, true or false?
A: It is not accurate, yes. Your interpretation is not accurate.
Judge: On your interpretation it is accurate?
A: Because, your honour, the way we function as, as I was saying...
Judge: Please do not repeat yourself. We need to finish this trial on time.
A: Yes.
Q: How will the public read this? Tell me. You know, do you not, that the reason for this par and the words for the record is that there has been this controversy since the 1990s about whether you travel first or business.
A: Yes.
Q: So it is still fresh in the public's mind?
A: Yes.
Q: That you have sued two people who have alleged you travel first class?
A: Yes.
Q: For the record, in other words, to settle this issu. Now tell me, how will the public, who know about this, read this par?
A: They will have a different view on it.
Q: They will read it to mean that none of NKF's executives, including you, fly first class using NKF's money, correct?
A: Yes.
Q: And that is false, correct?
A: Yes.
Q: Thank you. Is this transparency or is this deliberate concealment of facts? Tell me. We had come to this court to justify the lack of transparency. What we have now learnt is far more egregious than that. Mr Durai, tell us, is this merely a matter of transparency or is this an orchestrated attempt to lie to the public?
A: No, your honour. We have been... We have been functioning on this basis. The board has made its decision on the entitlement, I have used the entitlement to travel the way I want for the purpose of the business. That is the way I function. It is not something I have done deliberately to deceive the public or whatever it is.
Q: Mr Durai, are you now going to do the right thing and go to those two persons you took money from to return it to them and to apologise?
A: No, I did not use NKF's monies. The NKF did not pay for a first-class airfare bill for me. I paid the difference. On the occasions when I travelled first class, for example, when I come back from Madras, the business class fare is a certain amount. I pay the difference and I upgrade myself.
Q: Are you going to answer the question? Yes or no?
A: No.
Q: So the answer is you are not going to do that, right?
A: No.
Q: Thank you. Can I take you back to the newspaper article? It is in the core bundle, page 123, the one that Mr Wadeley had handed to you earlier. Look at page 123.
A: Yes.
Q: The third par reads, quoting Mr Archie Ong, he said: ""Mr Durai jets here and there in first class'' implying that he did so on NKF's business. Do you see that?
A: Yes.
Q: Go to the bottom of that page, 4th par from bottom: ""On the implication that he flies first class on NKF's funds, Mr Durai we on the exco have never and will never use NKF funds for private travel. I have business concerns apart from the NKF which I have to attend to. And I may also get an upgrade to first class. So what people see cannot be assumed to be the truth.'' Over the page at page 124, first par: ""A man apologises for alleging that Mr TT Durai used NKF funds to travel first class.'' Mr Durai, look at the third paragraph from the bottom: ""In the NKF statement, Mr Durai said he had taken action against Mr Piragasum because it was not simply a personal attack on his character. Left unchallenged, such allegations would erode the foundation status and affect the care of its patients. Public sympathy towards the foundation would diminish, and along with it, crucial donations vital to its operations,'' said Mr Durai. This is not the first time that the NKF chief has received a public apology. Then I want to take you to page 128. This is a letter dated 13 May 1999. It is from Mr Alwyn Lim, vice-chairman, executive committee and chairman, finance committee, National Kidney Foundation. Do you see that?
A: Yes.
Q: You were aware of this letter before it went out?
A: Yes.
Q: You endorsed it.
A: Yes.
Q: He was responding among other things to the lawsuits, right?
A: Yes.
Q: Could I ask you to go with me to the 4th par: ""The NKF is not pursuing legal action to protect the reputation of key staff. On the contrary, this legal action is to reinforce the transparency of the NKF.'' I think at that time there was another lawsuit in relation to some e-mail that was circulating.
A: Yes.
Q: Do you remember that? What I want you to do is go to page 129. Look at this par: ""Mr Lim implies in his letter that NKF staff travel first class. NKF staff do not travel first class using NKF funds.'' Is that true or false?
A: On what you have said it is true...it is not true.
Q: It is true on what I have said?
A: Yes.
Q: In fact two individuals' apologised publicly last year and paid damages for making baseless allegations that NKF personnel travel first class. ""All NKF staff travel economy class, except senior officials who travel business class for long haul flights.'' Mr Alwyn LIm was not being truthful to the public. Correct?
A: Can I explain this?
Q: Yes or no?
Judge: You have to say yes or no.
A: It was true at that point of time, your honour. Because at that point of time...
Judge: I did not hear your first part.
A: I cannot hear you.
Judge: What did you answer?
A: No, I want to explain because at that point of time I was not travelling or I was not travelling using NKF's monies to buy a first-class airfare ticket. What happened, your honour, when I travelled to a location on a business class airfare, I paid the difference and then travelled on first class. That's what happened during those occasions. When I used to go to Madras, I used to take a night flight. The difference in price was only $50. I paid the difference myself and travelled and came. So the NKF did not pay for my full...for a first class airfare ticket at that point of time.
Q: Mr Durai, you have earlier on just said that Mr Alwyn Lim's statement that the NKF does not pay for first class is not correct.
A: No, I'm just saying as of that date, what I was... I must explain. This was the position, your honour, because the situation changed thereafter. Because...
Q: Go on.
A: On those occasions when I sued Archie Ong and Mr Piragasum, I was going to Kuala Lumpur on flights, I was acting as a director there, I was paid to travel. I travelled on first class. And when I went to Madras on work, I paid the difference to go on first class airfare. The NKF paid for my business class airfare. I paid the difference myself.
Q: Mr Durai, even accepting what you now say, you wanted the world to think that what Alwyn Lim said in May 1999 continued to apply in 2004. Correct?
A: That was written in 1999.
Q: Correct. You wanted the world to think that what Alwyn Lim said in 1995, May, continued in 2004. Correct?
A: I do not understand your question.
Q: You wanted the world to think that, right?
A: I did not want the world to think that. I'm just saying insofar as I was concerned, this was the modality that was used in terms of buying tickets. I honestly believed there was nothing wrong because the board decided so, and that is the way we functioned. I was not trying to deceive the poor or the public at all.
Q: The reason you wanted the world to continue to be under that illusion is because or rather to show that you wanted the world to be under the illusion in 2004, Richard Yong put out the word that the policy remained the same. Is that not right?
What Richard Yong said in 2004 is exactly what Alwyn Lim said in 1999. Do you agree? Yes or no?
A: No.
Q: Answer my question, please.
A: The point is this. Both of them said yes, the NKF pays for a business class airfare ticket.
Q: Why was it necessary for Richard Yong to mislead the public?
A: It was the policy of NKF to only pay a business class airfare. It is like asking me...depriving me of using the funds, what I want to do, in whatever way I want. The NKF said you can use the entitlement.
Judge: Mr Durai...
A: Sorry your honour.
Q: Why was it necessary for the chairman of the NKF who is going to come and give evidence, to make that statement which is not true? Mr Durai, you know that the statement was made, you did nothing to correct it. Why was the public misled?
A: As I keep saying insofar as I was concerned, I believe what I did was right. I was given that entitlement. The NKF gave me the entitlement.
Q: Here we go again. Listen to the question carefully.
A: We did not deceive them.
Judge: Otherwise we are going to waste a lot of time.
A: I am not deceiving the public, your honour.
Q: Mr Durai, one last chance before I move on because if you have no answer, we know what it is. Why was it necessary to mislead the public?
A: You can ask Mr Richard Yong that question because I would not know why.
Q: If you were an honest man, you would have published a correction, correct? You did not publish a correction. You therefore endorse that misleading statement. Why was it necessary to mislead the poor people of Singapore who give their hard earned cash to the NKF? Why?
A: As far as I was concerned, I did not think I was misleading the public.
Q: Do you or do you not consider the use of this method to get yourself on first class using donations mismanagement?
A: No.
Q: You do not? Even though these are people's money meant to save lives, meant for you to fly business, you used the money to fly first class. Is that or is that not mismanagement?
A: It is not because I flew within my entitlement for the purpose of the institution which I represent for the effective functioning of the organisation.
Q: The reason the public has to be misled is because you know that if the public knew the truth, they would be upset that these methods were being used to get yourself on first class. Is that not right?
A: No.
Q: The public would be upset that instead of finding the most economical business-class fare, you use this device to get yourself in the front cabin.
A: No.
Q: That is why you are not telling them the truth.
A: NO, the truth is...
Q: Why hide the truth?
A: I am just like every other CEO working at an organisation with a turnover of $120 million.
Judge: The question that he asked you is: why hide the truth?
A: I beg your pardon?
Judge: His question that he asked you is: why hide the truth?
A: I did not catch you, your honour.
Judge: Please repeat your question.
Q: Why hide the truth? You see, Mr Durai, if it is completely acceptable, completely above board?
A: Yes.
Q: Kosher?
A: Yes.
Q: Why not tell the public this is what you are doing? Why create a totally false impression, as we have seen in this article? Why?
A: On hindsight, we should have done that to say I travel on a first...on a first-class using a business class airfare.
Q: What do you mean on hindsight? Even on your affidavit which was filed a few days ago, you are still fudging that fact and I had to bring it out in cross-examination. What do you mean on hindsight?
A: It is being explained in the next par. It explains it, I travelled within the entitlement which is given to me.
Q: The reason you hide the truth is because you know that that is the wrong thing to do, using people's money, and because you know that is mismanagement of donations.
A: I disagree with that.
Q: Let's move on. You know, do you not, that as a result of the report of your action against people who talked about your first-class fare, there was a debate in Parliament on this issue, or rather a Member of Parliament raised this issue in Parliament.
A: I am aware of it.
Q: Go to the core bundle, my defendants' core bundle, page 125, CB125. This is a debate on 16 Mar 99, so it would be the budget debate on MCD as it was then known as.
A: Yes.
Q: Do you have it? The speaker is Mr Sin Boon Ann.
A: Yes.
Q: If you go to the second par, you will see: ""Towards this end, therefore, many VWOs are engaged in fundraising exercises in order to increase the resources available to fund the programmes. The NCSS, which is the umbrella organisation covering many of these VWOs in S'pore, is one of the largest recipients of public donations and government funding for social programmes. One has no doubt that the money that has gone into the NCSS is well used and well managed by the NCSS to assist its member organisations in its various activities. The sums received by many voluntary welfare organisations are not small. However following the recent episode wherein a member of the public had wrongly accused the CEO of NKF of misusing the foundation funds, many S'poreans have indeed begun to ask whether there are proper guidelines as to how the money that is given by members of the public and the government should be spent, and whether there is an audit system in place to ensure that these guidelines are adhered to. These guidelines must surely be based on the principles of achieving greater effectiveness and efficiency for the VWOs, so that every dollar given can be stretched longer. If there is assurance that taxpayers' monies and donations by members of the public would be made to good use, I am sure that it would serve as an encouragement for many more people to put in money into the organisation for a useful and proper cause. On the other hand, if it was discovered that the monies donated to an organisation is not very well managed, then the organisation concerned should charge its principal officers or suffer the consequences of not having any public support for its activities. MCD should therefore perform this watchdog function in ensuring that the money granted to these organisations would be put to proper use.'' Mr Durai, would you agree that what Mr Sin said in Parliament reflected the public's concerns at that time?
A: Yes.
Q: In other words, there was a public concern in '99 at least about first, the use of donations by charities and secondly, whether that use was sufficiently transparent.
Q: Yes.
Q: In fact, if you go to page 127, of that bundle, on 5 May, this letter that Alwyn Lim wrote, do you see that?
A: Yes.
Q: Sorry, page 128, If you look at the 4th par: ""This recent unsolicited internet assault on its reputation (that is NKF's reputation) seeks to cloud its transparency and with it, the integrity of the foundation through fabricated allegations.'' The NKF is not pursuing legal action to protect the reputation of its key staff. On the contrary, this legal action is to reinforce the transparency of the NKF.'' That is the second time this letter talks about transparency. Look at the next par: ""If the foundation had chosen to be silent, then it would have been construed that NKF is not transparent.'' Just skip another two pars. ""Transparency is a hollow phrase if there are no systems and processes to ensure that it is upheld, and the NKF has taken all steps to ensure that they are in place.'' Skip another two pars. ""The NKF also has an audit committee as well as an internal audit dept to ensure financial transparency in its affairs.'' You can take it from me that the word 'transparent' or "transparency' is used on many many occasions in this letter from your vice-chairman. Would you agree with me that the NKF since 1999 and until today has continued to take the position that it is transparent?
A: Yes, we have tried to be as best.
Q: Would you also agree with me that there are detractors who take a different position?
A: Yes.
Q: And that these detractors take the view that there is less than acceptable transparency on the part of the NKF?
A: Yes.
Q: And they would be entitled to take that view, is it not, because it is a matter of opinion?
A: Yes.
Q: Therefore, if this court were to find that all that the article meant was that there was controversy over your finances or the use of donations and that there is a lack of transparency, that is a comment which anyone is entitled to make.
A: Yes.
Q: Right?
A: Yes.
Q: And that if the court finds that the meaning that we have attributed or ascribed to the article is the true one, you would accept that as comment, right?
A: Yes.
Q: Thank you. Would you not agree with me that this controversy over transparency and use of donations arose as a result, among other things, of the way NKF spent its money?
A: Not necessarily so. It is also because of the way NKF operates itself.
Q: Right, so it is one of the reasons, right?
A: One of the reasons.
Q: Indeed this entire issue of transparency in 1999 arose because of the allegations of air travel.
A: Yes.
Q: Therefore of how NKF spent its money.
A: Yes.
Q: Correct? And in relation to the Internet crackdown, the allegation there was also in relation to how NKF spent its money, right?
A: Yes.
Q: If you look at 127 of the core bundle, you will see that a woman who sent a defamatory e-mail had to pay $50,000 in damages and legal costs and made a public apology, right?
A: Yes.
Q: Another one. At the eight or ninth par, you will see what she said which caused her to fork out 50 grand. She claimed that the NKF did not help the poor and needy, paid its staff unrealistically high bonuses and urged members of the public not to donate money to it. Why was she sued for that comment?
A: That is another...
Q: You said people are entitled to take a view about whether you are spending the money rightly or wrongly. Why was she sued for expressing that view?
A: No, can I explain?
Q: Please.
A: She also made the allegation that her brother-in-law applied for dialysis treatment and we did not want to accept her brother-in-law.
Q: Did you also sue her for this portion that I have read?
A: Yes, we sued her for everything.
Q: Why did you sue her for this portion when you are telling this court that it is fair for people to comment on how you spent your money?
A: We basically sued her for this allegation actually.
Q: I do not understand the answer at all.
A: We basically sued her for the allegation she made that her brother-in-law applied for dialysis and we never wanted to treat him. In her e-mail, Madam Tan claimed that her brother-in-law's application to NKF for dialysis treatment had been rejected.
Q: Look at what Alwyn Lim says at page 128. Do you have that page?
A: Yes.
Q: You are very familiar with this letter, are you not?
A: Yes.
Q: Is it not clear from the thrust of this letter that Alwyn Lim was defending the action arising from the comment on bonuses and that it didn't help the poor and needy? Look at it.
A: Can you refer to that. Which par?
Q: Take the whole letter, just look at the whole letter.
A: Yes.
Q: It is about the fact that you are completely transparent.
A: Yes.
Q: And that you do help the needy?
A: Yes.
Q: Right?
A: Yes.
Q: Therefore it follows, does it not, as a matter of simple logic that the grounds for which you took action were that she said you paid unrealistically high bonuses and did not help the poor and needy?
A: No, she made a specific allegation that her brother-in-law's application to NKF for dialysis treatment had been rejected and I would not know the contents of it but this is one of the things she said.
Q: Again it is true, is it not, that how NKF spent on its salaries was an issue?
A: Yes.
Q: And it was a matter which the public was entitled to comment on.
A: Yes.
Q: And likewise the media.
A: Yes.
Q: Is it also true that since 1999 many people have been asking NKF to disclose the salaries of its senior people?
A: Some people.
Q: And that it is an issue which has not gone away.
A: Yes.
Q: And the NKF has taken the position that it will not disclose it, right?
A: Yes.
Q: Tell us why.
A: I feel personally that salaries are a very personal thing and I am a private person, I do not want my salaries to be disclosed. I have disclosed...and it would be difficult for me to recruit people. It is so difficult to employ people to work in a charity and I have sounded out my other colleagues who work with me. They are very resistant to this and some have threatened to resign. Working in a charity is very difficult...compared to working in a commercial entity and if you want to recruit people from abroad to work in your institutions, they will not agree to such terms. So I took the view that this is not something that is critical.
Q: Now, you say that it would be difficult to recruit people if they became aware that their salaries will be published, right? You did not have to recruit yourself because you were a diehard NKF man, right?
A: Yes.
Q: And you have been almost your entire working life?
A: Yes.
Q: And you are committed to the cause no matter what?
A: Yes, I am committed to the cause.
Q: That does not apply to you, right?
A: But as I said...
Q: Do you or do you not agree that that reason does not apply to you because as far as you are concerned, it is not a question of recruiting yourself, you are there and you are going to stay there no matter what. So publicising salaries does not affect you.
A: As I said earlier to the court, I am a private person, I would not want my salary to be disclosed. I have not been required by the law to disclose the salary, so I do not see any legal requirement to disclose the salary, so I did not disclose.
Q: So now there are two reasons. One is your privacy?
A: Yes.
Q: And secondly there is no legal requirement?
A: Yes.
Q: Tell us, is there a legal requirement for you to put out all the information which you have put out in your investment report to yourdonors?
A: No.
Q: Therefore, despite the fact that there are no legal obligations to disclose, you do it, right?
A: Yes.
Q: So therefore the absence of a legal obligation to disclose your salary cannot be a reason for not disclosing it?
A: But it is a question of your personal choice because I mean, I lead a very...it is a personal matter, your honour.
Q: Yes, so we now come to the one reason, which is the privacy?
A: Yes.
Q: I do understand some of that because that is why people travel first class and have lavish suites for their privacy. But let me just ask you is this not people's money that is going towards your salary?
A: The people contribute the monies for me to work for them to achieve the altruism.
Q: Let me ask you. If another organisation mirroring what you have done pays its CEO $25 million, a year out of donations, is that something the public should know?
A: I cannot comment on that.
Q: Yes, you can. You have spent about 50 to 60 pages of your affidavit explaining your involvement in the charitable sector, your deep and intimate knowledge of what moves this sector and what is important for it. So I am asking you, as a man very experienced in the field, if a charity pays its CEO $25 million funded by donations, should the public know?
A: It depends on the board of directors.
Q: I am asking you. The board is not in the stand. You are.
A: I have no comments to make on this, your Honour, because it is a matter for each organisation to decide.
Q: I am asking you again, you as the CEO and a director of the board, what would your position be on the board if this question arose?
A: I would not.
Q: Sorry?
A: I would not.
Q: You will not disclose?
A: I would ask the person concerned what is his preference. I would respect him.
A: So you will not tell the public even though it is $25 million, right? Let me take another example. What if, in your view, the $25 million is grossly grossly exorbitant but you are outvoted on the board and he is given $25 million? In other words he does not deserve $25 million for what he is doing. Does the public have a right to know?
A: I cannot comment on that.
Q: I'm asking you to comment.
A: It is for the board to decide. Every organisation has a structure.
Q: Therefore you are saying that if the board decides to overlay a shroud of secrecy, you will go along with it, right?
A: I'm not saying that. I think I will go along with the board's decision. I report to the board.
Q: Now, you mentioned privacy.
A: Yes.
Q: In your affidavits, you likened yourself to CEOs in companies and ministers in the government, right? I can show you if you want.
A: Not CEOs of companies. I work like them.
Q: Yes. You also liken yourself to ministers in the government. Do you remember that?
A: In what way?
Q: In terms of transparency.
A: I cannot recall that.
Q: Would you agree with me that like ministers in the government, you are being paid out of people's money,?
A: Yes.
Q: Would you agree with me that ministers' salaries are transparent?
A: Yes.
Q: Would you agree with me that CEOs of listed companies have their salaries published in the newspapers?
A: I believe so, yes.
Q: And you have likened yourself to CEOs of public companies. Why are you not publishing your own information?
A: No, I...
Q: Yes?
A: As I was saying, I like my salary to remain private. My board members know that, my senior colleagues know that.
Q: We all like our salaries to be private.
A: Yes.
Q: But if it is funded by the public, which takes precedence? The right of the public to know how much of their money goes to you or your preference for privacy?
A: I think it is for the board to decide what is the best interest of the organisation. The public does not control the organisation.
Q: Exactly. Exactly. You see, Mr Durai, the public does not control, it does not have access to information, so does that not place a responsibility on you?
A: No, the rules are set by the regulatory authorities of Singapore. We comply with all the requirements of the regulatory authorities of Singapore and we have done this all the time. If the regulatory authorities impose a condition that we have to disclose salaries, we would.
Q: You see, Mr Durai, could you tell this court what your salary and bonuses were for 2002?
A: I was earning a monthly salary of $25,000.
Q: And your bonus?
A: The bonus was to the effect of eight to 10 months.
Q: Ten months bonus?
A: Performance bonus.
Q: Ten months' bonus?
A: I think the numbers have been given. You have got the numbers with you, I think. I cannot recollect.
Q: A $250,000 bonus. This is for 2002?
A: I cannot recollect the exact figure. I think you have the figure with you.
Q: If it is $25,000 a month multiply that by 12, you get $300,000, plus another $250,000, so your total package was $550,000 in 2002?
A: I believe so.
Q: 2003, please.
A: You have the numbers. I do not have the numbers offhand here.
Q: I would expect you to remember the numbers. Tell us, please, so that we do not waste time. What did you get in 2003?
A: About the same I believe. I cannot tell you offhand, your honour.
Q: About the same.
A: About the same.
Q: Meaning either $550,000 or slightly higher?
A: About that.
Q: How many months' bonus did you get in 2003?
A: Twelve months, I believe.
Q: Twelve months, okay.
A: Yes.
Q: So that's another $50,000 more. 2004, what was the bonus?
A: Similar bonus.
Q: Twelve months?
A: Yes.
Q: At $25,000 a month?
A: Yes.
Q: So for the past three years, you have earned about, what, $1.8 million?
A: Yes.
Q: From the NKF?
A: Yes.
Q: Should the man who earns $1,000 a month, who takes out $50 of his pay packet every month, thinking that it is going to save lives, not know that this is the kind of money you earn?
A: There is nothing wrong with the money I earn.
Q: I am not even talking about anything wrong. Please do not be defensive.
A: I am not.
Q: $1.8 million. I wonder what is wrong. $1.8 million. Should the man who takes $50 out of his pocket, out of that $1,000, leaving $950 for him, his wife and his children, with no savings, thinking that he is saving a fellow Singaporean in the bed suffering from dialysis, should he not know that some of that money is going or has gone into a $500,000 to $600,000 pay package for you?
A: Surely he knows.
Q: Tell me how does he know. Please show us that document to back up that statement that you've made on oath. ""Surely, he knows''. Please do not run away from that. You said surely he knows. Back it up.
A: Let me explain. People donate monies to the NKF to run a dialysis programme to save lives. We have built a dialysis programme. We run...
Judge: Please answer the question.
Q: You said ""Surely he knows.'' Answer that and back it up.
A: No I am saying a person who contributes to the foundation knows that there are people working in the institution. That is how I answer the question, your honour.
Judge: No. The question is should that person know that you are earning $500,000 to $600,000 a year? It is a simple question.
A: No, your honour. I do not see a need for him to know.
Q: Thank you. It has nothing to do with privacy, it is about embarrassment, is it not?
A: No.
Q: Because if that man knew that that is what you were earning, you would lose all authority or moral authority to look him in his eyes, is that not right?
A: That is not true.
Q: If he knew that over and above this half a million to $600,000 you were flying first class on his money, you would not look him in his eyes, is that not true?
A: That is not true.
Q: If he knew that his salary could not even buy the bathroom fittings in your private office suite, you could not look him in his eyes.
A: That is not true.
Q: Which is why we now understand...because I was having great difficulty with this...that you say a $990 tap is not expensive. Well, coming from you at $600,000 a year, we now understand why you say it is not expensive. But tell me for that man with $1,000, $2,000, is it expensive? Tell us please.
A: Yes, he may consider it expensive.
Q: He may or is it? Tell us the truth.
A: I cannot speculate that. That depends on the type of building, the use of the item. I cannot speak for him.
Q: The man in his HDB one-room, two-room, three-room flat on the salary of $1,000, $2,000, $3,000, would he find that tap at $990 plus 10 per cent discount expensive?
A: He may consider it expensive, yes.
Q: He may or will he? Please, Mr Durai, let us move on.
A: If he is an educated person, if he knows the use of the particular office, for what purpose, he may probably think it is something that is reasonable.
Q: Mr Durai, you therefore agree with me, don't you, that every cent that the NKF spends is a matter of public interest?
A: Yes.
Q: Yes?
A: Yes.
Q: Not only public interest but legitimate public interest, not mere curiosity but legitimate public interest.
A: Yes.
Q: That includes expenditure on salaries, bonuses, tickets, fittings, etc. right?
A: You have to use it judiciously, yes.
Q: Therefore, would you accept that the newspapers have a duty to communicate these facts of expenditure to the public?
A: The newspapers, yes but I do not think...I would not say it is a duty. The newspapers may take an interest in doing so.
Q: No, we are not talking about a morbid or curious interest. I am saying that, according to you, every two out of every three Singaporeans donate?
A: Yes.
Q: And, according to you, your expenses are a matter of public interest.
A:
Q: And I suggest to you the way the public learns of information is through the media?
A: Yes.
Q: Would you not agree with me that the media has a legitimate duty to inform the public about NKF's expenses?
A: Yes.
Q: And would you not agree with me that the public has a legitimate interest in learning of this information?
A: Yes.
Q: Thank you very much. Now, coming back to your salaries, why is it that although your salary was an issue in this action, you repeatedly refused to come clean on what you earn? Why?
A: I have disclosed my salaries.
Q: Let us take look at whether you disclosed your salaries. Pick up the setting down bundle. You were aware when we filed our defence that we had put your salary into issue.
A: Yes.
Q: You were aware. Therefore, as a lawyer, you know that once it is in play, it is a matter on which both parties have to come clean, right?
A: Yes.
Q: Therefore the issue of privacy is no longer relevant, right?
A: Yes.
Q: Can I invite you to turn to tab 5 of that bundle? This is your answer to our request for more particulars arising from your reply. Can you go to page 27 … we asked a question about your salary at question 45.
A: Yes.
Q: Do you see that? Look at your answer at page 28. What did you say?
A: I said...
Q: They were not relevant?
A: Yes.
Q: Right? Go to tab 7, page 6. I beg your pardon. I should also show the witness something else, page 26, tab 5. You have pleaded that NKF seeks to recruit able talented employees and pay what they consider to be reasonable salaries?
A: Yes.
Q: So we asked, in relation to the reasonable salaries, indicate the range of salaries paid to the employees in relation to each position held. Your answer again was ""irrelevant''; correct?
A: Yes.
Q: Then go to tab 7, page 6. We asked again -- in fact, because you did not give it to us, we had to apply to court again incurring further costs. We asked at page 6, please tell us what are the salaries earned by the employees? Look at your answer at page 7. You gave everybody's except yours; correct?
A: Yes.
Q: Why, Mr Durai? Why did you not give yours? Why did you make us go to court, incur costs, expose NKF to costs because you had to pay costs to us? Why? Just to protect your salary? Why?
A: As I said, I always valued my privacy.
Q: You see, Mr Durai, now your privacy is at the expense of NKF. In other words, even though it meant NKF having to pay costs to SPH for refusing to give salaries and for being ordered to do so, you do not give your own salary. Why is that?
A: As I said, I valued my privacy and I --
Q: But you agreed with me that once you come into court, there is no longer an issue of privacy. It is a matter of full disclosure of what is relevant. What you have done is you have given everybody else's range, forgetting their privacy, and yours,
you have not. Your answer is, ""At the discretion of the board.'' Why? Is your privacy more important than your officers'?
A: I valued my privacy. That is so.
Q: Thereby forcing us to go back to court and to incur even more costs; is that not right?
A: Yes.
Q: And because we did that, we got another order of court, causing more costs to be incurred by NKF. Please turn to tab 9, page 3. It was only at that third try that you finally disclosed your salary; correct?
A: Yes.
Q: It is not a matter of privacy. It is just embarrassment. Do you agree?
A: No.
Q: Let me move on. The controversy that I spoke about earlier and the issue about whether NKF is transparent continued right through early 2000 to 2004; correct?
A: Yes.
Q: You are aware, for example, that three years after the debate in parliament that I just showed you, in 2002, at the Committee of Supply, the Deputy Speaker, Mr Chew Heng Ching, again raised this issue of transparency and accountability; right?
A: Yes.
Q: You are not suggesting that SPH's reports of all these issues are part of some agenda?
A: No.
Q: In fact, they cannot be because you have agreed with me earlier that it is a matter in which the public has a legitimate interest; right?
A: Yes.
Q: In the year 2004, NKF went into or discussed a deal with Aviva; right?
A: Yes.
Q: Again, you are not going to blame SPH for that discussion; right?
A: No.
Q: That discussion between NKF and Aviva concerned how the NKF can, for a fee, assist Aviva in its commercial objectives; right?
A: Yes.
Q: In other words, to be more specific, and correct me if I am wrong, how Aviva can leverage on your data bank of donor information to push out commercial information about them without necessarily knowing the information; right?
A: Yes.
Q: Would you not agree with me that it is newsworthy?
A: Yes.
Q: It is, is it not?
A: It is.
Q: So when The Straits Times picked up on this story, they were fully entitled to report on it; would you agree?
A: Yes.
Q: Can I take you very quickly to the articles, just to show you the dates. If you go to the core bundle, defendant's core bundle, you will see that it starts at CB155 and it goes to CB159.
A: Yes.
Q: If you look at the headline, it says at page 155: ""Aviva to tap NKF for referrals; the cash-for-clients deal will target people who donated or had health checks, and staff.'' Is that right?
A: Yes.
Q: At page 157, 3rd April 2004, the headline is: ""Creative move or invasion of privacy? Insurer's deal to tap kidney foundation's database gets strong reactions that range from thumbs up to moral outrage.'' Is that right?
A: Yes.
Q: Do you accept that this fairly summarises the differing views taken by people about this arrangement?
A: Yes.
Q: On the one hand, there were those who complimented you for your creativity, and on the other hand, there were those who were outraged that information given to you for one purpose was being used by you for another?
A: Yes.
Q: Right? Then if you go to page 159, there is this article by Mr Narendra Aggarwal, 5th April, headline: ""Aviva's "not buying NKF's donor list'. Proposed deal to custom-design products for donors and patients will not compromise privacy.'' You have agreed with me that this controversy was created by thearrangement that you intended to or entered into with Aviva; right?
A: The controversy was created by the article that came out on April 2nd, giving the impression that we were selling our database.
Q: But as you earlier said, this arrangement with Aviva was not of SPH's making; it was your making?
A: Yes.
Q: And they were fully entitled to report on it?
A: Yes.
Q: Correct? Could you now go to paragraph 146 of your evidence-in-chief … do you have it?
A: Yes.
Q: You say: ""It is also important to see the article in the context of the 1st defendant's other publications about the NKF at the time. The defendants contend that there was then a public "controversy' surrounding the NKF and its practices, and that it was "published in the local press' and "given prominent coverage in the local press', but on closer analysis, it is apparent that the only "controversy' then existent was one wholly manufactured by the defendants themselves and publicised through its own publications using its own stable of reporters.'' Then in the next paragraph, you refer to the Aviva articles in (a), (b) and (c)?
A: Yes.
Q: But you know that that is not true?
A: No, as I said earlier, the article of April 2nd gave a wrong impression to the Singapore public that we were selling out data to a company and it created that controversy.
Q: You see, you intended here to suggest, by the use of the word "wholly manufactured' that SPH created a controversy where none existed. Is that your present position, sir?
A: No, I do not agree with that.
Q: No, I am saying that that is what you suggest. Is that your present position, that SPH created this controversy where none existed, by the use of the words "wholly manufactured'?
A: No.
Q: It is not your position because you have accepted, have you not, that all SPH was doing was reporting on an arrangement between you and Aviva, which arrangement you accepted created contrary views across the spectrum?
A: But creating a wrong impression.
Q: A wrong impression?
A: Yes.
Q: If it is a wrong impression …
A: Which created a controversy.
Q: Right. If it is the wrong impression, did NKF put it right?
A: Yes, we got Mr Keith Perkins to write.
Q: Sorry?
A: We got Mr Keith Perkins to write in, and Narendra Aggarwal replied to it.
Q: Therefore, you were given your say, were you not?
A: Yes.
Q: And NKF's point of view was given due publicity, right?
A: Yes.
Q: Notwithstanding that, there were two different views?
A: Yes.
Q: Therefore, after the public knew what NKF's position was, there remained this difference of opinion?
A: Yes.
Q: This controversy?
A: Yes.
Q: You do not really mean that this was wholly manufactured by SPH. Surely, Mr Durai?
A: Yes, I do not think so.
Q: Thank you very much. Would you also agree with me, since we are on this point, that SPH did not manufacture the controversy relating to your reserves because you have alleged that?
A: The reserves issue was also brought up by SPH in the papers.
Q: Answer my question.
A: Yes.
Q: Is it still your position that SPH manufactured this controversy relating to your reserves?
A: Yes.
Q: It is? Right. Then let us start. Was it SPH who initiated the story of the reserves?
A: The SPH reported articles in Salt magazine.
Q: The story on the reserves came out in another journal; right?
A: In a small publication.
Q: Called Salt?
A: Yes.
Q: S-A-L-T?
A: Yes.
Q: In that journal it was reported that NKF's reserves were $189 million as at 2002?
A: Yes.
Q: Clearly, that is information which is of tremendous public interest?
A: Yes.
Q: If that is correct, you must accept that The Straits Times would then have a duty to communicate that information to the public at large?
A: Yes, from your explanation, you are right.
Q: Therefore, SPH was only doing its duty?
A: You are right.
Q: They did not manufacture a story out of thin air to do you in, right?
A: You are right.
Q: Thank you very much. When we put all of this in context, you would accept, would you not, that what SPH was doing was merely picking up on stories which you accept to be of tremendous public interest, and discharging their own duty by communicating this information to the public who had an interest in reading it?
A: That is so.
Q: Thank you very much. Therefore, to the extent that you allege that we manufactured this controversy or were crusading against you, and therefore were malicious, you withdraw that?
A: Yes, I would withdraw that.
Q: Thank you very much. And you would likewise withdraw the allegation that SPH had an agenda against you?
A: Yes, I would think so.
Q: Thank you very much, sir. The reserves story created quite a bit of controversy, did it not?
A: Yes.
Q: And rightly so, in the sense that people were entitled to take strong views.
A: Sure.
Q: In fact, what happened after the reserves story was published was that there were very very strong views expressed against the accumulation of those reserves as well as views published or expressed in support of that objective, correct?
A: Yes.
Q: And the SPH and the Straits Times gave a balanced report or reports of both sides of the story?
A: They reported both sides, yes.
Q: They did. Nothing that they said was false because if it was false, you would have sued?
A: Yes.
Q: None of their comments were malicious because if they were, you would have sued?
A: Yes.
Q: Thank you. The upshot or one of the upshots of the Salt article was that the public has a right to know so that there is informed giving, right?
A: Yes.
Q: I will not trouble you with all these letters, but you would have seen it in the evidence. SPH received a deluge of email from the public, very very unhappy that there was $189 million worth of reserves in the NKF, right?
A: Yes, some of the people have written.
Q: What people were upset about as well was how much money of their donations per dollar was going to saving lives?
A: Yes.
Q: There was a very strong sense that they did not have the requisite information; do you agree?
A: Yes.
Q: You therefore must agree that as a result of this feedback, SPH had a duty to continue pursuing the story of the reserves and how they were put to use?
A: Yes.
Q: Would you not agree with me that in the articles that SPH and Straits Times published, including the very article itself that you are suing on, they were merely discharging that duty?
A: Yes.
MR SINGH: Can I just have a few minutes, your Honour?Court: Certainly.
(A short adjournment)
MR SINGH: Thank you, your Honour. Mr Durai, coming now to the events leading up to the article. You had agreed with me before the break that SPH had a duty to write the article and that the public had an interest in reading about it. Would you agree with me that in the course of writing that article, or for the purposes of the article, Ms Susan Long, the 2nd defendant, did interview NKF's officers?
A: Yes, she did.
Q: Could I, in this regard, ask you to look at your evidence-in-chief at paragraph 149.
A: Yes.
Q: At paragraph 149 you say that Ms Susan Long visited the NKF centre on 14 April to conduct interviews. You were introduced to her, expected her to ask you questions, which you would have been willing to answer, but she ignored you. Can I suggest to you that that is not right because it had been made plain to her that you did not want to be interviewed?
A: Yes, but I was there and I was prepared to answer questions if she wanted me.
Q: But did you not also make it quite plain that you refused to be interviewed?
A: No, I told my colleague Michelle that the best people to be interviewed would be others.
Q: No, because here you see, in this paragraph 149, and that is why I need to deal with it. You give the impression that you actually expected questions, you were willing to answer them but to your surprise she ignored you, suggesting that here you were willing to come forth, but she did not want to talk to you. But is it not the true position that you had said that you did not want to be interviewed?
A: Yes, possibly, because she did not want to ask me questions, yes.
Q: Right. In fact, that is what you say in your amended reply. If you go to the set down bundle, tab 2 is the amended defence?
A: Yes.
Q: If you go to page 47 of tab 2, you will see at (m), our defence, where we say: ""The 2nd plaintiff (that is you) refused to be interviewed by...(Ms Long) for the article.'' Your response to that is at tab 3, page 18, subparagraph 13?
A: Yes.
Q: Where you admitted that you considered it unnecessary to be interviewed as you had already given access to other key employees; right?
A: That is true.
Q: Thank you very much. In the course of writing the article, Ms Long came to learn from a source about the fittings in the bathroom. You know that; right?
A: Yes.
Q: We now know the source is Mr David Tan; right?
A: Yes.
Q: At this time in 2004 April, you were in a building, you were on the 12th floor?
A: Yes.
Q: Which was a different floor from the one you were occupying in 1995?
A: Yes.
Q: And you had been occupying this present building in 2004 for about four to five years?
A: That is so.
Q: From May 1999, I think?
A: Yes.
Q: And there is a bathroom attached to your office, right?
A: Yes.
Q: You know, do you not, that there was no incident in the existing bathroom where installations were replaced; right?
A: Yes, I do not recall, correct.
Q: The only incident where installations were replaced was in 1995, in the other building?
A: Yes, on recollection, yes.
Q: Right?
A: Yes.
Q: The article was supposed to come out on 18 April?
A: Yes.
Q: On that day, the NKF had a fundraising, right?
A: Yes. It was on a Sunday, yes.
Q: Clearly, if SPH had harboured any malice or wanted to damage NKF, the article would have come out on that day, and that you would later complain would have had an effect on the donations; right?
A: Yes.
Q: Is it not true that SPH withheld the article until after the show?
A: From the AEICs given, it is so, yes.
Q: That puts paid to any suggestion that there was any malicious intent to damage NKF in the fundraising; right?
A: To the fundraising, yes, for the show.
Q: Yes, for the show. It is important because in these shows you raised $6 million in one shot; right?
A: Yes.
Q: That article was held back to the 19th because, as you now know, attempts were being made to contact your PR department to verify the story?
A: Yes.
Q: About the installations. Do you remember that?
A: Yes.
Q: I would like to just show you the sequence of events in relation to this. On 16 April..
A: Which document? Which bundle?
Q: I will take you to the document, if it is necessary, because I do not want to waste time, but if you want to look at the document, ask, and I will show it to you. On 16 April, Susan Long sent an email to Juliana Khoo at nfks.org?
A: Yes.
Q: A typo with the email address. If you want to see the document, it is in the core bundle, the defendant's core bundle, page 252.
A: Yes.
Q: She had learnt about the information about the private bathroom, and she asked a question about the gold taps, the gold-plated taps?
A: Yes.
Q: But you have come back to say, in this action, that that email was sent to the wrong address?
A: Yes.
Q: You are not suggesting any malice or anything; right? It is obviously a typo?
A: Yes.
Q: Thank you. Then this was followed up by another email on the 17th, which is at page 253?
A: Yes.
Q: Not having heard about what was happening, Ms Long decided to pursue this matter, and if you look at that email at page 253, what she does is she quotes the earlier email at the bottom?
A: Yes.
Q: And then she says -- at the top ""Hi, please see, they are holding story for Monday now. Can you get response back to me asap?'' This was 17th April.
A: Yes.
Q: You also know that Ms Khoo had a conversation on the phone with Ms Long about this?
A: Yes.
Q: Instead of answering the question about the tap, Ms Khoo asked her who the contractor was. You know that; right? If you want to see that, it is at page 254, the next page in the bundle.
A: Yes.
Q: Right?
A: Yes.
Q: Juliana Khoo to Susan Long, 18th April: ""Hi Susan Since you can't give us details of the contractor or which part of the construction of the building he was involved in, it is difficult for us to give an answer to enlighten your readers. Nobody, under the guise of anonymity, can make any claims. And such unsubstantiated claims will only make our mission to save lives even more difficult and complex. As far as the 12th floor is concerned, it houses the offices of the chairman, the CEO, the boardroom and meeting areas. The last two are also used by staff for presentations, discussions and meetings. Thank you once again for your email. We are going off to get ready for the show...'' That was the answer. You were aware that that was the answer that was going to be given and was given; right?
A: I was not aware of this.
Q: Were you not aware that there was a query or question about these fittings at that time?
A: I was asked about it.
Q: By whom?
A: By Juliana.
Q: What was your response?
A: I told her that there was no such incident, and I told her: could you check?
Q: You said that there was no such incident, and you asked her to check?
A: Yes, because she told me this Susan Long had contacted her regarding a contractor doing some work on the 12th floor of the building, and I said it was bizarre to me at that point of time.
Q: Thank you. Could you please tell us why then if it was so bizarre, and there was no such incident, NKF did not respond to say that, to deny the story?
A: The point is this. We did not know … this particular person could have dealt with some other employee in the organisation or some other subcontractor in the organisation. We would not know.
Q: No, Mr Durai, my question is: this is your office?
A: Yes.
Q: You have been occupying it for five years?
A: Yes.
Q: You know that the installations there had never changed?
A: Yes.
Q: The point was, to use your word, bizarre?
A: Yes.
Q: You told her there was on such thing?
A: Yes.
Q: We were asking about the 12th floor?
A: Yes.
Q: Why could NKF not have replied to say, ""It is false. There is no such thing.'' ?
A: I believe Ms Juliana Khoo had informed the reporter that the building was not around at that time she was talking about, I gather from the evidence. She had told her that. But --
Q: No. My question was a very simple question. You knew the answer --
A: Yes.
Q: It was bizarre. Why could you not say there was no such thing when you told Juliana that? Why not just tell the press that that was rubbish?
A: I was busy with the show at that particular point in time. When Juliana Khoo asked me about it, that is what I told her.
Q: Yes, so why is it that Juliana did not tell the newspapers that there was no such thing?
A: Juliana wanted to probably investigate the matter. I would not know.
Q: What is there to investigate? She obviously does not distrust you, does she? Does Juliana distrust you?
A: You should ask her that question, why she did that.
Q: As far as you know, does she?
A: No, she does not distrust me.
Q: You are her boss?
A: Yes.
Q: You tell her it is bizarre, there is no such thing?
A: Yes.
Q: What is there to investigate? She would just merely reply, and say ""deny'' and the story would have just died. Why was not that done?
A: As I said, I just told her.
Q: Is not the truth that you knew what Susan Long was referring to, had got the building wrong, and decided to fudge?
A: No, that is not true at all. That was 10 years later. I would not know what actually happened because the allegation was the 12-storey building, this particular building, I was in the midst of the charity show, and it was something outrageous. I didn't know anything. I just said no, nothing of this sort, and there was no intention of me to fudge anything at all.
Q: It would have been elementary to get the answer if the reference was to the 12th floor of the present building; right? Elementary. Would you agree? It would have been elementary, it is simple, to just check. Take the lift up to the 12th floor, check whether there were any gold tap that is replaced, and that is it. Because you have been there, you know. In fact, you have just said it was bizarre?
A: Susan Long could have checked it herself.
Q: She was checking with you, NKF, the people who would know. She was giving you all the opportunity to say whether it was true or false. You say you knew it was false. Why did you not tell her that?
A: No, I had no communication with Susan Long at all. My colleague was dealing with Susan Long. I was busy with the charity show at that point of time.
Q: Why did you not tell Juliana to say that there was no such thing?
A: I told Juliana. Juliana, there is no such incident. You may please want to check for the reporter because people make allegations against the NKF. It is our duty to check and answer if it is possible. That is what actually happened.
Q: Can you turn to the setting down bundle at tab 3, page 25, your reply. You say that SPH failed to take reasonable steps before they published the article?
A: Yes.
Q: This is what you say: ""Having regard to the gravity of the allegations being made against the plaintiffs and the fact that there was no urgency in publishing such allegations, particularly to the public at large, it would have been reasonable and responsible before contacting the plaintiffs for the 2nd defendant to (a) have discovered whether the contractor was telling the truth, by checking out the floor
and building where the work was allegedly done...'' What you are saying is all Susan Long had to do was to go to the floor of the building and she would have got the answer; right?
A: Yes, she could have checked, many other ways. One of the ways would be this.
Q: Correct, and that would have been elementary, if you use the word that you used in the last but one line of that page, right?
A: I do not get you, I am sorry.
Q: You say: ""If the 2nd defendant had taken these elementary steps...''
A: Yes.
Q: So it was elementary for Ms Susan Long to go to the 12th floor, walk into the bathroom and she would have got the answer; correct?
A: Yes, she could have done that if she wanted to.
Q: My question to you is: she is in SPH's building?
A: Yes.
Q: You are at NKF?
A: Yes.
Q: Why could you not have done that?
A: The point is this. At that point of time, as I said, we were doing the show. She had come to our building, we had given access to her at any point of time.
Q: We all know that this issue arose after the interview. You are in the building, maybe even in the office. Why could you not have done what you say Susan Long should have done.
A: This is what I told Juliana. I was busy with the show. I had no time --
Q: In fact, you did not even have to do that because you knew that there was no such thing on the 12th floor of the $21 million building?
A: Yes, there was no such thing at that point of time, yes.
Q: Let us see your answer to why you did not give an answer at that time.
A: Yes.
Q: Go to your evidence-in-chief, page 60, paragraph 150: ""Three hours later, I again went to the room where she was conducting interviews and this time too she ignored me. Days later, she sent an email to my colleague Juliana Khoo asking for a quick comment on an alleged incident involving installation of gold-plated taps in my office on the 12th floor. 151. On this occasion, and for four reasons, I decided not to be interviewed by her. (a) One, I could not provide a quick comment on an anonymous, unsubstantiated and unparticularised claim...'' Pause here. That is false, because in evidence today, you said you did give an answer, which is ""no, there is no such thing''?
A: That is what I told Juliana.
Q: If that is what you told Juliana, then paragraph 151(a) is false. Do you agree?
A: No, I also felt the same way and I told Juliana that.
Q: My question is: if that is what you told Juliana, paragraph 151(a) is false; do you agree?
A: +I do not get your question, please.
Q: It is simple. Here you said you declined to be interviewed for four reasons?
A: Yes.
Q: One, you could not provide a quick comment on an unsubstantiated, unparticularised claim. In other words, it is so vague --
A: It is true --
Q: One second. How can I comment? But today you say it was bizarre. I told her, ""No such thing''. You gave your answer without having any doubt?
A: When the question was asked of me --
Q: So my question is: would you agree with me that what you have said in evidence today is inconsistent with paragraph 151(a)?
A: No, I could explain that. When Juliana asked me for the first time, I told her, look, no such incident. Then I asked her to check on it. And I cannot comment on something where there is no proper allegations are made --
Q: Nowhere in paragraph 151 do you say you asked her to check; do you agree?
A: I did not say state that, yes.
Q: That is the second inconsistency between your evidence today and paragraph 151; correct?
A: No. What actually happened is I told her so.
Q: Thirdly, look at paragraph 151(b): ""Two, she had already been given access to the NKF's chairman, treasurer and other key employees...'' How is that relevant to installations in your bathroom, Mr Durai?
A: She could contact them and speak to them. She was dealing with them for three hours.
Q: This is your bathroom?
A: No, anybody, my colleagues use my bathroom. This is for everybody's use.
Q: Paragraph (c): ""Three, this was just hours before the second part of the NKF Charity Show, the foundation's biggest and busiest fundraising event; and (d) Four, I assumed that the defendants would not publish any information without ascertaining its truth, more so since there was no hurry to rush publication of the
article the 2nd defendant had interviewed my colleagues for.'' Mr Durai, you knew that we held back publication for the 19th; correct?
A: I now know that.
Q: Juliana knew that. We saw the email; right?
A: Yes.
Q: Juliana knew that the article was coming out the next day. You had said no such thing and Juliana asked for the name of the contractor. That is what you would like the court to believe?
A: On a matter of such gravity, I would have expected the defendants to really check, verify, get the bills and everything to make the allegations.
Q: You see, it is actually quite straightforward. There was only one incident when installations were replaced, and that was in the two-storey building. You knew there was no such incident in the present building. Because you were aware of that earlier incident, you decided to play for time and fudge?
A: That is not true at all. Because --
Q: Because if there was no such incident, and you were confident of it, you would have said, ""no such thing''. The only reason you asked for the contractor's name is because you wanted to play for time?
A: That is not true, your Honour. Because this was an incident that occur so many years ago, and I was in the midst of a show.
Q: You see, Mr Durai, this is not the only occasion when the NKF has evaded and fudged, and tomorrow I will take you through the other occasions when that has happened.
A: This is the honest truth.
Q: You see, immediately after the article came out, you were able to deny it for the 12th floor of the $21 million building; is that not right?
A: I contacted the interior designer and asked him whether such an incident occurred. On getting information from him, I denied it.
Q: There was no need to do that because you yourself said it was bizarre, there was no such thing. There was no need for you to contact anyone?
A: I would not know because this incident may have occurred with the interior designer. Because it concerned my office, I have to check and find out whether any such incident occurred, and I checked with him, because insofar as I was concerned, no such incident occurred. I asked the interior designer whether he had any problems of such a nature. After getting information from the interior designer, we came out with this statement in the papers.
Q: I suggest to you … to round off this area, your Honour … that when you were confronted with that question, you were aware of what the question related to, and you decided that it was best not to deal with it for fear of what might come out?
A: That is absolutely wrong, because I have nothing to fear. I did everything what I could possibly do right.
MR SINGH: That is it for today.
NKF VS SPH: ST'S COURT TRANSCRIPT FOR JULY 11 - AFTERNOON SESSION
MR SINGH: Mr Durai, the defendants say...and I know you do not agree...that the article means that NKF is controversial and that there is a lack of transparency. I would like to talk to you about controversy for a moment if I may. Would you agree with me that there is and has for some time now been controversy surrounding NKF?
A: What do you mean by controversy?
Q: Controversy. In other words, a difference of opinion and views about the way NKF conducts itself, its finances, work practices.
A: Yes, from some quarters.
Q: In fact, you would accept that NKF has from time to time received criticism from the public and the media about its activities?
A: From some members of the public, yes.
Q: You also accept, do you not, that if this honourable court finds that all that the article means is that there is controversy surrounding the NKF, then that is not defamatory?
A: Yes that is not.
Q: Thank you very much. In fact, it is not your case also that the rest of the article, other than the six offending paragraphs you have identified are perfectly acceptable?
A: Yes.
Q: And therefore there is nothing in the rest of the article which is defamatory of NKF and/or to you.
A: Yes.
Q: Which is saying that to the extent that the rest of the article contains facts, these facts are true. To the extent that they contain comment, that is fair comment? Correct?
A: That's true.
Q: And also that in addition to the rest of the article, there is no malice.
A: I would not be able to comment on that.
Q: I am going to ask you to because you have, in this case alleged malice in your affidavit and in your pleadings. You've also said that there is nothing wrong with
the rest of the article, and you have just agreed with me that it is fair comment to the extent that it is comment.
A: The person may have written with malice, I wouldn't know.
Q: Right, but as far as you know there is none, right?
A: I cannot give...I cannot comment on that. I cannot read somebody's mind.
Q: I am asking you for what is in your mind. Do you consider that there was any malice in relation to the rest of the article?
A: Possibly.
Q: You do?
A: Yes, possibly.
Q: All right. Is it your case therefore that even though the rest of the article contained to some extent comment there was malice in relation to these comments that were reported?
A: No. There may have been malice, there may not have been malice, but we were not concerned about it because we were concerned about the defamatory words in the first six paragraphs. People can comment about the NKF. They have a different point of view. There is nothing wrong about it.
Q: You have in the past sued individuals for comments expressed about the NKF, have you not?
A: No, not exactly.
Q: You have not?
A: We have sued for wrong allegations.
Q: Right. And are not some of these allegations comment? And you had better think carefully before you answer that question.
A: No.
Q: They are not?
A: No.
Q: All right. In the rest of the article, if I might describe it as such, you were satisfied that it was not defamatory or that there was no basis to take legal action, right?
A: Yes.
Q: That must mean that you were satisfied that there was no malice to defeat the comment?
A: No, I did not consider the issue of malice. I did not...to me it didn't matter at all. I mean people may have written...some people write articles with good
intentions, some people write articles with malice. It did not bother me. It is a freedom of the press. If they want to write, they can write. But I cannot give you a definitive statement to say that she wrote it with malice or without malice.
Q: Thank you very much. The strange thing about your evidence today is that you appear to be unsure now about whether the remaining 54 paragraphs of that article were actuated with malice. But here is an organisation that is out to do you in, Mr Durai. Yet the overwhelming bulk of the article is perfectly acceptable.
A: No, I am not saying...I am saying if people want to write about the NKF, they can write. The remaining paragraphs, some of them were not fair on the NKF. We did not mind it. People have their views about the NKF, they can express them.
Q: The point is, Mr Durai, the reason you did not sue over the rest of the article is because it was fair and balanced, and it was honest in terms of the expression of opinion. Would you agree with that?
A: No, I mean we did not agree with some of the points there but we did not mind it. People can have their views, different views about it. You know you are dealing with a predominant press, you do not want to antagonise them unnecessarily. You resort to legal action when you really think you need to correct a wrong impression about the institution you represent.
Q: You had said that the rest of the article insofar as it was factual was true, correct?
A: I'm not saying it is true. I am saying they have written a lot of things there, which the person has a different viewpoint, different comment.
Q: I'm afraid I will have to refresh your memory. I asked you which is saying that to the extent that the rest of the article contains facts, those facts are true. To the extent that they contain comment, that is fair comment. Correct? Answer: That is true. Having had the opportunity of being reminded of your evidence, would you please confirm that you considered the rest of the article to be true insofar as it was factual, or would you like to change your evidence again?
A: No, I would say the remaining paragraphs of the article was something which I would accept. I will not agree with many of the contents...some of the contents of the article but it did not bother me.
Q: Answer my question. I just reminded you of what you told this court, and you are on oath.
A: Yes.
Q: You had said that to the extent that the rest of the article contained facts, they were true. Are you prepared to stand by your own evidence or would you like to change it?
A: I would like to change that because I do not agree with some of the points there. I did not mind them.
Q: Another change, Mr Durai. Let's look at the article and tell us what is false. The rest of the article apart from the six paragraphs. For your benefit I am using the...
A: I am not saying it is false. I am saying I do not agree with some of the points written in the article.
Q: I am now focusing on fact. Can I ask you once again...
A: Where is the article?
Q: The article is in defendants' bundle of documents, vol two at page 335.
A: Yes.
Q: What in the rest of the article, in terms of facts, is false?
A: One down side cited by former employees is...
Q: Sorry, which column, which paragraph is it? Page 335 or 336?
A: Yes.
Q: Which column from the left?
A: The second column.
Q: Which paragraph?
A: One downside cited by former employees...
Q: Is it the second column from the left?
A: Yes.
Q: On the right or the left?
A: Yes.
Q: On the right or the left?
A: Other people's money...you go to the 7th paragraph.
Q: Right, you're looking at the second column from the right?
A: Yes, yes.
Q: Not the left?
A: Sorry.
Q: It is all right. You are looking at the 5th paragraph from the top?
A: Yes.
Q: All right. ""One downside cited by employees is a corporate culture described as cagey, in which staff are discouraged from discussing finances.''
A: Yes.
Q: That is false?
A: No, it is not true.
Q: So, is it false?
A: You can take it...
Q: Right.
A: I do not agree with that. Some people may say that, but I do not agree with that.
Q: No, please, I think you should...
A: The point is...
Q: No, listen to me. You should assume that we understand the distinction between fact and comment. I am not talking about comment which you can agree with or disagree with. I am here asking you to focus on fact, which you say is false?
A: No, I am not saying it is false. I am saying I do not agree with this comment.
Q: Right, so can we now leave comment aside?
A: Yes.
Q: And focus on which facts in the rest of the article are false.
A: I will not say they are false.
Q: There is nothing there that is false in terms of fact. Thank you very much. What we have done is we have numbered the paragraphs for convenience. You will see the numbers by the paragraphs. Do you see that? In the defendants' bundle. That is the one that I am referring to. Would you look at paragraph 44, which is in the third column from the right at page 336.
A: Yes.
Q: It reads: ""For the record, Mr Yong...'' I think Mr Yong is the chairman, right?
A: Yes.
Q: ""...says, there is no such thing as first-class travel. Senior executives from directors up, including CEO Mr Durai, fly business class. The rest fly economy.''
A: Yes.
Q: Is that true?
A: No. The NKF pays for business class travel from Singapore.
Q: You see Mr Durai I will come to the way you have crafted your affidavit very very cleverly in a moment. I am just asking you a very simple question, which can be answered with yes or no.
A: No...
Q: Is this paragraph true or false?
A: I have to explain to the court that...
Judge: Can you answer the question and then give your explanation after that please.
Q: Is this paragraph true or false?
A: True.
Q: ""There is no such thing as first class travel. Senior executives from directors up, including CEO Mr Durai, fly business class. The rest fly economy.''
A: Yes.
Q: Is that true?
A: Yes.
Q: It is true?
A: Yes.
Q: You wanted to explain?
A: I wanted to say the NKF has a policy in which myself and directors upwards are given entitlement to travel on business class from S'pore. They are entitled to use the value of the ticket to pay or buy or get any ticket which may be a first class ticket somewhere else and travel on first class.
Q: Now, we are getting to the truth of the matter. Mr Durai, did you not threaten to sue an aeromodelling instructor and another gentleman Mr Archie Ong for saying that you travel first class?
A: Yes I sued them.
Q: Was that an honest threat of action and action itself? Was that honest?
A: Yes, because the NKF did not pay for my first class travel from Singapore.
Q: Right. Keep this page open because I am going to come back to it. Can I take you to what you did. If you would first go to my core bundle, the defendant's core bundle, at page 123.
A: Yes.
Q: According to this report in April of 1998, you obtained an apology, damages and costs because one Mr Archie Ong had said in a casual conversation to an NKF volunteer Mr Alwyn Lim that the organisation squandered money and that Mr Durai jets here and there in first class implying that he did so on NKF business.
A: Yes.
Q: And Mr Archie Ong apologised and withdrew the allegation of first-class travel unreservedly?
A: Yes.
Q: He also paid damages and legal costs, right?
A: Yes.
Q: And NKF's position was that the allegation was grossly untrue, right?
A: Yes.
Q: Could you turn to 124? Later, the same year the same thing happened. This time Mr Piragasum Singavelu, who had alleged that he saw you travelling first class on Singapore Airlines and according to you had insinuated that you sued NKF funds meant for patients. Do you remember that?
A: Yes.
Q: What you got from Mr Piragasum was an apology to the effect that he had lied and concocted false allegations, right?
A: Yes.
Q: Could you go to the 5th par? The apology that was drafted for him made him also say that his statements were mean, laced with venom and calculated to insult and humiliate Mr Durai without any just cause whatsoever and without any regard to the truth, right?
A: Yes.
Q: And he paid damages and costs.
A: Yes.
Q: You have to travel in the course of NKF business?
A: Yes.
Q: I assume that the directors feel that since you have to travel sometimes long distances for work you should have the comfort of business class?
A: Yes.
Q: Can we have a straight answer to this question and listen very carefully to it. Using NKF's fund have you travelled first class? A straight answer, you are on oath.
A: Yes, the NKF has not paid for...
Q: No, no. My question is very simple and the difficulty you are having answering it tells us a lot, but I will give you another chance. Using NKF's fund have you ever travelled first class?
A: No.
Q: Is that the honest truth?
A: I have travelled on...using NKF's funds on a business class entitlement. I have used it to travel first class.
Q: I ask you one more time.
A: Yes.
Q: Forget entitlement.
A: Yes.
Q: Money. NKF's money used, you travel first class?
A: Yes.
Q: You have?
A: Yes.
Q: Yes...
A: On a business class entitlement.
Q: Yet you sued, obtained damages and costs against two innocent individuals for saying exactly what you have just told the court today.
A: That is the difference because...
Q: I will show how the difference arises by plain language. Go to your affidavit, look at par 176 of your affidavit of evidence.
A: Yes.
Q: Read it to yourself.
A: It is not true that other NKF executives fly business class but it is true that I do so... When I travel by plane on NKF business, the NKF purchases tickets for me at rates not exceeding the price (at the time of travel) of an equivalent SIA business-class ticket.
Q: There's a lot that you have told us in this par without actually being explicit about it.
A: Look at the next par.
Q: I will come to it. Do not worry, you will have more than fair opportunity. Do you want to read par 177? Go ahead.
A: As a result I have flown in all classes, including economy, business and first class but it has not cost the NKF more than the cost of an SIA business-class ticket.
Q: You see, the truth is this. You have told us that the board feels you need the comfort of business class travel because it is long distance and you need to rest for your meetings, right?
A: Yes.
Q: What you have done with the board is obtain a perk, ostensibly business class fare, but pegging it to SQ's rate for business class, correct?
A: Yes.
Q: Some of us also travel and we know that when you get the full SQ business class fare, you can use that amount of money and get first-class on other airlines.
A: The board gave me the entitlement.
Q: Answer my question: Is what I am saying nonsense or true?
A: Not in Singapore, from other countries.
Q: It doesn't matter.
A: No, that is what I have done.
Q: When you travel, it is always to other countries or from other countries?
A: No, the tickets are purchased from other countries.
Q: Thank you. So you agree with me, do you not, that you can take this entitlement called SQ business class. Let's say Singapore to New York.
A: Yes
Q: $9160, SQ business class?
A: Yes.
Q: But first class, say, on MAS or Eva is lower. You know that?
A: No, I would not know that.
Q: You would not?
A: Because I did buy the tickets from S'pore.
Q: All right, so I will not be specific. You would know that you could get first class tickets from other countries and other airlines at a lower price?
A: Yes.
Q: Effectively, what you have done is you have used money from the NKF ostensibly for business class travel but really for first class travel.
A: I have used...
Q: Yes or no?
A: Yes. Can I explain?
Q: You can, but I would appreciate it if you would answer the questions.
A: Yes.
Q: You see, Mr Durai, this is public money. You yourself said that you need business class to travel in comfort. Is it not your duty as a trustee of people's monies to make sure that you get best value on a business class seat instead of deploying this clever tactic of using one of the highest published rates to get first class on another plane?
A: This is a decision made by the board. I used the entitlement.
Judge: The question is not who made the decision.
A: The board gave me the...
Judge: Nobody asked you a question about the board. Please answer the question.
A: Yes.
Q: Is it not true that as a trustee of people's money, you have a duty to ensure that you get value for that money?
A: True.
Q: Is it not true that as a trustee, you have to maximise the use of those monies?
A: True.
Q: Is it not true that you needed to fly in business class for business class comfort?
A: No. Can I explain, your honour?
Q: Look at par 177 … I am going to use your own words against you. Third line: ""Much of this involves tiring long distance travel and the need to be properly rested when travelling on behalf of NKF's business was recognised by NKF's board which set my entitlement.'' Your entitlement is at page 176 which according to you is ""when I travel by plane on NKF business... sorry, I should read the first line. It is not true that other NKF executives fly business class, but it is true that I do so. When I travel by plane on NKF business, the NKF purchases tickets for me at rates not exceeding the price... of an equivalent SIA business-class ticket.'' In other words, the directors feel, as you have confirmed, that you deserve business-class comfort. Correct.
A: Business-class entitlement according to the Singapore Airlines rate.
Q: Please do not play with words.
A: This is an entitlement given by the board to me. An equivalent of a business-class ticket on Singapore Singapore Airlines, your honour.
Judge: That was not his question. His question was the directors feel that you deserve business class comfort?
A: Yes.
Q: Is that not right?
A: Yes.
Q: Because you deserve business class comfort, you are given a perk of business class travel?
A: Yes.
Q: Using the money donated by the man in the two-room HDB flat, right?
A: Yes.
Q: Who has never in his life seen a business class cabin, right?
A: I would not know that.
Q: You would not? That is an honest statement?
A: Yes, I cannot comment on that.
Q: So you come up with this contrivance where you settle your perks at SQ's business class rate, use that money to go first class and sue people who say that they have seen you in first class?
A: Your honour, I must explain this. I was...
Q: You have abused the process of the court, you have abused the wealth of the NKF to take on this poor aeromodelling instructor who probably does not earn more than $1,000 a month to pay damages to you, to publish an apology and to pay costs, all because he said the truth?
A: It is not true. At that point of time when this occurred, I didn't travel...I did not travel first class on the basis suggested by him, but of late for the past two years the board has given me an entitlement to travel business class on a Singapore Airlines ticket. The reason, the board has given is because of the length , the way I travel, the way I work, because to be functioning effectively, so I have taken the liberty of using the money to travel in first class so that I can be more effective in the workings of the foundation. That is what the board has decided. They know about this.
Q: You can do that with your own money, sir, but when you are using the hard-earned money of people who are donating to save lives, you maximise it by going on the most reasonable business class plane instead of deploying this deplorable strategy of hiding it behind a business-class airfare SQ rates.
A: It is not true. I also work very very hard, and I give my blood and toil and sweat to be effective for the foundation. I work as much as possible and the monies I raise are for...
Judge: Nobody asked you about those things at this juncture. Next question please.
Q: Thank you, your honour. Therefore coming back to Richard Yong's statement in that article, is it true or false that nobody flies first class on NKF's money?
A: On the basis of what you said, it is not true.
Q: And that is why you did not sue, is it not, on that, because you were afraid the truth would come out. In other words, you were quite content for your chairman to
mislead S'poreans through the newspapers an he deliberately misled S'poreans with that false statement. Is that not true?
A: It's not true.
Q: You knew it was a true statement, right?
A: As I was explaining to you, how the entitlement works.
Q: Mr Durai, we started off after lunch with you saying that that paragraph in the article was true. You have now ended up saying it is not true, and I am suggesting to you that you allowed your chairman to mislead S'poreans about how NKF uses its donations and you have endorsed that misleading statement in this court by saying it is true. Is that not correct, Mr Durai? Please you are on oath, finally tell us the true position.
A: The true position is, as I have explained, is I think when Mr Yong said that, he was talking of a business class entitlement for our use, and what you do with the money is your own business. That is how I was told. That is how I have conducted myself.
Q: Sorry? What you do with your money is your business?
A: That is the entitlement given to you, and if you can use it efficaciously to fly any way possible, that's what I did.
Q: Do you pocket the rest?
A: I do not pocket the rest. I in fact travel cheaper than the business class at times and the foundation knows it.
Q: Which is why when we asked for discovery and further particulars about how you travel, your answer was NKF does not keep records by class of travel. Do you remember saying that?
A: Yes.
Q: And the reason you said that is because if those records are shown, it would come out that you have been flying first class regularly.
A: No, I have travelled, I have travelled economy, I have travelled business and I have travelled first class. On short distances, I have gone economy fare too. I have done that.
Q: I read again Mr Yong's statement to the world at large, in the article which you complain was defamatory of you, and on which you sued. For the record in other words, so that there is no doubt in anybody's mind about this, Mr Yong says there is no such thing as first class travel. That is false, correct?
A: Can I answer this?
Q: That is first; correct?
Judge: You are supposed to answer.
A: The point he was trying to say is basically that NKF...
Judge: You have to answer the question first and then explain.
A: Yes, I do not think it is correct to say it is false. Because I think what he meant was the NKF does not pay for a first-class airfare ticket from S'pore.
Q: Right, from Singapore. Is that what this says? Does this say that if Mr Durai flies from S'pore, we only pay business class. But if Mr Durai flies from other countries back to S'pore, then it is first class? You see, Mr Durai, as I said some of us do travel and we also know you can get tickets outside the country for two two ways, come to S'pore and back.
A: Yes.
Q: So what you do is you use your entitlement and put yourself on first class on those tickets, right?
A: Yes.
Q: Therefore is this statement true or false? That is all I am asking you. I am not asking for clarification. Is this statement by Mr Yong said to the reporter Ms Long meant for the public and the donors, true or false?
A: It is not accurate, yes. Your interpretation is not accurate.
Judge: On your interpretation it is accurate?
A: Because, your honour, the way we function as, as I was saying...
Judge: Please do not repeat yourself. We need to finish this trial on time.
A: Yes.
Q: How will the public read this? Tell me. You know, do you not, that the reason for this par and the words for the record is that there has been this controversy since the 1990s about whether you travel first or business.
A: Yes.
Q: So it is still fresh in the public's mind?
A: Yes.
Q: That you have sued two people who have alleged you travel first class?
A: Yes.
Q: For the record, in other words, to settle this issu. Now tell me, how will the public, who know about this, read this par?
A: They will have a different view on it.
Q: They will read it to mean that none of NKF's executives, including you, fly first class using NKF's money, correct?
A: Yes.
Q: And that is false, correct?
A: Yes.
Q: Thank you. Is this transparency or is this deliberate concealment of facts? Tell me. We had come to this court to justify the lack of transparency. What we have now learnt is far more egregious than that. Mr Durai, tell us, is this merely a matter of transparency or is this an orchestrated attempt to lie to the public?
A: No, your honour. We have been... We have been functioning on this basis. The board has made its decision on the entitlement, I have used the entitlement to travel the way I want for the purpose of the business. That is the way I function. It is not something I have done deliberately to deceive the public or whatever it is.
Q: Mr Durai, are you now going to do the right thing and go to those two persons you took money from to return it to them and to apologise?
A: No, I did not use NKF's monies. The NKF did not pay for a first-class airfare bill for me. I paid the difference. On the occasions when I travelled first class, for example, when I come back from Madras, the business class fare is a certain amount. I pay the difference and I upgrade myself.
Q: Are you going to answer the question? Yes or no?
A: No.
Q: So the answer is you are not going to do that, right?
A: No.
Q: Thank you. Can I take you back to the newspaper article? It is in the core bundle, page 123, the one that Mr Wadeley had handed to you earlier. Look at page 123.
A: Yes.
Q: The third par reads, quoting Mr Archie Ong, he said: ""Mr Durai jets here and there in first class'' implying that he did so on NKF's business. Do you see that?
A: Yes.
Q: Go to the bottom of that page, 4th par from bottom: ""On the implication that he flies first class on NKF's funds, Mr Durai we on the exco have never and will never use NKF funds for private travel. I have business concerns apart from the NKF which I have to attend to. And I may also get an upgrade to first class. So what people see cannot be assumed to be the truth.'' Over the page at page 124, first par: ""A man apologises for alleging that Mr TT Durai used NKF funds to travel first class.'' Mr Durai, look at the third paragraph from the bottom: ""In the NKF statement, Mr Durai said he had taken action against Mr Piragasum because it was not simply a personal attack on his character. Left unchallenged, such allegations would erode the foundation status and affect the care of its patients. Public sympathy towards the foundation would diminish, and along with it, crucial donations vital to its operations,'' said Mr Durai. This is not the first time that the NKF chief has received a public apology. Then I want to take you to page 128. This is a letter dated 13 May 1999. It is from Mr Alwyn Lim, vice-chairman, executive committee and chairman, finance committee, National Kidney Foundation. Do you see that?
A: Yes.
Q: You were aware of this letter before it went out?
A: Yes.
Q: You endorsed it.
A: Yes.
Q: He was responding among other things to the lawsuits, right?
A: Yes.
Q: Could I ask you to go with me to the 4th par: ""The NKF is not pursuing legal action to protect the reputation of key staff. On the contrary, this legal action is to reinforce the transparency of the NKF.'' I think at that time there was another lawsuit in relation to some e-mail that was circulating.
A: Yes.
Q: Do you remember that? What I want you to do is go to page 129. Look at this par: ""Mr Lim implies in his letter that NKF staff travel first class. NKF staff do not travel first class using NKF funds.'' Is that true or false?
A: On what you have said it is true...it is not true.
Q: It is true on what I have said?
A: Yes.
Q: In fact two individuals' apologised publicly last year and paid damages for making baseless allegations that NKF personnel travel first class. ""All NKF staff travel economy class, except senior officials who travel business class for long haul flights.'' Mr Alwyn LIm was not being truthful to the public. Correct?
A: Can I explain this?
Q: Yes or no?
Judge: You have to say yes or no.
A: It was true at that point of time, your honour. Because at that point of time...
Judge: I did not hear your first part.
A: I cannot hear you.
Judge: What did you answer?
A: No, I want to explain because at that point of time I was not travelling or I was not travelling using NKF's monies to buy a first-class airfare ticket. What happened, your honour, when I travelled to a location on a business class airfare, I paid the difference and then travelled on first class. That's what happened during those occasions. When I used to go to Madras, I used to take a night flight. The difference in price was only $50. I paid the difference myself and travelled and
came. So the NKF did not pay for my full...for a first class airfare ticket at that point of time.
Q: Mr Durai, you have earlier on just said that Mr Alwyn Lim's statement that the NKF does not pay for first class is not correct.
A: No, I'm just saying as of that date, what I was... I must explain. This was the position, your honour, because the situation changed thereafter. Because...
Q: Go on.
A: On those occasions when I sued Archie Ong and Mr Piragasum, I was going to Kuala Lumpur on flights, I was acting as a director there, I was paid to travel. I travelled on first class. And when I went to Madras on work, I paid the difference to go on first class airfare. The NKF paid for my business class airfare. I paid the difference myself.
Q: Mr Durai, even accepting what you now say, you wanted the world to think that what Alwyn Lim said in May 1999 continued to apply in 2004. Correct?
A: That was written in 1999.
Q: Correct. You wanted the world to think that what Alwyn Lim said in 1995, May, continued in 2004. Correct?
A: I do not understand your question.
Q: You wanted the world to think that, right?
A: I did not want the world to think that. I'm just saying insofar as I was concerned, this was the modality that was used in terms of buying tickets. I honestly believed there was nothing wrong because the board decided so, and that is the way we functioned. I was not trying to deceive the poor or the public at all.
Q: The reason you wanted the world to continue to be under that illusion is because or rather to show that you wanted the world to be under the illusion in 2004, Richard Yong put out the word that the policy remained the same. Is that not right? What Richard Yong said in 2004 is exactly what Alwyn Lim said in 1999. Do you agree? Yes or no?
A: No.
Q: Answer my question, please.
A: The point is this. Both of them said yes, the NKF pays for a business class airfare ticket.
Q: Why was it necessary for Richard Yong to mislead the public?
A: It was the policy of NKF to only pay a business class airfare. It is like asking me...depriving me of using the funds, what I want to do, in whatever way I want. The NKF said you can use the entitlement.
Judge: Mr Durai...
A: Sorry your honour.
Q: Why was it necessary for the chairman of the NKF who is going to come and give evidence, to make that statement which is not true? Mr Durai, you know that the statement was made, you did nothing to correct it. Why was the public misled?
A: As I keep saying insofar as I was concerned, I believe what I did was right. I was given that entitlement. The NKF gave me the entitlement.
Q: Here we go again. Listen to the question carefully.
A: We did not deceive them.
Judge: Otherwise we are going to waste a lot of time.
A: I am not deceiving the public, your honour.
Q: Mr Durai, one last chance before I move on because if you have no answer, we know what it is. Why was it necessary to mislead the public?
A: You can ask Mr Richard Yong that question because I would not know why.
Q: If you were an honest man, you would have published a correction, correct? You did not publish a correction. You therefore endorse that misleading statement. Why was it necessary to mislead the poor people of Singapore who give their hard earned cash to the NKF? Why?
A: As far as I was concerned, I did not think I was misleading the public.
Q: Do you or do you not consider the use of this method to get yourself on first class using donations mismanagement?
A: No.
Q: You do not? Even though these are people's money meant to save lives, meant for you to fly business, you used the money to fly first class. Is that or is that not mismanagement?
A: It is not because I flew within my entitlement for the purpose of the institution which I represent for the effective functioning of the organisation.
Q: The reason the public has to be misled is because you know that if the public knew the truth, they would be upset that these methods were being used to get yourself on first class. Is that not right?
A: No.
Q: The public would be upset that instead of finding the most economical business-class fare, you use this device to get yourself in the front cabin.
A: No.
Q: That is why you are not telling them the truth.
A: NO, the truth is...
Q: Why hide the truth?
A: I am just like every other CEO working at an organisation with a turnover of $120 million.
Judge: The question that he asked you is: why hide the truth?
A: I beg your pardon?
Judge: His question that he asked you is: why hide the truth?
A: I did not catch you, your honour.
Judge: Please repeat your question.
Q: Why hide the truth? You see, Mr Durai, if it is completely acceptable, completely above board?
A: Yes.
Q: Kosher?
A: Yes.
Q: Why not tell the public this is what you are doing? Why create a totally false impression, as we have seen in this article? Why?
A: On hindsight, we should have done that to say I travel on a first...on a first-class using a business class airfare.
Q: What do you mean on hindsight? Even on your affidavit which was filed a few days ago, you are still fudging that fact and I had to bring it out in cross-examination. What do you mean on hindsight?
A: It is being explained in the next par. It explains it, I travelled within the entitlement which is given to me.
Q: The reason you hide the truth is because you know that that is the wrong thing to do, using people's money, and because you know that is mismanagement of donations.
A: I disagree with that.
Q: Let's move on. You know, do you not, that as a result of the report of your action against people who talked about your first-class fare, there was a debate in Parliament on this issue, or rather a Member of Parliament raised this issue in Parliament.
A: I am aware of it.
Q: Go to the core bundle, my defendants' core bundle, page 125, CB125. This is a debate on 16 Mar 99, so it would be the budget debate on MCD as it was then known as.
A: Yes.
Q: Do you have it? The speaker is Mr Sin Boon Ann.
A: Yes.
Q: If you go to the second par, you will see: ""Towards this end, therefore, many VWOs are engaged in fundraising exercises in order to increase the resources available to fund the programmes. The NCSS, which is the umbrella organisation covering many of these VWOs in S'pore, is one of the largest recipients of public donations and government funding for social programmes. One has no doubt that the money that has gone into the NCSS is well used and well managed by the NCSS to assist its member organisations in its various activities. The sums received by many voluntary welfare organisations are not small. However following the recent episode wherein a member of the public had wrongly accused the CEO of NKF of misusing the foundation funds, many S'poreans have indeed begun to ask whether there are proper guidelines as to how the money that is given by members of the public and the government should be spent, and whether there is an audit system in place to ensure that these guidelines are adhered to. These guidelines must surely be based on the principles of achieving greater effectiveness and efficiency for the VWOs, so that every dollar given can be stretched longer. If there is assurance that taxpayers' monies and donations by members of the public would be made to good use, I am sure that it would serve as an encouragement for many more people to put in money into the organisation for a useful and proper cause. On the other hand, if it was discovered that the monies donated to an organisation is not very well managed, then the organisation concerned should charge its principal officers or suffer the consequences of not having any public support for its activities. MCD should therefore perform this watchdog function in ensuring that the money granted to these organisations would be put to proper use.'' Mr Durai, would you agree that what Mr Sin said in Parliament reflected the public's concerns at that time?
A: Yes.
Q: In other words, there was a public concern in '99 at least about first, the use of donations by charities and secondly, whether that use was sufficiently transparent.
Q: Yes.
Q: In fact, if you go to page 127, of that bundle, on 5 May, this letter that Alwyn Lim wrote, do you see that?
A: Yes.
Q: Sorry, page 128, If you look at the 4th par: ""This recent unsolicited internet assault on its reputation (that is NKF's reputation) seeks to cloud its transparency and with it, the integrity of the foundation through fabricated allegations.'' The NKF is not pursuing legal action to protect the reputation of its key staff. On the contrary, this legal action is to reinforce the transparency of the NKF.'' That is the second time this letter talks about transparency. Look at the next par: ""If the foundation had chosen to be silent, then it would have been construed that NKF is not transparent.'' Just skip another two pars. ""Transparency is a hollow phrase if there are no systems and processes to ensure that it is upheld, and the NKF has taken all steps to ensure that they are in place.'' Skip another two pars. ""The NKF also has an audit committee as well as an internal audit dept to ensure financial transparency in its affairs.'' You can take it from me that the word 'transparent' or "transparency' is used on many many occasions in this letter from your vice-chairman. Would you agree with me that the NKF since 1999 and until today has continued to take the position that it is transparent?
A: Yes, we have tried to be as best.
Q: Would you also agree with me that there are detractors who take a different position?
A: Yes.
Q: And that these detractors take the view that there is less than acceptable transparency on the part of the NKF?
A: Yes.
Q: And they would be entitled to take that view, is it not, because it is a matter of opinion?
A: Yes.
Q: Therefore, if this court were to find that all that the article meant was that there was controversy over your finances or the use of donations and that there is a lack of transparency, that is a comment which anyone is entitled to make.
A: Yes.
Q: Right?
A: Yes.
Q: And that if the court finds that the meaning that we have attributed or ascribed to the article is the true one, you would accept that as comment, right?
A: Yes.
Q: Thank you. Would you not agree with me that this controversy over transparency and use of donations arose as a result, among other things, of the way NKF spent its money?
A: Not necessarily so. It is also because of the way NKF operates itself.
Q: Right, so it is one of the reasons, right?
A: One of the reasons.
Q: Indeed this entire issue of transparency in 1999 arose because of the allegations of air travel.
A: Yes.
Q: Therefore of how NKF spent its money.
A: Yes.
Q: Correct? And in relation to the Internet crackdown, the allegation there was also in relation to how NKF spent its money, right?
A: Yes.
Q: If you look at 127 of the core bundle, you will see that a woman who sent a defamatory e-mail had to pay $50,000 in damages and legal costs and made a public apology, right?
A: Yes.
Q: Another one. At the eight or ninth par, you will see what she said which caused her to fork out 50 grand. She claimed that the NKF did not help the poor and needy, paid its staff unrealistically high bonuses and urged members of the public not to donate money to it. Why was she sued for that comment?
A: That is another...
Q: You said people are entitled to take a view about whether you are spending the money rightly or wrongly. Why was she sued for expressing that view?
A: No, can I explain?
Q: Please.
A: She also made the allegation that her brother-in-law applied for dialysis treatment and we did not want to accept her brother-in-law.
Q: Did you also sue her for this portion that I have read?
A: Yes, we sued her for everything.
Q: Why did you sue her for this portion when you are telling this court that it is fair for people to comment on how you spent your money?
A: We basically sued her for this allegation actually.
Q: I do not understand the answer at all.
A: We basically sued her for the allegation she made that her brother-in-law applied for dialysis and we never wanted to treat him. In her e-mail, Madam Tan claimed that her brother-in-law's application to NKF for dialysis treatment had been rejected.
Q: Look at what Alwyn Lim says at page 128. Do you have that page?
A: Yes.
Q: You are very familiar with this letter, are you not?
A: Yes.
Q: Is it not clear from the thrust of this letter that Alwyn Lim was defending the action arising from the comment on bonuses and that it didn't help the poor and needy? Look at it.
A: Can you refer to that. Which par?
Q: Take the whole letter, just look at the whole letter.
A: Yes.
Q: It is about the fact that you are completely transparent.
A: Yes.
Q: And that you do help the needy?
A: Yes.
Q: Right?
A: Yes.
Q: Therefore it follows, does it not, as a matter of simple logic that the grounds for which you took action were that she said you paid unrealistically high bonuses and did not help the poor and needy?
A: No, she made a specific allegation that her brother-in-law's application to NKF for dialysis treatment had been rejected and I would not know the contents of it but this is one of the things she said.
Q: Again it is true, is it not, that how NKF spent on its salaries was an issue?
A: Yes.
Q: And it was a matter which the public was entitled to comment on.
A: Yes.
Q: And likewise the media.
A: Yes.
Q: Is it also true that since 1999 many people have been asking NKF to disclose the salaries of its senior people?
A: Some people.
Q: And that it is an issue which has not gone away.
A: Yes.
Q: And the NKF has taken the position that it will not disclose it, right?
A: Yes.
Q: Tell us why.
A: I feel personally that salaries are a very personal thing and I am a private person, I do not want my salaries to be disclosed. I have disclosed...and it would be difficult for me to recruit people. It is so difficult to employ people to work in a charity and I have sounded out my other colleagues who work with me. They are very resistant to this and some have threatened to resign. Working in a charity is very difficult...compared to working in a commercial entity and if you want to recruit people from abroad to work in your institutions, they will not agree to such terms. So I took the view that this is not something that is critical.
Q: Now, you say that it would be difficult to recruit people if they became aware that their salaries will be published, right? You did not have to recruit yourself because you were a diehard NKF man, right?
A: Yes.
Q: And you have been almost your entire working life?
A: Yes.
Q: And you are committed to the cause no matter what?
A: Yes, I am committed to the cause.
Q: That does not apply to you, right?
A: But as I said...
Q: Do you or do you not agree that that reason does not apply to you because as far as you are concerned, it is not a question of recruiting yourself, you are there and you are going to stay there no matter what. So publicising salaries does not affect you.
A: As I said earlier to the court, I am a private person, I would not want my salary to be disclosed. I have not been required by the law to disclose the salary, so I do not see any legal requirement to disclose the salary, so I did not disclose.
Q: So now there are two reasons. One is your privacy?
A: Yes.
Q: And secondly there is no legal requirement?
A: Yes.
Q: Tell us, is there a legal requirement for you to put out all the information which you have put out in your investment report to yourdonors?
A: No.
Q: Therefore, despite the fact that there are no legal obligations to disclose, you do it, right?
A: Yes.
Q: So therefore the absence of a legal obligation to disclose your salary cannot be a reason for not disclosing it?
A: But it is a question of your personal choice because I mean, I lead a very...it is a personal matter, your honour.
Q: Yes, so we now come to the one reason, which is the privacy?
A: Yes.
Q: I do understand some of that because that is why people travel first class and have lavish suites for their privacy. But let me just ask you is this not people's money that is going towards your salary?
A: The people contribute the monies for me to work for them to achieve the altruism.
Q: Let me ask you. If another organisation mirroring what you have done pays its CEO $25 million, a year out of donations, is that something the public should know?
A: I cannot comment on that.
Q: Yes, you can. You have spent about 50 to 60 pages of your affidavit explaining your involvement in the charitable sector, your deep and intimate knowledge of what moves this sector and what is important for it. So I am asking you, as a man very experienced in the field, if a charity pays its CEO $25 million funded by donations, should the public know?
A: It depends on the board of directors.
Q: I am asking you. The board is not in the stand. You are.
A: I have no comments to make on this, your Honour, because it is a matter for each organisation to decide.
Q: I am asking you again, you as the CEO and a director of the board, what would your position be on the board if this question arose?
A: I would not.
Q: Sorry?
A: I would not.
Q: You will not disclose?
A: I would ask the person concerned what is his preference. I would respect him.
A: So you will not tell the public even though it is $25 million, right? Let me take another example. What if, in your view, the $25 million is grossly grossly exorbitant but you are outvoted on the board and he is given $25 million? In other words he does not deserve $25 million for what he is doing. Does the public have a right to know?
A: I cannot comment on that.
Q: I'm asking you to comment.
A: It is for the board to decide. Every organisation has a structure.
Q: Therefore you are saying that if the board decides to overlay a shroud of secrecy, you will go along with it, right?
A: I'm not saying that. I think I will go along with the board's decision. I report to the board.
Q: Now, you mentioned privacy.
A: Yes.
Q: In your affidavits, you likened yourself to CEOs in companies and ministers in the government, right? I can show you if you want.
A: Not CEOs of companies. I work like them.
Q: Yes. You also liken yourself to ministers in the government. Do you remember that?
A: In what way?
Q: In terms of transparency.
A: I cannot recall that.
Q: Would you agree with me that like ministers in the government, you are being paid out of people's money,?
A: Yes.
Q: Would you agree with me that ministers' salaries are transparent?
A: Yes.
Q: Would you agree with me that CEOs of listed companies have their salaries published in the newspapers?
A: I believe so, yes.
Q: And you have likened yourself to CEOs of public companies. Why are you not publishing your own information?
A: No, I...
Q: Yes?
A: As I was saying, I like my salary to remain private. My board members know that, my senior colleagues know that.
Q: We all like our salaries to be private.
A: Yes.
Q: But if it is funded by the public, which takes precedence? The right of the public to know how much of their money goes to you or your preference for privacy?
A: I think it is for the board to decide what is the best interest of the organisation. The public does not control the organisation.
Q: Exactly. Exactly. You see, Mr Durai, the public does not control, it does not have access to information, so does that not place a responsibility on you?
A: No, the rules are set by the regulatory authorities of Singapore. We comply with all the requirements of the regulatory authorities of Singapore and we have done this all the time. If the regulatory authorities impose a condition that we have to disclose salaries, we would.
Q: You see, Mr Durai, could you tell this court what your salary and bonuses were for 2002?
A: I was earning a monthly salary of $25,000.
Q: And your bonus?
A: The bonus was to the effect of eight to 10 months.
Q: Ten months bonus?
A: Performance bonus.
Q: Ten months' bonus?
A: I think the numbers have been given. You have got the numbers with you, I think. I cannot recollect.
Q: A $250,000 bonus. This is for 2002?
A: I cannot recollect the exact figure. I think you have the figure with you.
Q: If it is $25,000 a month multiply that by 12, you get $300,000, plus another $250,000, so your total package was $550,000 in 2002?
A: I believe so.
Q: 2003, please.
A: You have the numbers. I do not have the numbers offhand here.
Q: I would expect you to remember the numbers. Tell us, please, so that we do not waste time. What did you get in 2003?
A: About the same I believe. I cannot tell you offhand, your honour.
Q: About the same.
A: About the same.
Q: Meaning either $550,000 or slightly higher?
A: About that.
Q: How many months' bonus did you get in 2003?
A: Twelve months, I believe.
Q: Twelve months, okay.
A: Yes.
Q: So that's another $50,000 more. 2004, what was the bonus?
A: Similar bonus.
Q: Twelve months?
A: Yes.
Q: At $25,000 a month?
A: Yes.
Q: So for the past three years, you have earned about, what, $1.8 million?
A: Yes.
Q: From the NKF?
A: Yes.
Q: Should the man who earns $1,000 a month, who takes out $50 of his pay packet every month, thinking that it is going to save lives, not know that this is the kind of money you earn?
A: There is nothing wrong with the money I earn.
Q: I am not even talking about anything wrong. Please do not be defensive.
A: I am not.
Q: $1.8 million. I wonder what is wrong. $1.8 million. Should the man who takes $50 out of his pocket, out of that $1,000, leaving $950 for him, his wife and his children, with no savings, thinking that he is saving a fellow Singaporean in the bed suffering from dialysis, should he not know that some of that money is going or has gone into a $500,000 to $600,000 pay package for you?
A: Surely he knows.
Q: Tell me how does he know. Please show us that document to back up that statement that you've made on oath. ""Surely, he knows''. Please do not run away from that. You said surely he knows. Back it up.
A: Let me explain. People donate monies to the NKF to run a dialysis programme to save lives. We have built a dialysis programme. We run...
Judge: Please answer the question.
Q: You said ""Surely he knows.'' Answer that and back it up.
A: No I am saying a person who contributes to the foundation knows that there are people working in the institution. That is how I answer the question, your honour.
Judge: No. The question is should that person know that you are earning $500,000 to $600,000 a year? It is a simple question.
A: No, your honour. I do not see a need for him to know.
Q: Thank you. It has nothing to do with privacy, it is about embarrassment, is it not?
A: No.
Q: Because if that man knew that that is what you were earning, you would lose all authority or moral authority to look him in his eyes, is that not right?
A: That is not true.
Q: If he knew that over and above this half a million to $600,000 you were flying first class on his money, you would not look him in his eyes, is that not true?
A: That is not true.
Q: If he knew that his salary could not even buy the bathroom fittings in your private office suite, you could not look him in his eyes.
A: That is not true.
Q: Which is why we now understand...because I was having great difficulty with this...that you say a $990 tap is not expensive. Well, coming from you at $600,000 a year, we now understand why you say it is not expensive. But tell me for that man with $1,000, $2,000, is it expensive? Tell us please.
A: Yes, he may consider it expensive.
Q: He may or is it? Tell us the truth.
A: I cannot speculate that. That depends on the type of building, the use of the item. I cannot speak for him.
Q: The man in his HDB one-room, two-room, three-room flat on the salary of $1,000, $2,000, $3,000, would he find that tap at $990 plus 10 per cent discount expensive?
A: He may consider it expensive, yes.
Q: He may or will he? Please, Mr Durai, let us move on.
A: If he is an educated person, if he knows the use of the particular office, for what purpose, he may probably think it is something that is reasonable.
Q: Mr Durai, you therefore agree with me, don't you, that every cent that the NKF spends is a matter of public interest?
A: Yes.
Q: Yes?
A: Yes.
Q: Not only public interest but legitimate public interest, not mere curiosity but legitimate public interest.
A: Yes.
Q: That includes expenditure on salaries, bonuses, tickets, fittings, etc. right?
A: You have to use it judiciously, yes.
Q: Therefore, would you accept that the newspapers have a duty to communicate these facts of expenditure to the public?
A: The newspapers, yes but I do not think...I would not say it is a duty. The newspapers may take an interest in doing so.
Q: No, we are not talking about a morbid or curious interest. I am saying that, according to you, every two out of every three Singaporeans donate?
A: Yes.
Q: And, according to you, your expenses are a matter of public interest.
A:
Q: And I suggest to you the way the public learns of information is through the media?
A: Yes.
Q: Would you not agree with me that the media has a legitimate duty to inform the public about NKF's expenses?
A: Yes.
Q: And would you not agree with me that the public has a legitimate interest in learning of this information?
A: Yes.
Q: Thank you very much. Now, coming back to your salaries, why is it that although your salary was an issue in this action, you repeatedly refused to come clean on what you earn? Why?
A: I have disclosed my salaries.
Q: Let us take look at whether you disclosed your salaries. Pick up the setting down bundle. You were aware when we filed our defence that we had put your salary into issue.
A: Yes.
Q: You were aware. Therefore, as a lawyer, you know that once it is in play, it is a matter on which both parties have to come clean, right?
A: Yes.
Q: Therefore the issue of privacy is no longer relevant, right?
A: Yes.
Q: Can I invite you to turn to tab 5 of that bundle? This is your answer to our request for more particulars arising from your reply. Can you go to page 27 … we asked a question about your salary at question 45.
A: Yes.
Q: Do you see that? Look at your answer at page 28. What did you say?
A: I said...
Q: They were not relevant?
A: Yes.
Q: Right? Go to tab 7, page 6. I beg your pardon. I should also show the witness something else, page 26, tab 5. You have pleaded that NKF seeks to recruit able talented employees and pay what they consider to be reasonable salaries?
A: Yes.
Q: So we asked, in relation to the reasonable salaries, indicate the range of salaries paid to the employees in relation to each position held. Your answer again was ""irrelevant''; correct?
A: Yes.
Q: Then go to tab 7, page 6. We asked again -- in fact, because you did not give it to us, we had to apply to court again incurring further costs. We asked at page 6, please tell us what are the salaries earned by the employees? Look at your answer at page 7. You gave everybody's except yours; correct?
A: Yes.
Q: Why, Mr Durai? Why did you not give yours? Why did you make us go to court, incur costs, expose NKF to costs because you had to pay costs to us? Why? Just to protect your salary? Why?
A: As I said, I always valued my privacy.
Q: You see, Mr Durai, now your privacy is at the expense of NKF. In other words, even though it meant NKF having to pay costs to SPH for refusing to give salaries and for being ordered to do so, you do not give your own salary. Why is that?
A: As I said, I valued my privacy and I --
Q: But you agreed with me that once you come into court, there is no longer an issue of privacy. It is a matter of full disclosure of what is relevant. What you have done is you have given everybody else's range, forgetting their privacy, and yours, you have not. Your answer is, ""At the discretion of the board.'' Why? Is your privacy more important than your officers'?
A: I valued my privacy. That is so.
Q: Thereby forcing us to go back to court and to incur even more costs; is that not right?
A: Yes.
Q: And because we did that, we got another order of court, causing more costs to be incurred by NKF. Please turn to tab 9, page 3. It was only at that third try that you finally disclosed your salary; correct?
A: Yes.
Q: It is not a matter of privacy. It is just embarrassment. Do you agree?
A: No.
Q: Let me move on. The controversy that I spoke about earlier and the issue about whether NKF is transparent continued right through early 2000 to 2004; correct?
A: Yes.
Q: You are aware, for example, that three years after the debate in parliament that I just showed you, in 2002, at the Committee of Supply, the Deputy Speaker, Mr Chew Heng Ching, again raised this issue of transparency and accountability; right?
A: Yes.
Q: You are not suggesting that SPH's reports of all these issues are part of some agenda?
A: No.
Q: In fact, they cannot be because you have agreed with me earlier that it is a matter in which the public has a legitimate interest; right?
A: Yes.
Q: In the year 2004, NKF went into or discussed a deal with Aviva; right?
A: Yes.
Q: Again, you are not going to blame SPH for that discussion; right?
A: No.
Q: That discussion between NKF and Aviva concerned how the NKF can, for a fee, assist Aviva in its commercial objectives; right?
A: Yes.
Q: In other words, to be more specific, and correct me if I am wrong, how Aviva can leverage on your data bank of donor information to push out commercial information about them without necessarily knowing the information; right?
A: Yes.
Q: Would you not agree with me that it is newsworthy?
A: Yes.
Q: It is, is it not?
A: It is.
Q: So when The Straits Times picked up on this story, they were fully entitled to report on it; would you agree?
A: Yes.
Q: Can I take you very quickly to the articles, just to show you the dates. If you go to the core bundle, defendant's core bundle, you will see that it starts at CB155 and it goes to CB159.
A: Yes.
Q: If you look at the headline, it says at page 155: ""Aviva to tap NKF for referrals; the cash-for-clients deal will target people who donated or had health checks, and staff.'' Is that right?
A: Yes.
Q: At page 157, 3rd April 2004, the headline is: ""Creative move or invasion of privacy? Insurer's deal to tap kidney foundation's database gets strong reactions that range from thumbs up to moral outrage.'' Is that right?
A: Yes.
Q: Do you accept that this fairly summarises the differing views taken by people about this arrangement?
A: Yes.
Q: On the one hand, there were those who complimented you for your creativity, and on the other hand, there were those who were outraged that information given to you for one purpose was being used by you for another?
A: Yes.
Q: Right? Then if you go to page 159, there is this article by Mr Narendra Aggarwal, 5th April, headline: ""Aviva's "not buying NKF's donor list'. Proposed deal to custom-design products for donors and patients will not compromise privacy.'' You have agreed with me that this controversy was created by thearrangement that you intended to or entered into with Aviva; right?
A: The controversy was created by the article that came out on April 2nd, giving the impression that we were selling our database.
Q: But as you earlier said, this arrangement with Aviva was not of SPH's making; it was your making?
A: Yes.
Q: And they were fully entitled to report on it?
A: Yes.
Q: Correct? Could you now go to paragraph 146 of your evidence-in-chief … do you have it?
A: Yes.
Q: You say: ""It is also important to see the article in the context of the 1st defendant's other publications about the NKF at the time. The defendants contend that there was then a public "controversy' surrounding the NKF and its practices, and that it was "published in the local press' and "given prominent coverage in the local press', but on closer analysis, it is apparent that the only "controversy'
then existent was one wholly manufactured by the defendants themselves and publicised through its own publications using its own stable of reporters.'' Then in the next paragraph, you refer to the Aviva articles in (a), (b) and (c)?
A: Yes.
Q: But you know that that is not true?
A: No, as I said earlier, the article of April 2nd gave a wrong impression to the Singapore public that we were selling out data to a company and it created that controversy.
Q: You see, you intended here to suggest, by the use of the word "wholly manufactured' that SPH created a controversy where none existed. Is that your present position, sir?
A: No, I do not agree with that.
Q: No, I am saying that that is what you suggest. Is that your present position, that SPH created this controversy where none existed, by the use of the words "wholly manufactured'?
A: No.
Q: It is not your position because you have accepted, have you not, that all SPH was doing was reporting on an arrangement between you and Aviva, which arrangement you accepted created contrary views across the spectrum?
A: But creating a wrong impression.
Q: A wrong impression?
A: Yes.
Q: If it is a wrong impression …
A: Which created a controversy.
Q: Right. If it is the wrong impression, did NKF put it right?
A: Yes, we got Mr Keith Perkins to write.
Q: Sorry?
A: We got Mr Keith Perkins to write in, and Narendra Aggarwal replied to it.
Q: Therefore, you were given your say, were you not?
A: Yes.
Q: And NKF's point of view was given due publicity, right?
A: Yes.
Q: Notwithstanding that, there were two different views?
A: Yes.
Q: Therefore, after the public knew what NKF's position was, there remained this difference of opinion?
A: Yes.
Q: This controversy?
A: Yes.
Q: You do not really mean that this was wholly manufactured by SPH. Surely, Mr Durai?
A: Yes, I do not think so.
Q: Thank you very much. Would you also agree with me, since we are on this point, that SPH did not manufacture the controversy relating to your reserves because you have alleged that?
A: The reserves issue was also brought up by SPH in the papers.
Q: Answer my question.
A: Yes.
Q: Is it still your position that SPH manufactured this controversy relating to your reserves?
A: Yes.
Q: It is? Right. Then let us start. Was it SPH who initiated the story of the reserves?
A: The SPH reported articles in Salt magazine.
Q: The story on the reserves came out in another journal; right?
A: In a small publication.
Q: Called Salt?
A: Yes.
Q: S-A-L-T?
A: Yes.
Q: In that journal it was reported that NKF's reserves were $189 million as at 2002?
A: Yes.
Q: Clearly, that is information which is of tremendous public interest?
A: Yes.
Q: If that is correct, you must accept that The Straits Times would then have a duty to communicate that information to the public at large?
A: Yes, from your explanation, you are right.
Q: Therefore, SPH was only doing its duty?
A: You are right.
Q: They did not manufacture a story out of thin air to do you in, right?
A: You are right.
Q: Thank you very much. When we put all of this in context, you would accept, would you not, that what SPH was doing was merely picking up on stories which you accept to be of tremendous public interest, and discharging their own duty by communicating this information to the public who had an interest in reading it?
A: That is so.
Q: Thank you very much. Therefore, to the extent that you allege that we manufactured this controversy or were crusading against you, and therefore were malicious, you withdraw that?
A: Yes, I would withdraw that.
Q: Thank you very much. And you would likewise withdraw the allegation that SPH had an agenda against you?
A: Yes, I would think so.
Q: Thank you very much, sir. The reserves story created quite a bit of controversy, did it not?
A: Yes.
Q: And rightly so, in the sense that people were entitled to take strong views.
A: Sure.
Q: In fact, what happened after the reserves story was published was that there were very very strong views expressed against the accumulation of those reserves as well as views published or expressed in support of that objective, correct?
A: Yes.
Q: And the SPH and the Straits Times gave a balanced report or reports of both sides of the story?
A: They reported both sides, yes.
Q: They did. Nothing that they said was false because if it was false, you would have sued?
A: Yes.
Q: None of their comments were malicious because if they were, you would have sued?
A: Yes.
Q: Thank you. The upshot or one of the upshots of the Salt article was that the public has a right to know so that there is informed giving, right?
A: Yes.
Q: I will not trouble you with all these letters, but you would have seen it in the evidence. SPH received a deluge of email from the public, very very unhappy that there was $189 million worth of reserves in the NKF, right?
A: Yes, some of the people have written.
Q: What people were upset about as well was how much money of their donations per dollar was going to saving lives?
A: Yes.
Q: There was a very strong sense that they did not have the requisite information; do you agree?
A: Yes.
Q: You therefore must agree that as a result of this feedback, SPH had a duty to continue pursuing the story of the reserves and how they were put to use?
A: Yes.
Q: Would you not agree with me that in the articles that SPH and Straits Times published, including the very article itself that you are suing on, they were merely discharging that duty?
A: Yes.
MR SINGH: Can I just have a few minutes, your Honour?Court: Certainly.
(A short adjournment)
MR SINGH: Thank you, your Honour. Mr Durai, coming now to the events leading up to the article. You had agreed with me before the break that SPH had a duty to write the article and that the public had an interest in reading about it. Would you agree with me that in the course of writing that article, or for the purposes of the article, Ms Susan Long, the 2nd defendant, did interview NKF's officers?
A: Yes, she did.
Q: Could I, in this regard, ask you to look at your evidence-in-chief at paragraph 149.
A: Yes.
Q: At paragraph 149 you say that Ms Susan Long visited the NKF centre on 14 April to conduct interviews. You were introduced to her, expected her to ask you questions, which you would have been willing to answer, but she ignored you. Can I suggest
to you that that is not right because it had been made plain to her that you did not want to be interviewed?
A: Yes, but I was there and I was prepared to answer questions if she wanted me.
Q: But did you not also make it quite plain that you refused to be interviewed?
A: No, I told my colleague Michelle that the best people to be interviewed would be others.
Q: No, because here you see, in this paragraph 149, and that is why I need to deal with it. You give the impression that you actually expected questions, you were willing to answer them but to your surprise she ignored you, suggesting that here you were willing to come forth, but she did not want to talk to you. But is it not the true position that you had said that you did not want to be interviewed?
A: Yes, possibly, because she did not want to ask me questions, yes.
Q: Right. In fact, that is what you say in your amended reply. If you go to the set down bundle, tab 2 is the amended defence?
A: Yes.
Q: If you go to page 47 of tab 2, you will see at (m), our defence, where we say: ""The 2nd plaintiff (that is you) refused to be interviewed by...(Ms Long) for the article.'' Your response to that is at tab 3, page 18, subparagraph 13?
A: Yes.
Q: Where you admitted that you considered it unnecessary to be interviewed as you had already given access to other key employees; right?
A: That is true.
Q: Thank you very much. In the course of writing the article, Ms Long came to learn from a source about the fittings in the bathroom. You know that; right?
A: Yes.
Q: We now know the source is Mr David Tan; right?
A: Yes.
Q: At this time in 2004 April, you were in a building, you were on the 12th floor?
A: Yes.
Q: Which was a different floor from the one you were occupying in 1995?
A: Yes.
Q: And you had been occupying this present building in 2004 for about four to five years?
A: That is so.
Q: From May 1999, I think?
A: Yes.
Q: And there is a bathroom attached to your office, right?
A: Yes.
Q: You know, do you not, that there was no incident in the existing bathroom where installations were replaced; right?
A: Yes, I do not recall, correct.
Q: The only incident where installations were replaced was in 1995, in the other building?
A: Yes, on recollection, yes.
Q: Right?
A: Yes.
Q: The article was supposed to come out on 18 April?
A: Yes.
Q: On that day, the NKF had a fundraising, right?
A: Yes. It was on a Sunday, yes.
Q: Clearly, if SPH had harboured any malice or wanted to damage NKF, the article would have come out on that day, and that you would later complain would have had an effect on the donations; right?
A: Yes.
Q: Is it not true that SPH withheld the article until after the show?
A: From the AEICs given, it is so, yes.
Q: That puts paid to any suggestion that there was any malicious intent to damage NKF in the fundraising; right?
A: To the fundraising, yes, for the show.
Q: Yes, for the show. It is important because in these shows you raised $6 million in one shot; right?
A: Yes.
Q: That article was held back to the 19th because, as you now know, attempts were being made to contact your PR department to verify the story?
A: Yes.
Q: About the installations. Do you remember that?
A: Yes.
Q: I would like to just show you the sequence of events in relation to this. On 16 April..
A: Which document? Which bundle?
Q: I will take you to the document, if it is necessary, because I do not want to waste time, but if you want to look at the document, ask, and I will show it to you. On 16 April, Susan Long sent an email to Juliana Khoo at nfks.org?
A: Yes.
Q: A typo with the email address. If you want to see the document, it is in the core bundle, the defendant's core bundle, page 252.
A: Yes.
Q: She had learnt about the information about the private bathroom, and she asked a question about the gold taps, the gold-plated taps?
A: Yes.
Q: But you have come back to say, in this action, that that email was sent to the wrong address?
A: Yes.
Q: You are not suggesting any malice or anything; right? It is obviously a typo?
A: Yes.
Q: Thank you. Then this was followed up by another email on the 17th, which is at page 253?
A: Yes.
Q: Not having heard about what was happening, Ms Long decided to pursue this matter, and if you look at that email at page 253, what she does is she quotes the earlier email at the bottom?
A: Yes.
Q: And then she says -- at the top ""Hi, please see, they are holding story for Monday now. Can you get response back to me asap?'' This was 17th April.
A: Yes.
Q: You also know that Ms Khoo had a conversation on the phone with Ms Long about this?
A: Yes.
Q: Instead of answering the question about the tap, Ms Khoo asked her who the contractor was. You know that; right? If you want to see that, it is at page 254, the next page in the bundle.
A: Yes.
Q: Right?
A: Yes.
Q: Juliana Khoo to Susan Long, 18th April: ""Hi Susan Since you can't give us details of the contractor or which part of the construction of the building he was involved in, it is difficult for us to give an answer to enlighten your readers. Nobody, under the guise of anonymity, can make any claims. And such unsubstantiated claims will only make our mission to save lives even more difficult and complex. As far as the 12th floor is concerned, it houses the offices of the chairman, the CEO, the boardroom and meeting areas. The last two are also used by staff for presentations, discussions and meetings. Thank you once again for your email. We are going off to get ready for the show...'' That was the answer. You were aware that that was the answer that was going to be given and was given; right?
A: I was not aware of this.
Q: Were you not aware that there was a query or question about these fittings at that time?
A: I was asked about it.
Q: By whom?
A: By Juliana.
Q: What was your response?
A: I told her that there was no such incident, and I told her: could you check?
Q: You said that there was no such incident, and you asked her to check?
A: Yes, because she told me this Susan Long had contacted her regarding a contractor doing some work on the 12th floor of the building, and I said it was bizarre to me at that point of time.
Q: Thank you. Could you please tell us why then if it was so bizarre, and there was no such incident, NKF did not respond to say that, to deny the story?
A: The point is this. We did not know … this particular person could have dealt with some other employee in the organisation or some other subcontractor in the organisation. We would not know.
Q: No, Mr Durai, my question is: this is your office?
A: Yes.
Q: You have been occupying it for five years?
A: Yes.
Q: You know that the installations there had never changed?
A: Yes.
Q: The point was, to use your word, bizarre?
A: Yes.
Q: You told her there was on such thing?
A: Yes.
Q: We were asking about the 12th floor?
A: Yes.
Q: Why could NKF not have replied to say, ""It is false. There is no such thing.'' ?
A: I believe Ms Juliana Khoo had informed the reporter that the building was not around at that time she was talking about, I gather from the evidence. She had told her that. But --
Q: No. My question was a very simple question. You knew the answer --
A: Yes.
Q: It was bizarre. Why could you not say there was no such thing when you told Juliana that? Why not just tell the press that that was rubbish?
A: I was busy with the show at that particular point in time. When Juliana Khoo asked me about it, that is what I told her.
Q: Yes, so why is it that Juliana did not tell the newspapers that there was no such thing?
A: Juliana wanted to probably investigate the matter. I would not know.
Q: What is there to investigate? She obviously does not distrust you, does she? Does Juliana distrust you?
A: You should ask her that question, why she did that.
Q: As far as you know, does she?
A: No, she does not distrust me.
Q: You are her boss?
A: Yes.
Q: You tell her it is bizarre, there is no such thing?
A: Yes.
Q: What is there to investigate? She would just merely reply, and say ""deny'' and the story would have just died. Why was not that done?
A: As I said, I just told her.
Q: Is not the truth that you knew what Susan Long was referring to, had got the building wrong, and decided to fudge?
A: No, that is not true at all. That was 10 years later. I would not know what actually happened because the allegation was the 12-storey building, this particular building, I was in the midst of the charity show, and it was something outrageous. I didn't know anything. I just said no, nothing of this sort, and there was no intention of me to fudge anything at all.
Q: It would have been elementary to get the answer if the reference was to the 12th floor of the present building; right? Elementary. Would you agree? It would have been elementary, it is simple, to just check. Take the lift up to the 12th floor, check whether there were any gold tap that is replaced, and that is it. Because you have been there, you know. In fact, you have just said it was bizarre?
A: Susan Long could have checked it herself.
Q: She was checking with you, NKF, the people who would know. She was giving you all the opportunity to say whether it was true or false. You say you knew it was false. Why did you not tell her that?
A: No, I had no communication with Susan Long at all. My colleague was dealing with Susan Long. I was busy with the charity show at that point of time.
Q: Why did you not tell Juliana to say that there was no such thing?
A: I told Juliana. Juliana, there is no such incident. You may please want to check for the reporter because people make allegations against the NKF. It is our duty to check and answer if it is possible. That is what actually happened.
Q: Can you turn to the setting down bundle at tab 3, page 25, your reply. You say that SPH failed to take reasonable steps before they published the article?
A: Yes.
Q: This is what you say: ""Having regard to the gravity of the allegations being made against the plaintiffs and the fact that there was no urgency in publishing such allegations, particularly to the public at large, it would have been reasonable and responsible before contacting the plaintiffs for the 2nd defendant to (a) have discovered whether the contractor was telling the truth, by checking out the floor and building where the work was allegedly done...'' What you are saying is all Susan Long had to do was to go to the floor of the building and she would have got the answer; right?
A: Yes, she could have checked, many other ways. One of the ways would be this.
Q: Correct, and that would have been elementary, if you use the word that you used in the last but one line of that page, right?
A: I do not get you, I am sorry.
Q: You say: ""If the 2nd defendant had taken these elementary steps...''
A: Yes.
Q: So it was elementary for Ms Susan Long to go to the 12th floor, walk into the bathroom and she would have got the answer; correct?
A: Yes, she could have done that if she wanted to.
Q: My question to you is: she is in SPH's building?
A: Yes.
Q: You are at NKF?
A: Yes.
Q: Why could you not have done that?
A: The point is this. At that point of time, as I said, we were doing the show. She had come to our building, we had given access to her at any point of time.
Q: We all know that this issue arose after the interview. You are in the building, maybe even in the office. Why could you not have done what you say Susan Long should have done.
A: This is what I told Juliana. I was busy with the show. I had no time --
Q: In fact, you did not even have to do that because you knew that there was no such thing on the 12th floor of the $21 million building?
A: Yes, there was no such thing at that point of time, yes.
Q: Let us see your answer to why you did not give an answer at that time.
A: Yes.
Q: Go to your evidence-in-chief, page 60, paragraph 150: ""Three hours later, I again went to the room where she was conducting interviews and this time too she ignored me. Days later, she sent an email to my colleague Juliana Khoo asking for a quick comment on an alleged incident involving installation of gold-plated taps in my office on the 12th floor. 151. On this occasion, and for four reasons, I decided not to be interviewed by her. (a) One, I could not provide a quick comment on an anonymous, unsubstantiated and unparticularised claim...'' Pause here. That is false, because in evidence today, you said you did give an answer, which is ""no, there is no such thing''?
A: That is what I told Juliana.
Q: If that is what you told Juliana, then paragraph 151(a) is false. Do you agree?
A: No, I also felt the same way and I told Juliana that.
Q: My question is: if that is what you told Juliana, paragraph 151(a) is false; do you agree?
A: +I do not get your question, please.
Q: It is simple. Here you said you declined to be interviewed for four reasons?
A: Yes.
Q: One, you could not provide a quick comment on an unsubstantiated, unparticularised claim. In other words, it is so vague --
A: It is true --
Q: One second. How can I comment? But today you say it was bizarre. I told her, ""No such thing''. You gave your answer without having any doubt?
A: When the question was asked of me --
Q: So my question is: would you agree with me that what you have said in evidence today is inconsistent with paragraph 151(a)?
A: No, I could explain that. When Juliana asked me for the first time, I told her, look, no such incident. Then I asked her to check on it. And I cannot comment on something where there is no proper allegations are made --
Q: Nowhere in paragraph 151 do you say you asked her to check; do you agree?
A: I did not say state that, yes.
Q: That is the second inconsistency between your evidence today and paragraph 151; correct?
A: No. What actually happened is I told her so.
Q: Thirdly, look at paragraph 151(b): ""Two, she had already been given access to the NKF's chairman, treasurer and other key employees...'' How is that relevant to installations in your bathroom, Mr Durai?
A: She could contact them and speak to them. She was dealing with them for three hours.
Q: This is your bathroom?
A: No, anybody, my colleagues use my bathroom. This is for everybody's use.
Q: Paragraph (c): ""Three, this was just hours before the second part of the NKF Charity Show, the foundation's biggest and busiest fundraising event; and (d) Four, I assumed that the defendants would not publish any information without ascertaining its truth, more so since there was no hurry to rush publication of the article the 2nd defendant had interviewed my colleagues for.'' Mr Durai, you knew that we held back publication for the 19th; correct?
A: I now know that.
Q: Juliana knew that. We saw the email; right?
A: Yes.
Q: Juliana knew that the article was coming out the next day. You had said no such thing and Juliana asked for the name of the contractor. That is what you would like the court to believe?
A: On a matter of such gravity, I would have expected the defendants to really check, verify, get the bills and everything to make the allegations.
Q: You see, it is actually quite straightforward. There was only one incident when installations were replaced, and that was in the two-storey building. You knew there was no such incident in the present building. Because you were aware of that earlier incident, you decided to play for time and fudge?
A: That is not true at all. Because --
Q: Because if there was no such incident, and you were confident of it, you would have said, ""no such thing''. The only reason you asked for the contractor's name is because you wanted to play for time?
A: That is not true, your Honour. Because this was an incident that occur so many years ago, and I was in the midst of a show.
Q: You see, Mr Durai, this is not the only occasion when the NKF has evaded and fudged, and tomorrow I will take you through the other occasions when that has happened.
A: This is the honest truth.
Q: You see, immediately after the article came out, you were able to deny it for the 12th floor of the $21 million building; is that not right?
A: I contacted the interior designer and asked him whether such an incident occurred. On getting information from him, I denied it.
Q: There was no need to do that because you yourself said it was bizarre, there was no such thing. There was no need for you to contact anyone?
A: I would not know because this incident may have occurred with the interior designer. Because it concerned my office, I have to check and find out whether any such incident occurred, and I checked with him, because insofar as I was concerned, no such incident occurred. I asked the interior designer whether he had any problems of such a nature. After getting information from the interior designer, we came out with this statement in the papers.
Q: I suggest to you … to round off this area, your Honour … that when you were confronted with that question, you were aware of what the question related to, and you decided that it was best not to deal with it for fear of what might come out?
A: That is absolutely wrong, because I have nothing to fear. I did everything what I could possibly do right.
MR SINGH: That is it for today.
NKF VS SPH: ST'S COURT TRANSCRIPT FOR JULY 12
MR KHOO: Before my learned friend recommences his cross-examination of the 2nd plaintiff, if your Honour recalls, a lot of the cross-examination yesterday, a large part, and very serious cross-examination, was on the statement made by Mr Richard Yong, chairman of NKF, in the reported portion of the article, if your Honour remembers, where he said there was no such thing as first-class travel. Your Honour must bear in mind that the witness here, Mr Durai, was not present during that interview.
There was the suggestion and I would even put it higher than suggestion, that the NKF was misleading the public without telling them that actually there was first-class travel, only business-class. Before my learned friend continues, perhaps he should -- I am just suggesting to him -- check with the 2nd defendant, Ms Susan Long, who conducted the interview, for this reason. If I may refer your Honour to Ms Long's affidavit of evidence-in-chief at page 213.
COURT: Please proceed.
MR KHOO: This represents a typewritten transcript of her interview of Mr Richard Yong on 13th April 2004 on the question of business-class travel. Somewhere in the middle of that page of the affidavit you will see at page 29, it reads as follows, according to her transcript:
"Would you disclose yours.
Salaries are confidential.
'Bonus' non-13 month co -- six months hearsay.
'Victim of our own success people always pick on us'.
No such thing as first-class travel -- we go on business-class travel.
If upgraded or pay the difference."
This portion, whatever she may have meant, as an understanding of what Mr Richard Yong says, was not reported in the article. When Mr TT Durai gave his answers yesterday on whether Mr Yong was telling the truth and should be corrected, I think the best person to answer this as to what he actually told Ms Long should be Mr Yong himself, who will be coming as a witness.
I just would like to point this out to your Honour because Mr Durai was not at the interview. That is only for the record, your Honour. I am much obliged.
COURT: Thank you.
MR SINGH: I am grateful for my learned friend drawing this court and my attention to the transcript of the interview. All that goes to demonstrate is two things. I say it with the deepest of respect. First is Mr Michael Khoo, my learned friend, does not appear to have followed my cross-examination yesterday. Secondly, it only confirms that what Mr Richard Yong is reported to have said in the newspapers is false.
There is a critical difference between being upgraded from business class to first class, because you travel a great deal of business class, and you have the miles, for example, or if you pay the difference and therefore are upgraded on the one hand, and on the other, where you create a contrivance where on the face of it, it looks like your perk or entitlement is business-class fare, but you use that business-class fare based on a higher rate, which is published by one airline, and then use that same amount of money or less to get first class on another airline or that same air line flying out of a different destination.
Therefore, when Mr Richard Yong said that there is no first class and I quote:
"For the record, Mr Yong says, there is no such thing as 'first-class travel'. Senior executives, from directors up, including CEO Mr Durai, fly business class. The rest fly economy."
That is as false as it can get. So my learned friend is right when he said I made a serious suggestion. It is very serious. It is a false statement that is made to the public.
The fact that Mr Durai was not present at that interview is neither here nor there. First, he did come in and out of that interview, but even putting that aside, I asked him yesterday, "What steps did you take to correct the statement if it was not correct or not accurate?"
First, he accepted that it was not accurate, and second, he also accepted that he did nothing to correct that statement. So we do not resile from anything that we have said. The evidence speaks for itself, and we stand by the position that we have taken.
With your Honour's permission --
MR KHOO: With my learned friend's leave, I will make a slight response to that. It should not go unresponded to. These are the notes of the 2nd defendant. She conducted the interview. You will see that even from the interview notes, as recorded by her, assuming they are accurate, and of course she will be asked about the accuracy when she comes on the stand. For the record, they do not even appear in her notes, that is one thing.
Secondly, we have asked for a tape-recorded transcript or rather the tape-recording of that interview in discovery, and it was told to us that it was lost or missing. That is a different matter altogether, but I would just like to say that even by her own recorded notes, Mr Yong did not say "for the record". As far as Mr Durai's ability to correct what Mr Yong had said is concerned, he was not at the interview.
MR SINGH: Before I recommence my cross-examination, I will just close off on this point by making this contention, which I think seems to have eluded my learned friend. He says that he asked for the tape, and they take issue, perhaps, with the tape or the transcript. But if he remembers his own witness's statement yesterday, in evidence on oath, his witness said that the rest of the article is correct; to the extent that it is comment, it is fair.
Therefore, this witness has confirmed that what appears in the rest of the article is accurate, but later resiled from that when he accepted that that one portion on air travel is unfortunately -- I think his words were -- inaccurate; our suggestion is false. With that, can I resume my cross-examination.
MR TT DURAI (on former affirmation) Cross-examination by MR SINGH (continued):
MR SINGH: Mr Durai, in your affidavit at paragraph 63, if you could pick it up, you say in the first sentence, I think talking about the period sometime in the 1990s, when you were first offered employment by NKF:
"I was initially offered a salary of $20,000 but I decided I should accept only $12,000."
Do you see that?
A. Yes.
Q. The impression that you give by that statement is that even though the organisation was offering you more, you were prepared to take much less for the sake of the organisation; is that not right?
A. Yes.
Q. But that is not correct, is it, Mr Durai? Would you like to correct that statement? I will give you one opportunity before I ask you questions about it. That is not correct, is it? The true position is that you were looking after your own interests, and you felt that the $20,000 was insufficient?
A. I do not get your question. I am sorry.
Q. If you say you do not get my question, then I will have to take you to the documents. Can you pick up the defendants' core bundle. These are documents discovered by NKF. Could you go to tab B, page CB3. This purports to be minutes of the executive committee meeting of the NKF of 1st October 1992?
A. Yes.
Q. At the bottom paragraph 16 there is a heading called "TT Durai"; do you see it?
A. Yes.
Q. I would like to read the third line: "The committee suggested that Mr Durai should be compensated a sum of $20,000 per month. Mr Durai felt he should take a lesser amount as a salary, $12,000 per month ..."
Do you see that?
A. Yes.
Q. Now I read on:
"... and that he be given the freedom to do other work which is not in conflict with NKF."
That portion was not stated in paragraph 63 of your affidavit. Why? In paragraph 63 you gave the distinct impression that you were being thoughtful, generous, considerate and concerned about NKF, and so although you were offered $20,000, you were only prepared to take $12,000. But the documents show that, in fact, you were only prepared to take $12,000 because you wanted the freedom to do other work and earn other money; is that not true?
A. No, that is not true, actually. I did not want to take $20,000 from the NKF because I thought it would be too much, I should take $12,000 and see whether it is possible for me to do -- to get income from any other source, if I could.
Q. If you could. In other words, see whether it was possible to get income from another source or other source if you could. That is not true, is it, Mr Durai? The truth of the matter is there were two options available to you. Either take $20,000 and be a full-time employee of NKF or take $12,000, be a part-time employee of NKF and earn money outside with the result that the aggregate of your income would exceed $20,000?
A. That is not how I thought at that point of time, your Honour.
Q. Let me show you the document which shows that that is exactly how you thought at that point of time, despite your evidence. Turn to page 5. At the top of page 5 is again another NKF internal document and I read:
"It is highly impossible for him [i.e. you] now to continue the affairs of NKF on a full-time basis as he has a family of four to support."
Is not the clear and unmistakable implication of that that you need more money than $20,000 to support your family of four?
MR KHOO: $20,000 or $12,000?
MR SINGH: $20,000 because if it was enough, he would have accepted full-time employment. The reason you were not prepared to accept full-time employment at $20,000 was because you had a family of four to support and it was not enough?
A. No, that is not true. I was a volunteer at that point of time. I was taking a full-time appointment. The board wanted me to take a full-time appointment. So I did not want to accept the salary of $20,000 at that point of time. So I suggested a different mode, so that I could take a lesser amount from NKF, and look at the possibility of earning anything extra if it is possible. That is the way I felt at that point of time.
Q. Mr Durai, let us start from the basic proposition. At that time, you had a family of four, which you had to support; right?
A. Yes.
Q. This sentence says: "It is impossible for him to continue the affairs of NKF on a full-time basis as he has a family of four to support."
Right?
A. No, what it means, your Honour --
Q. Would you agree with that first?
A. Yes.
Q. Right. You were being offered $20,000 for a full-time position; correct?
A. Your Honour, I was already full-time volunteer at the NKF at that point of time. So that is what the sentence meant, and the board wanted to compensate me to start working in the foundation.
Q. You want to reconsider that position about being a full time -- did you not have other things going on at the same time?
A. Yes, I was doing other things, but I was running the NKF, doing everything possible for the NKF. I --
Q. Please be specific and truthful, because if you make a statement that you were full time, then you force me to show you documents to counter that.
Now let us start again from the basic proposition. You had a family of four that you had to support?
A. Yes.
Q. Right? You were being offered full-time employment with NKF; right?
A. Yes.
Q. That offer came with a salary of $20,000; correct?
A. Yes.
Q. It was clearly not enough, which is why you were suggested the alternative of part time at $12,000 plus continuing to earn outside?
A. That is not the way I looked at it at that point of time.
Q. It makes no sense because if $20,000 is enough, why not accept full-time employment at $20,000 to support your family of four? Why take $12,000 and hope that you might find something else outside?
A. The organisation was starting at that point of time. I did not want to take that amount from the NKF. I wanted to prove myself over the period to deserve a higher salary.
Q. Mr Durai, is it not true that you were also busy with other matters outside NKF during that time?
A. At what point of time?
Q. 1992, I believe this offer was made?
A. Yes, I was running the NKF.
Q. Outside the NKF, what else were you doing?
A. I was serving as a director of Amcol Holdings.
Q. What else?
A. I cannot recall anything else.
Q. What else were you doing and/or seeking to do which you felt would not have been permissible had you taken on full-time employment?
A. No, I looked at -- I kept that option available of the possibility of doing anything outside if I could.
Q. Answer my question. What else is that?
A. I cannot recall anything. I remember I only served as a director of Amcol Holdings at that point of time.
Q. Right. So in your mind, if you had taken on full-time employment, you would not have been able to carry on those directorships; right?
A. Not necessarily so. It was just a part time -- going as a director of Amcol Holdings --
Q. Are you saying that it was not inconsistent for you, being a full-time employee of NKF, to also be on the boards of companies earning directors' fees?
A. Yes, but I --
Q. Sorry, what is your answer? Is it or is it not inconsistent?
A. It is not inconsistent.
Q. It is not?
A. No.
Q. So if it was not inconsistent, therefore it means that you were prepared to take the $12,000, you were prepared to sit on these boards with fees and you wanted more, you wanted to explore other opportunities; correct?
A. No, that is not so. Yes, I wanted to explore other opportunities if possible.
Q. Therefore, the whole idea of exploring these other opportunities was to try and see whether you could actually get more than $20,000 in aggregate?
A. That is not true, your Honour --
Q. Then why would you do it?
A. I wanted to sacrifice for the NKF because the NKF was just starting at that point of time. I was prepared to take a lesser salary, and see whether I can supplement my income in any way possible until the organisation blossoms.
Q. Mr Durai, the document says quite clearly that you were unable to support a family of four on the basis of $12,000 and you wanted the liberty to go out and do more?
A. I was prepared to make the sacrifice.
Q. I suggest to you, sir, that contrary to the suggestion in your affidavit indicating that you were making a sacrifice, the truth of the matter is that you wanted a situation where you would have both the benefit of pay from NKF plus the benefit of income outside NKF?
A. If there was a possibility to do so, I would have done so.
Q. So the answer is yes, is it not, that you wanted a situation where you wanted both the benefit of pay from NKF as well as income outside NKF?
A. Yes, that is true.
Q. Thank you very much. Can I ask you to look at your affidavit of evidence at paragraph 11.
A. Yes.
Q. At paragraph 11, you say: "My CV is annexed hereto marked as 'TTD-3', setting out my education and professional qualifications and various awards I have received." That CV is at page 250 of that bundle, if you could turn to that. Is this a comprehensive and complete CV of what you did in the years covered by the CV?
A. 200 and?
Q. Page 250.
A. Yes.
Q. Is this a complete and comprehensive CV of the matters in which you were engaged during the years covered by the CV?
A. Not exactly.
Q. Why have you omitted some matters?
A. No, I did not include a job which I did in a company known as Bonyad. That was in I think 1990, 1992, I think.
Q. So this was Bonyad -- what were you doing there?
A. I was the representative in Singapore. It was an Iranian charitable foundation.
Q. How much were you earning there?
A. I was earning $7,000 at that point of time.
Q. In 1992, when this offer of full-time employment was made to you, you were also engaged with Bonyad; right?
A. I had -- I think -- I believe I gave up that vocation.
Q. No, I am asking you, in 1992. Were you not, when you were offered full-time employment in NKF, but did not take it up, also engaged with Bonyad?
A. I cannot recollect exactly.
Q. Come on, Mr Durai.
A. I think I -- yes, I think, yes, I did for a few months in 1990.
Q. Therefore, that explains, does it not, or is one of the reasons why you did not want to take up full-time employment because acting for another charity would have been a conflict?
A. No, I gave that job up.
Q. Would you answer my question, please. At the time you were offered full-time employment, that was one of the reasons you did not take it up, because it would have been a conflict?
A. No, not exactly. Because I decided to give up the vocation in that particular institution.
Q. "Not exactly" meaning?
A. No, I have decided to give up the vocation in that particular organisation, at that point of time.
Q. Why did you not include Bonyad in the CV?
A. I did not think it was material.
Q. Is it not material now that you have mentioned that you decided to only take $12,000 instead of $20,000 and gave the impression that you were willing to sacrifice for the NKF? Is it not material for the court to know that you actually had other sources of income at that time?
A. It was only for a few -- I had decided at that point of time to give up that vocation to take this vocation, so I did not think it was going to be material.
Q. Is that not why you dropped it out of this CV?
A. No, I am sorry, no.
Q. Tell us what else have you omitted from the CV. Take your time.
A. After I left Rodyk & Davidson, I was a partner with Saddique, Durai & Partners from 1993 onwards.
Q. 1990?
A. 1983 onwards.
Q. Until?
A. 1983 to 1985.
Q. Right.
A. Then I was on my own before I joined QAF.
Q. Right. What else?
A. That is what I can recollect.
Q. If it is something material and important, you would remember it and it would have gone into the CV?
A. Yes.
Q. Does the company Proton Web Solutions ring a bell?
A. Yes.
Q. What is it?
A. It is a company in India which provides call centre work.
Q. Call centre work, right. Does the NKF have a relationship with it?
A. Yes.
Q. What is the nature of that relationship?
A. I think we have contracted our call centre work with them.
Q. In other words, they do telemarketing for NKF?
A. Yes.
Q. They earn a fee?
A. Yes.
Q. Is there a member of the board of NKF who is also interested in this company, Proton Web?
A. Yes.
Q. Who is that?
A. Ms Matilda Chua.
Q. What is she in Proton Web?
A. I think she is a representative of the company.
Q. So she is the Singapore rep?
A. Yes.
Q. Of Proton Web?
A. Yes.
Q. And she therefore benefits as a result of that contract between NKF and Proton Web? In fact, she has disclosed it in the financial statements?
A. Yes.
Q. She does; right?
A. She has disclosed it, yes.
Q. Did you have any relationship with Ms Chua in terms of business?
A. Yes.
Q. What relationship was that?
A. I helped her to -- she was involved in setting up a company known as Global Net Relations in the year 2000.
Q. What does that company do?
A. It was also doing call centre work at that point of time at the height of the internet boom.
Q. Did you disclose this to the NKF?
A. No, I did not disclose it to the NKF because I just invested in the company. I participated in the growth of the company.
Q. So the situation is you were an investor in a company, in which Matilda Chua is also an investor; right?
A. Yes.
Q. And it does call centre work?
A. In Singapore at that point of time.
Q. Right. You were a director of that company as well?
A. Yes, I was.
Q. As was Matilda?
A. Yes.
Q. Right? All of this is not disclosed to the NKF; right?
A. Yes, it is not material at that point.
Q. We will come to that. Matilda Chua is also the representative of a company called Proton which benefits from NKF business?
A. Yes.
Q. And you have arranged to bring her onto the board of NKF as well?
A. She joined the board, yes.
Q. It has to be on your invitation, surely?
A. No, my colleagues invited her.
Q. And you had nothing to do with it?
A. No, I accepted it.
Q. You had nothing to do with it?
A. I had a part to play in that, yes.
Q. You did. Is it a coincidence that Proton Web and Global operated out of the same premises in Singapore?
A. I would not know that.
Q. I am asking you, sir, as an investor, and a director of Global, is it a coincidence that these two companies operate out of the same premises in Singapore? If you do not know what they are, it is 7 Temasek Boulevard, Suntec Tower. Does that ring a bell?
A. Yes, but I had given up my interest in Global sometime last year.
Q. That is not my question. My question is: is it a coincidence?
A. No.
Q. Why is it not a coincidence?
A. Because Ms Matilda Chua is involved in the companies, I presume.
Q. Now, sir, the position, therefore, is you have a commercial relationship with a lady, Ms Chua, who has a contract with the NKF through Proton Web?
A. Yes.
Q. Right? Ms Chua benefits from that contract with NKF; correct?
A. Yes.
Q. And you, in turn, have a benefit in that relationship with Ms Chua through Global Net?
A. That is not true.
Q. You in turn -- let me rephrase that -- have a benefit in the commercial relationship that you enjoy with Ms Chua in Global Net?
A. That is not true.
Q. You do not?
A. No. Because they were two separate entities.
Q. My question is: in Global Net, did you not have a commercial benefit?
A. I invested in Global Net, but I did not receive any commercial benefit at all.
Q. Right. Are you telling this court that it did not cross your mind to inform the NKF board that you have a commercial relationship with this lady who has a contract with the NKF board through another company?
A. They were two separate entities.
Q. Did it not cross your mind to tell the board that you have a commercial relationship with this lady, and that commercial relationship is at the same location as the company which NKF contracts with?
A. I felt it was two different entities and I did not do that.
Q. I am asking you now, sir, is that the right thing to do? Is not the board of NKF entitled to know before they give a contract or renew a contract with Proton that Ms Matilda Chua is in business with you?
A. This --
Q. I am asking you a question now. Give me an answer. I am giving you an opportunity to think about it carefully before you give an answer. Is it not the right thing to do to tell the board of directors that this lady to whom a contract is being given is a person with whom you have a commercial relationship?
A. The contract was already given before Ms Chua came into that particular company.
Q. Is it not the right thing to do, even after the contract is given, to declare your interest to the board of directors, Mr Durai?
A. I did not think so. I mean, I had no interest at all in Proton Web. It was a different entity in which Ms Chua was involved, and I did not see the necessity to do so.
Q. You did not?
A. I did not see --
Q. And until today you do not?
A. I did not because Global Net relationship I lost -- I stopped my interest in the company a year ago, the company was a loss-making company, and I did not bother about it.
Q. It would not affect the judgment of a director dealing with an issue pertaining to Proton Web that that director has a commercial relationship with the person behind Proton Web? Think carefully before answering that.
A. No, Proton Web was a contract which the board decided -- had entered into in the interests of the foundation long before Ms Chua went into the company. So I did not see any connections, as you impute.
Q. Let us talk about the chronology since you are keen to go there.
A. Yes.
Q. Was not Matilda Chua a member of your staff, NKF staff?
A. Yes, she was.
Q. Full-time; right?
A. Yes.
Q. Then she left; right?
A. Yes.
Q. And then she became a representative of Proton?
A. No.
Q. Then what happened?
A. She formed Global Net Relationship.
Q. Thank you. After she formed Global Net Relations, she then became representative of Proton?
A. I recollect some three years later.
Q. Three years later. Therefore, at the time she set up or she was the rep of Proton Web, you already had that commercial relationship with her?
A. Before she became, yes.
Q. Right? After that, you invited her to rejoin NKF as a director?
A. No. If I remember correctly, she declared her interests as a representative of Proton Web after she came on to the board.
Q. We know that. It is in the financial statements.
A. Yes.
Q. Which has led us to this line of enquiry?
A. Yes.
Q. My question to you is: did you not consider it relevant or material to tell the board that this director, who has joined this company, is not only a representative of Proton Web, which they know, but also had a commercial relationship with you?
A. No, I did not see a necessity to do so, because as I said to the court, I was just an investor in that company, and the company was a dying company.
Q. The two companies both provide telemarketing services; right?
A. No. Global Net does not -- I do not know what Global Net does, because its business after 2000 sank. Proton Web provides telemarketing services --
Q. Let me use your words, to save time. Both provided call centre services; right?
A. At that point of time, they do not -- the year 2003, they did not provide -- Global Net did not provide call centre services.
Q. Did it at any time do so?
A. It did so before when it started in 2000.
Q. So at some time, both companies provided call centre services; right?
A. Yes.
Q. Both were run by Matilda?
A. Matilda was involved in both the companies.
Q. Both were run from the same address?
A. No, one was being run from India, and one was operated in Singapore.
Q. Mr Durai, you should not waste time. You know, do you not, that Proton Web operated out of Singapore as well. They have an address. I just gave it to you. 7 Temasek Boulevard, Suntec Tower?
A. They probably had the offices in Singapore.
Q. You must have known. It cannot be "probably" because this is the same office as your company?
A. No, I had not gone to that company at all -- the offices at all, for quite some time. I have not been to this office at all.
Q. You see, Mr Durai, do or did the directors of NKF not have a right to know of that commercial relationship between you and Matilda Chua, so that they would be aware, the next time the issue of Proton Web surfaces, of that interest of yours? "Yes" or "no"?
A. No, I do not think so because, as I said to the court, Global Net was already a dying company. It was dormant and I had given up my interest last year --
Q. At the time that it was not dead; at the time that it was alive.
A. The contract had not come up for renewal. The contract is still going on with Proton Web.
Q. Mr Durai, since you want to talk about dates, when was the contract for Proton Web?
A. About two years ago, I think we started that, two and a half years ago.
Q. So 2002?
A. Cannot recall.
Q. Right. At that time, Global Net was not a dead company; right?
A. No.
Q. It was alive?
A. Yes.
Q. Right? And operating; correct? You have to answer.
A. No, it was already doing very badly.
Q. It does not matter.
A. Yes.
Q. I am not asking you whether you had done marvellously or not; it was alive and operating?
A. Yes.
Q. So at the time that NKF had a contract with Proton Web, you had a commercial relationship with the local representative of Proton Web; correct?
A. Yes, I was a shareholder of the company, yes.
Q. And a director too?
A. Yes.
Q. Correct? So please put aside issues of the company had died or that the contract had already been given. Did you or did you not participate in the decision to give the contract to Proton Web?
A. No, I did not.
Q. I beg your pardon?
A. I did not.
Q. Did you abstain?
A. Yes, I abstained.
Q. On what grounds?
A. I left it entirely to my colleagues.
Q. On what grounds did you abstain?
A. I abstained because I knew the main shareholder of Proton Web.
Q. I am sorry, so you are saying that the minutes would reflect that you abstained from the decision to grant the contract to Proton Web?
A. No, I did not make -- I did not get involved in the decision-making process.
Q. No, no, no. You see, Mr Durai, my question is a simple one. Answer it.
A. Yes.
Q. You are saying that the minutes would reflect that you abstained from that decision because of what you explained, that you knew the shareholder?
A. No. Can I explain the sequence, your Honour?
Q. Answer my question.
A. I cannot recollect that, but I would -- in the whole process of offering the contract, my colleagues went to India to appraise and find the best contract possible for the NKF at the best possible price.
Q. My question has nothing to do with the due diligence.
A. Yes.
Q. My question has to do with the decision to appoint Proton Web?
A. Yes.
Q. I give you another chance. Did you or did you not abstain from the decision to grant the contract?
A. I do not think I did.
Q. Okay. So now you have changed your evidence.
A. No, I cannot recollect.
Q. Okay, so there are three now. One is "I abstained" --
A. No, I am just saying --
Q. One second. One is "I abstained", one is "I do not think I did", and third is "I cannot recollect"?
A. No, I am saying I cannot recollect what I actually did. I believe I participated in the decision.
Q. Thank you. When you participated in the decision for NKF to grant that contract to Proton Web, did you disclose your interest in that commercial relationship with Matilda Chua?
A. I did not, because at that point of time, Matilda Chua was not involved with Proton Web.
Q. Are you sure?
A. I believe so.
Q. Are you saying that she only became involved after that?
A. I believe so.
Q. Mr Durai, please be specific about your facts. Are you saying, with your hand on your heart, that you are sure Matilda Chua was not involved at that time?
A. I believe so.
Q. If you believe so, then why did you earlier say that you had to abstain from the decision? If she had no involvement in Proton Web, why did you give an answer earlier that you were so sure that you abstained?
A. No, the reason is because the main shareholder of Proton Web at that point of time was -- is a person whom I knew.
Q. Who is that?
A. Mr Pharis Aboobaeker.
Q. How did you know him?
A. I met him in India.
Q. Do you have any commercial relationship with him?
A. No, I do not have.
Q. Why was there a need to abstain?
A. Because I knew him and I did not want to give the -- I wanted -- I did not want to give the impression there was any bias.
Q. But of course you must know people with whom you are contracting. Why is that a reason to abstain? You mean your standards are so high that because you know a person, you would abstain; is that right?
A. That is the way I felt.
Q. Thank you. So if using those standards, did you not consider it relevant, therefore, to inform the board of your commercial relationship with Ms Matilda Chua, who has an interest in Proton Web or are we now applying a different standard?
A. I did not see the need at that point of time because I felt that -- I honestly did not see the need.
Q. What has happened, Mr Durai, is this, is it not? It is all a very convenient, wonderful, comfortable arrangement. Matilda Chua benefits because the contract is given to Proton, and of course you do not disclose your interest in the relationship with her. You benefit because you get into an arrangement with Ms Chua to do the same kind of services out of Singapore using the same address. Everybody is happy, the board is none the wiser and the donors are completely ignorant?
A. That is absolutely untrue.
Q. Then why did you leave it out of your CV? Why if there is nothing to be concerned about this did you leave this out of your CV?
A. I was just a director and shareholder of a company. I did not think it was a big company. It was not material to me.
Q. You see, Mr Durai, you have included your directorships, have you not, in your CV, at page 251?
A. Yes.
Q. But this is far more important than a mere directorship. It is also a shareholding. Why did you not disclose that?
A. This was a small loss-making company. I did not think it was material.
Q. We now know why you did not think it was material, Mr Durai. You were just concerned that you might volunteer information which might now come back to haunt you?
A. That is not true at all.
Q. Let us move on, Mr Durai. Have you also not disclosed any other appointments, interests?
A. I cannot recollect anything else.
Q. You are quite sure?
A. I am unable to recollect all.
Q. Are you prepared to say that there is nothing else apart from Bonyad and Proton Web and Global Net?
A. No, I may be -- I may have -- you mean directorships? I do not understand.
Q. Yes, directorships.
A. I have a few dormant companies of which I am a director.
Q. All right, so I think logically you would have been a director of them before they were dormant; right?
A. Yes.
Q. You would not just take on directorships because --
A. Yes, yes.
Q. When you say a few, you mean, what, more than five?
A. No, three or four.
Q. And what do these companies do?
A. Nothing. I mean, I just formed them a long time ago, and they are just around.
Q. What are they? They did nothing from the date of incorporation?
A. Yes.
Q. Completely, just shelf companies?
A. Just shelf companies in a way.
Q. Why did you incorporate them?
A. At that time, when I was a partner in Rodyk & Davidson, I incorporated the company with the purpose of probably looking at other business opportunities thereafter. They have just been lying dormant.
Q. Have any of those companies been active?
A. Not exactly, no.
Q. No, do not say not exactly. It is either "yes" or "no".
A. No.
Q. Not at all; right? Not at all?
A. No.
Q. Can I ask your about this company called Bonyad, B-O-N-Y-A-D?
A. Yes.
Q. What is that?
A. That was the company I was working for at that point of time.
Q. That is the Iranian one?
A. The Iranian one.
Q. It is called Bonyad Marketing Industries Pte Ltd. It does not sound like a charity to me.
A. It was a charity organisation of the Iranians.
Q. Right, but what was Bonyad Marketing Industries Pte Ltd?
A. I think that was the way they formed it in Singapore.
Q. What was it doing in Singapore?
A. It was a company which I was involved in purchasing materials for the Iranian market.
Q. So it was not charity work?
A. No, it was a charity which owned that particular company.
Q. What was your role in that company?
A. I was helping them to do that.
Q. Sorry?
A. I was helping them in running the Singapore office.
Q. What was your role in that office?
A. Helping them to source the materials for whatever possible.
Q. What was your position in that company? I beg your pardon.
A. I was just -- I think I believe I was an employee of the company.
Q. What was -- A. Just a manager. I cannot recall.
Q. Okay. Then we have other companies like Traflex Enterprises, Silicon Apple -- what are these companies?
A. These were dormant companies.
Q. Always dormant?
A. Yes.
Q. Never, never operated at all?
A. Yes.
Q. And you were in Qaf, were you not?
A. Yes, I was in Qaf.
Q. And AFP Land?
A. AFP Land may be one of these companies formed under Qaf, I do not know.
Q. AFP Land?
A. I would not know. It may be one of the companies that formed part of Qaf, I think, at that point of time.
Q. But I have here the record saying that you remained a director of AFP Land from 1991 to 1997?
A. I cannot recollect that particular company.
Q. Did you disclose these directorships to NKF?
A. No, I do not know about AFP Land.
Q. Are you saying that you cannot remember being a director of AFP Land Ltd?
A. No. I cannot recollect.
Q. This is 1991 to 1997, six years?
A. Yes, I would not know. Something new to me.
Q. Could I take it that it follows, therefore, that these things were not disclosed to the NKF board?
A. No, I would not know. I would like to have a look at the document on AFP Land. What does the company do?
Q. I will show you. It is a people profile information search from BizNet. (Handed). Do you see it?
A. Yes. One of the companies I think I did not include is a company in which I served as director in Malaysia, Overseas & General. I am afraid I missed it here. Overseas & General. But I do not know about AFP Land.
Q. You do not know about that?
A. I do not know about AFP.
Q. This Overseas & General, what did it do?
A. They were an Australian company in which I was a director.
Q. Until when?
A. Until last year.
Q. What does the company do?
A. The company was dealing with lumber concessions in other parts of the world.
Q. What was your role there?
A. I was just a director.
Q. So you would attend directors' meetings?
A. Yes, two or three times a year.
Q. And you would get directors' fees?
A. Yes.
Q. All of this was disclosed to the NKF?
A. The NKF was aware of this.
Q. No, that is not my question. Were these disclosed to the NKF, Mr Durai? Please, that is all I am asking.
A. No, I did not disclose it.
Q. So how many sets of directors' fees were you earning while being the full-time CEO of NKF which were not disclosed?
A. No, I was --
Q. Answer my question, please.
A. No.
Q. How many sets of fees were you earning while you were full-time CEO of NKF which fees you did not disclose?
A. Can I just go in sequence? I was a director of Amcol Holdings from 1992 to 1996, for which I was paid fees of $25,000 a year. Then subsequently I was a director of Overseas & General for a couple of years, for which I was paid $25,000 a year. These were the two companies in which I was paid directors' fees. And I believe for TV12, I was paid some nominal sum.
Q. What is that nominal sum?
A. I cannot recollect. That was for the period 1994 to 1997.
Q. The position is this, is it not, while you were expected to be and paid as a full-time CEO, you were earning fees outside NKF, which was not disclosed to the NKF or to the public; is that correct?
A. That is correct. The NKF board gave me the liberty of doing so.
Q. Are you saying that the NKF board actually allowed you to do this?
A. Yes, I was given the freedom of doing anything of my own together with my job.
Q. Where is that freedom contained in? Is it in some document or contract?
A. I believe so, it is provided for in the correspondence with me.
Q. What correspondence is that?
A. Letters of appointment, the others.
Q. And your letters of appointment actually provide for that?
A. Yes.
Q. And they allow you to take on these thing without having to disclose what they are or how much you have earned?
A. No, there was no necessity to do so.
Q. No, my question is, they allowed you to do this without having to disclose how much you earned; right?
A. Yes.
Q. And what these appointments are?
A. Yes.
Q. Correct? Therefore, the position is that while the world thinks that you are a full-time CEO, you have actually been earning additional sums of money doing work unrelated to the NKF; right?
A. It is a directorship. It is a small -- it is just appearance.
Q. Directorships are not appearances, Mr Durai.
A. I was --
Q. They are serious appointments requiring people to focus on the work that has to be done; do you agree?
A. Yes, I attend board meetings, yes.
Q. You have to spend time on these matters; is that not right?
A. I did not spend very much time.
Q. Yet you took the fees?
A. Yes, I attended board meetings.
Q. You see, Mr Durai, your CV is yet another illustration of the lack of transparency with which you operate. You do not come clean on what you do, you do not tell the board what you do, how much you earn, you do not tell the board about your commercial relationship with a person who has a contract with the NKF; is that transparency?
A. They were not very consequential in my opinion.
Q. They are not consequential? $25,000 a year is not consequential? Is that your evidence?
A. Yes, I was attending a board meeting and being paid. I did not think it was.
Q. So you are saying $25,000 is pittance? 10:58 A. No, it was not consequential in my opinion.
Q. To you it is not consequential?
A. Yes.
Q. And it is also not consequential to you that you have this commercial relationship with Ms Chua which you did not disclose; right? Not consequential?
A. Yes.
Q. Yes?
A. Yes. I think it was --
Q. Thank you very much. Can I move on to your other benefits. You have given evidence about the cars that are available to you?
A. Mm-hmm.
Q. Could you look at your affidavit?
A. Yes.
Q. Paragraph 173. Before we go there, I am told by my colleagues that you have not given discovery of your appointment letters. Are you prepared to do that?
A. Yes.
Q. Would you arrange for that to be given to us?
A. Yes.
Q. Thank you very much. This afternoon?
A. I should think so, yes.
Q. If you look at paragraph 173, you say that the NKF has a pool of eight cars; right?
A. Yes.
Q. And there are a number of drivers who are employed?
A. Yes.
Q. To drive those cars?
A. Yes.
Q. You have the right to use any of those cars; is that not right?
A. Yes.
Q. Any time you want?
A. Yes.
Q. For your own personal use as well?
A. Yes.
Q. And you have the right to use any of the drivers that you want at any time for your own personal use as well?
A. What do you mean by personal use?
Q. In other words, if you need the driver to take you somewhere for a reason unconnected with your NKF work.
A. Yes.
Q. Thank you very much. Over and above that, do you have your own private car that you paid for?
A. Yes, I have.
Q. You do? Who uses that car?
A. Sometimes it is used for the office, for important guests.
Q. Yes. But it is also used by your family; right?
A. Yes.
Q. By your wife?
A. Yes.
Q. You also have a benefit in relation to that private car, do you not?
A. Yes, they pay my road tax for that car.
Q. Sorry?
A. The road tax.
Q. What else?
A. The road tax and the repairs for the car.
Q. And maintenance?
A. And maintenance of the car.
Q. Therefore, over and above your salary and your bonuses, over and above your directorships where you get fees, you have available to you a fleet of cars and a group of drivers, which you can use for both business and personal reasons, and over and above that, you have a car at home which the NKF pays for in relation to road tax, repairs and maintenance?
A. I just want to make one correction, "for personal use". I do not use the car for personal use, in the sense -- I do not know what -- if you are saying -- if I go for meetings and the driver takes me and goes.
Q. We have your answers on the record already.
A. Yes.
Q. Now answer this question. Over and above this pool of cars and pool of drivers available to you, you have a car sitting at home for the use of your wife and NKF pays the road tax, the repairs and the maintenance for that car?
A. That car is also used --
Q. Is that "yes" or "no"?
A. Yes.
Q. Right?
A. Yes.
MR KHOO: He wanted to say something else. "The car is also used ... "
MR SINGH: Please answer.
A. The car is also used for NKF purposes.
Q. Of course. So when you decide that you want to drive that car to work, then you drive that car to work?
A. No, the car is used for important guests, functions and others to take the guests around, the car is used.
Q. That is not what you say in your affidavit?
A. But that is the truth.
Q. Look at paragraph 173. At paragraph 173 you say:
"Six officers of the NKF, including myself, were provided the use of a car from the NKF's pool of eight cars, with or without a driver employed by the NKF. The other five comprise four doctors and a senior nurse educator. The cars [in other words, the NKF cars] are also used to transport VIPs and other guests who visit the NKF to learn more about our activities."
Right? So in your affidavit, you say that the cars that are available for the VIPs are the NKF cars; correct?
A. No, I would like to make an addition. My car is also used.
Q. You do not say that in your affidavit?
A. Yes, but I would like to say that is the truth, my car is used.
Q. Let us just get this right. You have the right to use any of the eight cars; right?
A. Yes.
Q. And any of the drivers, all employed by NKF?
A. Yes.
Q. And the cars are all paid for by NKF?
A. Yes.
Q. Over and above that you have your private car?
A. Yes.
Q. NKF pays for the road tax, maintenance and repairs for that car?
A. Yes.
Q. What car is that?
A. That is a Mercedes Benz.
Q. What model?
A. A 200.
Q. So the donations which are being given by the public also go to repairing a Mercedes Benz that is used by your wife?
A. By the family and also for the NKF.
Q. And the donations which are given which the public are also used to pay for the maintenance and road tax for a Mercedes Benz for your wife?
A. No, as I was saying, it is also for the use of the NKF at times.
Q. I suggest to you, sir, that it is not for the use of the NKF because -- that is not your evidence, according to your affidavit.
A. The truth is the cars are used for purposes of NKF also.
Q. What really happens is your wife and family has the benefit of one car, and you, whenever it pleases you, have the benefit of another with a driver, all from donations; correct?
A. These are my entitlements and I use them.
Q. Thank you very much. Let us talk about the NKF reserves. In March/April 2004, as we learnt yesterday, Salt published an article which disclosed that NKF's reserves as at 2002 were $189 million; do you remember that?
A. Yes.
Q. Would you just bring us all up to date, and tell us, as of now, 2005, July, what are the reserves?
A. $262 million.
Q. $262 million. So $70 million difference between 2002 and now?
A. Yes.
Q. So it increases by about, what, $25 million to $30 million a year?
A. $24 million a year.
Q. Given current projections, by the end of this year, the reserves should go up to $280 million?
A. Yes.
Q. $280 million?
A. Yes.
Q. Tell me whether the statement I now make to you is true or false. If you stopped all fundraising activities and concentrated purely on treating kidney patients, the NKF can continue for at least another 30 years without raising a single cent. True or false?
A. False.
Q. I give you another chance and I will come back to this. True or false, that if you just focused on saving kidney patients -- forgetting education, fundraising, general -- the NKF, if it stops today, has enough money to continue with that mission for another 30 years?
A. No.
Q. False?
A. Not correct.
Q. Is it false?
A. I do not agree.
Q. No, it is either true or false.
A. False.
Q. False, all right. Let us go through this area. Before we do that, you tell us, if I am wrong about my 30 years and using my hypothesis, how many years would it last?
A. Can I explain, your Honour.
Q. No, I want a number.
A. I cannot do a simple calculation.
Q. Just use my assumptions, which is just focus on dialysis, your patients?
A. Yes.
Q. Put aside education, general, fundraising, just focus on people, the patients who are receiving dialysis?
A. Yes.
Q. Project the increase in numbers over the years using the average in the past few years, use your $262 million or $280 million for them. How many years?
A. I am unable to answer this question because there are many presuppositions. The programme is dependent on a concept of co-payment, where the patients and their family members contribute, and I cannot make a --
Q. Assume, sir, that they continue to co-pay and contribute using the same average of their co-payments in the past three years. Just do a straight line.
A. I am unable to really answer this question because I am not very conversant -- the mathematics.
Q. I hope you are conversant because you are being paid a lot to be conversant, so I am asking you again. You know what the financials of NKF are?
A. Yes.
Q. You know that the NKF collects about 90 to $100 million a year?
A. Yes.
Q. You know that out of that $90 million to $100 million, about $30 million goes to kidney patients?
A. Yes.
Q. Out of that $30 million, about $20 million is recovered from those patients?
A. No --
Q. "Yes" or "no"? If I am wrong, tell me so I will take you to the documents.
A. You are wrong.
Q. All right, go ahead.
A. We raise about $64 million from the public. The patients pay about -- I think about 30-over-million on the concept of co-payment, and we raise the remaining -- we use the remaining amounts to pay for the cost of the dialysis. So it is about --
Q. All right. Sorry, go ahead.
A. So it is about $30 million. We are subsidising the patients by more than 30-over-million, nearly 50 per cent of the fees. So if you do a --
Q. Let me take you to a document so we can make this all clear. Can you turn to the core bundle, page 122. Mr Durai, at page CB121, this is page 26 from the 2003 accounts; do you have that?
A. Yes.
Q. It reads: "Notes to the financial statements. For the financial year ended 31st December 2003."
A. Yes.
Q. Do you see that?
A. Yes.
Q. If you go to page 122, there is a breakdown called "Income and expenditure statement -- all fund" for the same period?
A. Yes.
Q. It is broken down in two columns?
A. Yes.
Q. On the extreme left is "Fundraising". In other words you describe how much you get from fundraising and at the bottom you describe how much you spend?
A. Yes.
Q. For that purpose. And the net surplus there is $51 million?
A. Yes.
Q. Just for the record, $68 million is raised from fundraising?
A. Yes.
Q. But to raise that amount, $16.5 million had to be spent?
A. Yes.
Q. The surplus is $51.6 million?
A. Yes.
Q. Then you have public relations and education, where income is $6.6 million, expenses $10 million and then you have a deficit -- sorry, $6,000, not 6 million, I beg your pardon. You raise for public relations or your revenue for public relations is $6,000, but your expenses are $10 million, so your deficit is $10.06 million?
A. Yes.
Q. Then you have dialysis and transplantation, which is the one that I have been talking about. Your total income is $24.4 million?
A. Yes.
Q. Where does that come from?
A. Patient fees.
Q. So this is the co-payment; right?
A. Yes, co-payment.
Q. For the dialysis, for the entire year, the patients in aggregate pay $24.4 million?
A. Yes.
Q. But you spend, NKF spend $31 million, right at the bottom?
A. I cannot read that. I am not very conversant with this point.
Q. Sorry?
A. I am afraid I cannot give --
Q. You cannot read as in --
A. I cannot --
Q. Is it a visual problem or is it a question of working out the number?
A. Working out the number.
Q. You had no problem with the other two columns, sir. Let me read it to you. When you do dialysis for these patients, you spend $31.6million in 2003, out of which you recovered $24 million from the patients?
A. Yes, yes.
Q. Therefore, the deficit is $7.1 million?
A. Yes.
Q. Correct? Then you have general where you receive 7.6, spend 10.8, deficit of 3, et cetera, et cetera. Now that we know from your own statements that every year, the out of pocket, the true out of pocket for NKF is between $7 million and $8 million?
A. Can I explain this.
Q. All right.
A. I think you should ask my colleague Mr Alwyn Lim to explain this because it does not take into account the whole infrastructure costs, the whole fundraising costs, in coming out of the actual cost of the dialysis.
Q. It does.
A. I am unable to give a proper account of this. My colleague Mr Alwyn Lim, who is the chairman of the finance committee, would be in a better position to explain this. I will not be able to do justice to the court by explaining this.
Q. I am afraid I will have to trouble you with it.
A. I am afraid I will not be able to do justice to this.
Q. You are a director of the board?
A. Yes.
Q. In fact, you are a director of a few boards?
A. No, I am afraid I must tell you honestly, I cannot give a true appraisal of this. The best person would be my colleague Mr Alwyn Lim.
Q. Whether you can give a true answer or not is another matter, but -- A. I cannot explain this clearly.
Q. Answer my questions, please. Are you a director of the board of NKF?
A. No, I am not.
Q. You are not?
A. I am not.
Q. Are you the CEO of the board?
A. Yes, I am.
Q. Do the financial statements come through you?
A. Yes.
Q. Do you look at them?
A. I look at generally everything, but my colleague takes --
Q. Do you satisfy yourself that the financial statements are true?
A. Yes.
Q. You do. To satisfy yourself that they are true, you need to understand them; right?
A. Yes.
Q. Therefore, it follows that for these accounts, you not only satisfied yourself that they were true, you understand them?
A. No, what I am saying is the way it is explained, it is not something I can explain very clearly to the court the way my colleague Mr Alwyn Lim can explain.
Q. You are also a director of other companies?
A. Yes.
Q. Some public-listed?
A. Before.
Q. Before, right. Where accounts are tabled and approved?
A. Yes.
Q. And you would have applied your mind to the accounts before approving them?
A. Yes.
Q. You would have understood these accounts?
A. Yes.
Q. And therefore you have considerable experience in studying, looking at, understanding and approving accounts?
A. Yes.
Q. This is an organisation with which you have been associated for how many years?
A. 37 years.
Q. 37 years. By the time we come to the 31st December 2003, you would be very familiar with its operations and finances?
A. Yes.
Q. Having regard to that, can you please now go to the third column?
A. Yes.
Q. Which says that for dialysis and transplantation, $24.4 million is spent a year?
A. Yes.
Q. Sorry, is received a year from the patients and $31.6 million is spent by NKF?
Yes. These are direct expenses insofar as dialysis is concerned.
Q. Yes, I am only interested in dialysis because -- and I will show you that it covers the relevant costs. According to this statement, the deficit for the NKF in the year 2003 was $7 million for dialysis?
A. Purely for dialysis.
Q. Thank you. You said we have to look at infrastructure costs, et cetera.
A. Yes.
Q. Look at expenses. You will see that the expenses cover everything from audit fees, depreciation, greeting cards, staff costs; do you see that?
A. Yes.
Q. A&P, beverages and refreshments, brochures and publications, computers, exchange loss, insurance, maintenance, medical supplies, office supplies, rental of equipment, rental of premises, staff expenses, staff training, transport, travelling, utilities. In other words, the entire infrastructure needed to perform dialysis is expensed off in that column; right?
A. Purely for dialysis, yes.
Q. Therefore, if we are only looking at dialysis for patients, we are not talking about fundraising, PR, education, we are looking at only those patients who need their lives saved and for whom donations are being received, every year -- sorry, in the year 2003, NKF was out of pocket by only $7 million, only for dialysis?
A. No, but the point is without the whole infrastructure, whatever it is, you cannot get this operation going.
Q. No, no, I am asking you to stop your operation today. Let us say at the end of today's hearing, you decide and the board decides to close off NKF's operations, no more fundraising, no more PR, no more education. Let us take all our reserves and use them for dialysis only. I come back to my earlier question. On that basis, true or false, the reserves will last at least 30 years?
A. I honestly cannot give a -- appraise that judgment, because --
Q. Please try, sir. Take your time. We are not pushing you to give a hurried answer.
A. I am just saying, because I am not very conversant with the way these accounts are done, I will not be able to give a considered judgment, rightly or wrongly, to the court.
Q. Let me tell you how it works. You have $262 million now at the end of year $280 million, but I am suggesting we close shop today, so $262 million. Deficit of $7 million a year. 262 divided by 7, that is nearly 40 years. Is that not right?
A. On the basis that you are saying that the patients continue to pay, everything goes well, from the reading of this, it appears so.
Q. Thank you very much. Does the public know that NKF has enough reserves for the patients to last almost 40 years without needing one more cent from them. Does the public know that?
A. We cannot say --
Q. "Yes" or "no"?
A. No, we cannot say that to the public.
Q. Why not?
A. Because it is -- there is a presupposition that the patients will continue to pay indefinitely and everything goes according to what it is -- how it is being run now. Because, at the moment, we enforce the concept of payment. There is MediShield
available, MediSave available. We do not know what the future is going to be. So as leaders of the organisation, we cannot take a chance and say, "This is what is going to be for the next 30 years." We have to ensure that there are enough reserves for the patients for the future. We have to ensure that long after we are gone, there are reserves to continue. We are running a charity which depends on the vagaries of human sympathy. So I cannot definitely say that.
Q. Let us see what you have told the public, and you can tell us whether, like the air travel, there has been honesty.
Can I ask you to go to CB208. This is a letter dated 9th April 2004 from your chairman, Mr Richard Yong, to the newspapers, meant for it to be published?
A. Yes.
Q. It was published?
A. Yes.
Q. And read by the donating world?
A. Yes.
Q. The headline is, "Why the money is not enough".
A. Yes.
Q. It starts: "I refer to recent articles in the newspapers regarding the NKF's proposed tie up with Aviva and NKF's reserves, as well as the issue of expenses.
Expenses far below accepted guideline."
Then Mr Yong talks about the percentage per dollar going to different areas of activity?
A. Yes.
Q. Then if you go to the next line, it says: "Current reserves enough for only three years."
A. Yes.
Q. Do you see that heading?
A. Yes.
Q. Is that honest?
A. He was speaking on the supposition -- Q. No, answer my question, please. The subheading used by Mr Richard Yong is, "Current reserves enough for only three years"; is that true or false?
A. That is not accurate, yes.
Q. It is not accurate; in other words, it is false?
A. Yes.
Q. Correct?
A. Yes.
Q. It is false?
A. Yes, it is not correct.
Q. Did you correct it?
A. No, I did not.
Q. Sorry?
A. I did not.
Q. Why not?
A. All along, whenever we gave statements, we went on the basis that if the patients do not pay the moneys, the moneys would only be sufficient for three years.
Q. No, no --
A. So the statement as -- can I just correct myself?
Q. Please.
A. We always took the point that if the patients do not pay the moneys for dialysis, the reserves would only last for three years. That is the way we answered the public.
Q. Okay. Mr Durai, you are digging a deeper hole for yourself because if the patients do not pay for themselves for dialysis, your expenses per year are $30 million; right? If you get not one cent from the patient, it is $30 million; right?
A. No. You have to --
Q. No, please, do you want me to go back to the document again? Your total expenses are $31 million, you recover about $20 million-something, so your net deficit is $7 million?
A. But it does not --
Q. You said earlier you were worried that the patients would not pay. If the patients do not pay, you still have to pay 30-over-million; right?
A. No, it does not include the cost of running the whole operation, to raise moneys, to generate the organisation, to get the moneys, to fund the programme.
Q. Mr Durai, please, forget further fundraising. We are talking about using reserves for the patients. You have now changed your position, but I will come back to it because you earlier said Richard Yong made a false statement and you did not correct it.
A. No, no --
Q. You then changed your position to say, "No, no, we were concerned that the patients may not co-pay." Let us go on that hypothesis. If the patients do not co-pay, the NKF's bill would be $31 million a year?
A. It does not include the cost to raise the $31 million a year.
Q. Please, Mr Durai, please. I am really trying to get you out of the stand by lunch time, if possible, so please answer the question. The NKF's costs per year for dialysis are $30 million-odd; yes?
A. Yes.
Q. Even if the patient does not pay a single cent, 262 divided by 30 gives you at least eight to nine years; right?
A. Yes.
Q. Has there been any year in which patients have not paid anything?
A. No.
Q. What is the worst year?
A. The patients have been consistently paying.
Q. Correct. So using that consistent average, you know that, going forward, your deficit is going to remain at $7 million, $8 million, at worst $10 million; right?
A. Yes.
Q. At $10 million, you still have 26 years of reserves; right?
A. At that point of time, yes.
Q. You have accepted that Richard Yong made a false statement to the public and you have accepted that you did nothing to correct it; right? Why, Mr Durai, did you practise this deception on the poor, innocent donors of Singapore?
A. We went on the basis all the time that if the programme collapses tomorrow, this is the amount of money required --
Q. And that is the basis I am going on as well, sir, and we have 26 good years ahead of us. Why did you and Richard Yong conspire to practice a deception on the donors of Singapore?
A. It is not a deception. The moneys ultimately went back to the donors.
Q. Answer my question. I am going to ask you for the third time: why was there this conspiracy to deceive?
A. There was no conspiracy to deceive.
Q. A false statement was put out, you knew it was false, you left it uncorrected. That is not a conspiracy?
A. It is not. I did not think of it in that way.
Q. The purpose of putting out that false statement was so as to give the public the impression that NKF continued to be in dire need of funds for those poor patients. True?
A. Yes, NKF required funds to support the patients, yes.
Q. So that the donors will ignorantly donate more and more; true?
A. The donors will donate, yes.
Q. And the more they donate, the more your performance ranking goes up, the more your bonus; true?
A. No.
Q. Because yesterday you said you got your bonus based on your performance, so you have a vested interest in publishing untruths to inflate the donations so that, ultimately, you inflate your bonus?
A. No, I did it for the interests of the people of Singapore, to build more and more programmes, go from dialysis to prevention to cancer, to taking care of children. And all the moneys that came in went for the people of -- are preserved and kept for the people of Singapore to increase the number of programmes for the benefit of the people of Singapore.
Q. This is not the only place where the false statement was made about three years; is that not right? You have also made that false statement in these proceedings; do you agree?
A. Can you confirm that?
Q. Sure. Can you pick up the setting down bundle -- before I take you to that reply, I want you to look at the article itself. It is at 2DB, page 335. Do you have the article? At page 335 is a photo of a very anxious Mr Richard Yong, with a caption which reads: "I couldn't sleep, I couldn't eat. Who were we to play God?" Do you see that?
A. Yes.
Q. Then below it is reported: "NKF chairman Richard Yong on how the foundation ran dry in 1986 and had to choose among its 32 patients who should continue with dialysis, and who would have to be sent home with morphine to die. It hit home then. It was important to have 'healthy reserves that can withstand even the most dire economic times'."
Implicit in that message was, "Some years ago, we ran out of money"; right?
A. Yes.
Q. "There were people lying down in the beds and we had to choose who to give that money to and who had to go home"; right?
A. Yes.
Q. "And, therefore, we need the comfort of healthy reserves"?
A. Yes.
Q. "So that that situation will not arise again"?
A. Yes.
Q. In other words, that the reserves will be there for the patients who need the money?
A. Yes.
Q. Not for fundraising; right?
A. Yes.
Q. Go to page 336, paragraph 26:
"I couldn't sleep; I couldn't eat. Who were we to play God? ... It was important to have 'healthy reserves that can withstand even the most dire economic times', and self-generated income 'so that we can be independent, instead of on our knees, poor and begging for life'."
In other words, without any more donations, we can keep these patients alive?
A. Yes.
Q. Yet, the suggestion was made that it is only for three years. That is another false suggestion, is it not?
A. Not an accurate suggestion.
Q. Sorry?
A. Not correct.
Q. I used the word "false"; do you agree with me?
A. It is a matter of opinion.
Q. Is there a difference in your view?
A. No, it is not a correct comment.
Q. Is it true?
A. It is inaccurate.
Q. Answer my question, sir, please. Is it true or false?
A. "False" implies an intent to deceive. I cannot comment on that.
Q. You can, actually, because --
A. I do not think there was any intent to deceive.
Q. After what we have heard, after what we have seen from the accounts, you still say that there is no intent to deceive?
A. No. I mean, we honestly believed that we should raise as much money to help the patients for the future. That is the way my colleagues and I work in the foundation.
Q. Are you prepared to take out an advertisement in tomorrow's papers apologising to Singaporeans to say, "We did not intend to deceive but, unfortunately, you have been deceived. The money is not going to last merely three years, it will last between 30 and 40 years." Are you prepared to do that?
A. No, I am not. I am not prepared to do that. I am just saying that we wanted to raise as much money for the patients' future. We wanted to keep a deposit --
COURT: Mr Durai, it will help if you answer the question.
A. No.
MR SINGH: Why? Why are you not prepared to come clean? We already know that, to use your word, there was an "inaccuracy". Why are you not prepared to come clean?
This is people's money, you know.
A. It is for the people.
Q. These are people who earn so little, giving. Why are you not prepared to tell them the truth?
A. The money is for the people.
Q. And your taps.
Now, look at the reply at the setting down bundle at tab 3, page 11, the reply. In relation to this allegation of the reserves, this is what NKF pleaded at paragraph (7):
"[NKF] ... will contend that as to the allocation to reserves, the cumulative figure of $189 million in 2002 was sufficient for only three years of support of the 1st plaintiff's [in other words, NKF's] dialysis and various healthcare programmes and that since the 1st plaintiff relies entirely upon public support, it would be grossly irresponsible not to allocate a significant sum annually to reserves and thereby ensure that patients on dialysis would not suddenly be faced with the end of their treatment and their lives put at risk."
In this reply, the rationale for the reserves was to ensure that the patients who are now being treated will not have their lives put at risk; is that not right?
A. Yes.
Q. And on the basis of that rationale, we now know that the statement that $189 million will only last for three years is false?
A. Yes, it is not correct.
Q. Is it not --
MR KHOO: Your Honour, I think to be fair to the witness, one must look at the reply itself. The reply says:
"... for only three years of support of the 1st plaintiff's dialysis and various healthcare programmes ..."
So this reply does not only apply to dialysis. It applies to other programmes as well.
MR SINGH: Mr Khoo may not have followed my cross-examination again. The rationale cited in the reply for the reserves was to ensure that those who are now being treated continue to live. On that basis, I asked: is it true that the statement that $189 million is only good for three years is true or false? And Mr Durai, without any assistance from counsel, admitted it is false.
MR KHOO: If it is for dialysis, yes, it is not correct. But here it says "dialysis and other healthcare programmes".
MR SINGH: Right. Let us take what Mr Michael Khoo says and given that he has asked me to review this issue, I am sorry, Mr Durai, I have to trouble you with the accounts again. Please go to the core bundle at page CB122, the accounts that we saw a moment ago.
In addition to dialysis, the NKF conducts public health education programmes; right?
A. Yes.
Q. That would be under the column, "Public relations education"; correct?
A. Yes.
Q. The deficit for that is $10 million a year?
A. Yes.
Q. Let us take the reply at face value, as your counsel has asked me to do. The total deficit for dialysis and education programmes is $17 million a year?
A. Yes.
Q. At $262 million in reserves, you have 15 years, correct, 262 divided by 17?
A. Yes.
Q. 15 years. Even on what your counsel has said, is it not true that to say that the $189 million reserves are good for three years -- I am sorry, Mr Khoo wants to assist again.
MR KHOO: I am sorry. You cannot take 262, because that is on today's value. We are talking of these figures which relate to 2003. Thank you.
MR SINGH: That is fine.
MR KHOO: Because it is going to be misleading the witness.
MR SINGH: In 2003, your reserves were, what, 220?
MR KHOO: 189 -- sorry.
MR SINGH: I think Mr Khoo should read the papers before he stands up.
MR KHOO: Sorry.
MR SINGH: In 2003 it was, what, 220?
A. About that.
Q. 220 divide by 17 equals 12.9, 13 years; right?
A. Yes. Q. Sorry, does Mr Khoo want to say anything else now? Okay. At three years, when the truth is 13 years, is that false?
A. Can I just say something? It is based on the supposition that the patients are paying the amount of moneys every year and that is highly dangerous.
Q. Let us take the supposition that they do not pay, which has never happened before. So we have a deficit of $31 million plus $10 million. That is $41 million. At $220 million in reserves, you have more than five years of reserves; correct?
A. Yes.
Q. On the most artificial supposition ever; correct?
A. (Witness nodded).
Q. But every time NKF put out statements, it assumed a constant state of affairs, did it not?
A. Yes.
Q. The only change in the assumption that NKF was concerned about was donations going dry; right?
A. Yes.
Q. Not that the patients would stop paying; correct?
A. Um --
Q. Look at the articles.
A. Yes. We were also concerned about patients not paying in the future.
Q. Yes, but that was not stated?
A. Yes.
Q. So on the publicly-stated concerns about donations going dry and assuming that patients would continue to pay -- and I give you a discount if you want, I will add programmes if you want -- you have more than 10 years of reserves to save lives and to educate the public; correct?
A. Yes.
Q. You are still not prepared to put that right publicly. You are not prepared to go out and apologise and tell the public that they have been misled, are you?
A. No, I am saying that whatever moneys -- the way we look at it, whatever moneys are for the patients, for the public of Singapore.
Q. In fact, is it not true, sir, that contrary to your fear that patients may not pay, the amount that patients have been paying every year has been increasing. In the year 2000, out of an expenditure of $31.6 million, patients co-paid $20 million. In the year 2003, out of an expenditure of $31.6 million, patients co-paid $23 million. In other words, the amount of the co-payment is increasing as a proportion of your expense; correct?
A. Yes.
Q. If that trend continues, my 30 to 40-year projection will go to 50 years?
A. Yes.
Q. Thank you very much. Is it not also the case that the percentage of kidney patients which NKF treats has been declining as a percentage of total kidney patients in Singapore?
A. Of late, it has been increasing. It depends, different times, different years.
Q. Can I ask you to go to CB260. This is an extract from a document called "Questions for written answer", which set out ministers' answers to questions by backbenchers.
At page 260, NCMP Mr Steve Chia asked questions about kidney patients and the Minister for Health, Mr Khaw Boon Wan, gave the following information. He said:
"Between 1999 and 2003, the number of patients on kidney dialysis increased from 2,633 to 3,453.
The breakdown by service provider is as shown below ..."
Then if you look at the second column, "December 1999", against "NKF", it is "1,414" out of a total of "2,633"; do you see that?
A. Yes.
Q. That is about 54 per cent?
A. Yes.
Q. Four years later, your number is "1,512" out of an increased total of "3,453". The number is now 44 per cent. These figures are correct, are they not?
A. This does not take into account, I think, the PD patients.
Q. Sorry, say that again?
A. This does not take into account the PD patients.
Q. We are talking about this. If you look at the bottom of the page, it says:
"The main cost is for dialysis. There are three types of dialysis: haemodialysis, CAPD ..."
Which is, I think, what you are talking about?
A. Yes, yes.
Q. "... and APD ..."?
A. Yes.
Q. Do you see that?
A. Yes.
Q. Do you agree that these figures are correct?
A. Yes, at that point of time, yes.
Q. Therefore, you accept, do you not that, over the years, despite the numbers or dollars that you are raising, the percentage of kidney patients which NKF cares for has decreased?
A. No, not now. I mean, the numbers have gone up of late.
Q. I am talking about 1999 to November 2003.
A. Yes, the numbers went down.
Q. Went down; right? But as these numbers went down, your reserves and fundraising went up?
A. Yes.
Q. I want you to now go to --
COURT: Mr Singh, the court reporter has requested a short break. We will take a five-minute break.
(A short adjournment)
MR KHOO: Before my learned friend resumes, there is just one matter for clarification's sake. From the notes as recorded, if your Honour looks at CB260, my learned friend was reading from the dialysis number of patients as at December 1999 and as at November 2003, and I think the questions put to the witness was that for the NKF, as at December 1999, the figures were 1,414, and as at November 2003, it was 1,512. There was a drop in the percentage of total number of patients in Singapore on dialysis. That is not disagreed with.
But the question as recorded by my learned friend, which is recorded at line 12:
"Therefore, you accept, do you not that, over the years, despite the numbers or dollars that you are raising, the percentage of kidney patients which NKF cares for has decreased?
Answer: No, not now. I mean, the numbers have gone up of late.
Question: I am talking about 1999 to November 2003.
Answer: Yes, the numbers went down.
Question: Went down; right? But as these numbers went down, your reserves and fundraising went up?"
And the answer was yes.
Actually it should be percentage; the numbers went up, but it was a decrease in the percentage from 54 per cent to 44 per cent of the total.
MR SINGH: That is what I said at line 14, the percentage has decreased.
MR KHOO: But the last question to the witness: "But as these numbers went down, your reserves and fundraising went up?"
MR SINGH: I think it was obvious that it was a reference to the percentage. In fact I said 54 and 44.
MR KHOO: No, but that question itself. I think it should be corrected, your Honour.
MR SINGH: There is nothing to correct. I stand by what I said. It is the percentage that went down. When I referred to the number, the number is the percentage which is 54 to 44. And the witness agreed.
MR KHOO: In that sense, it is the percentage and not the number of patients. That is all I want to clarify. That is what Mr Singh meant, for the record.
MR SINGH: Yes. I will now come to the number of patients. Mr Durai, would you agree with me that NKF has been less than careful, to be generous, about the way it has put out its numbers, i.e. the number of patients that NKF treats?
A. What do you mean by that?
Q. I mean that over time and in different responses from different representatives from NKF, different numbers of patients are stated?
A. Yes, there are a few errors, I concede.
Q. They are errors, all right, good. Would you agree with me that these errors were not corrected?
A. Yes, they were not corrected.
Q. So in addition to the travel and the reserves, we now know that even the number of patients that were being put out as being treated by NKF was erroneous and remains uncorrected; right?
A. Yes.
Q. You do know that there is a significance to the number of patients that you represent to the world NKF treats. You do know there is a significance, right?
A. Yes.
Q. What is the significance?
A. We treat a sizeable number of dialysis patients.
Q. Yes, what is the significance? Let me make it easier for you. The higher the number you put out, the greater the impression that is created that you are more in need of funds?
A. Yes, in a way, yes.
Q. Therefore, if that is incorrect, there is a responsibility on the part of NKF and you to make sure that that error is corrected because that error misleads?
A. We write to the public on the --
Q. "Yes" or "no"?
My question is: there is a greater responsibility on you to correct the error because it misleads?
A. In a way it misleads, yes.
Q. So there is a responsibility to correct it; right?
A. Yes.
Q. Did you discharge that responsibility?
A. I think in --
Q. "Yes" or "no", please. Did you discharge that --
A. No, we did not do an immediate correction, but in our annual reports and all the reports, we have stated that our comprehensive programme, what we do.
Q. Mr Durai, have you corrected these wrong impressions? That is my question. "Yes" or "no"? I do not think I have got an answer the last one.
A. Not immediately.
Q. So you are saying you did, but later?
A. Later.
Q. You did.
A. We did not correct -- let me explain. We did not correct the error just like that, in subsequent comments, we have tried to put the actual number of patients correctly.
Q. We will see whether that was in fact done, but can I just establish that you were aware that these incorrect numbers were being put out?
A. I am only -- I was aware of late.
Q. Sorry?
A. Of late.
Q. Only of late?
A. Yes.
Q. You did not see the letters that went out from NKF which had the number of patients in it?
A. I am afraid I did not see some of those letters. The letter written --
Q. If by definition, if you did not see some, you must have seen the others; right?
A. Yes.
Q. In relation to the others, did you see errors?
A. No, some of them I did not see errors.
Q. Again, logically, for some you saw; right?
A. No, I did not see those errors --
Q. At all?
A. No, the letters --
Q. Answer my question. Did you see any communication from NKF containing an error on patient numbers?
A. After the event, yes. On Gerard Chuah.
Q. In other words, after the letter was published, you read it and you saw the error?
A. Yes.
Q. That letter was published I think on 9th April 2004. You read it on 9th April in The Straits Times?
A. Yes.
Q. You knew it was an error?
A. Yes.
Q. Did you correct it?
A. No, I did not correct.
Q. You accept it was your responsibility to correct it?
A. Yes.
Q. Why did you not?
A. I thought it was not something which is so material at that point of time, because I went on the basis the public supported us on the basis of our comprehensive programme.
Q. Would it be material to the public to know that you only have one patient?
A. Yes.
Q. It would?
A. Yes.
Q. Would it be material for them to know that you only have 10?
A. Yes.
Q. Why?
A. I mean, it is relative, what is material to the public.
Q. Yes, why? Tell me, why is it material for them to know that you only have 10?
A. For the purposes of making a donation.
Q. So they will think that, all right, NKF does not really need money, it only has 10 people; right?
A. Yes.
Q. By the same token, it will be material to overstate the numbers; right?
A. We cannot deliberately overstate.
Q. I did not ask you that. I asked you whether it was material?
A. Yes, it was.
Q. And it would be material because then the public would think NKF needs money; right?
A. Yes.
Q. Therefore, there is a tremendous responsibility on the part of NKF and you to be precise because everything that you say is designed to and has an effect on the decision-making process of the donor; right?
A. Yes.
Q. If your object is to go out and get as much funds as possible, then clearly it is in your interests to demonstrate a great need for those funds; right?
A. Yes.
Q. To demonstrate a great need of those funds, you would want to play up certain facts or certain figures; right?
A. Not play up, state those figures.
Q. State those figures. One of those figures that is relevant is the patient numbers?
A. One of those, yes.
Q. So you knew all along, and you continued to know that patient numbers has an impact on the donor?
A. One of the considerations, yes.
Q. Why, then, if you know that, and if you know that it was misleading or inaccurate, and you know that you have a responsibility to set it right, why did you not do that? Why did you not set it right?
A. Being in fundraising for a long time, we are of the view -- I am of the view that people gives money for the credibility of the organisation, for the number of programmes we run and this is just one of the considerations, which is not so material at that point of time.
Q. We have passed that point.
A. That is the way I view it.
Q. We have passed that point because you have accepted that it is one of the factors that the donor will have regard to?
A. Yes.
Q. So stick with that. My question is, having regard to what I have put to you and your agreement with me that it is material, and plays a role as far as the donor is concerned in deciding whether to give, why did you not correct the error?
A. I did not think it was of that major importance at that point of time to correct the error.
Q. You see, I will tell you what the difference is. Gerard Chuah said the number was 3,000?
A. Yes.
Q. That was an overstatement; right?
A. Yes.
Q. By almost 1,000?
A. Yes.
Q. What does 1,000 amount to in dollar terms? Then we can decide for ourselves whether it is material or not. What does 1,000 amount to in dollar terms?
A. What do you mean, please?
Q. Since you do not want to answer, let me help you. According to your public statements, you say you spent $2,600 per patient?
A. Yes.
Q. Per month; right?
A. Yes.
Q. 12 months per year?
A. Yes.
Q. 1,000 patients for 12 months a year. So 2,600 times 1,000 times 12 months equals to $31.2 million; do you agree with the maths?
A. Yes.
Q. By overstating that number by 1,000, you have given the public the impression that you are in need of $30-over-million when that is not true?
A. In a way, yes.
Q. In a way. You see, one is either pregnant or one is not -- A. No, it was an error.
Q. Is it false or is it true?
A. It is not correct, yes.
Q. Another false statement; right?
A. It was not done intentionally.
Q. We will come to intention in a moment. Would you please accept for expediency if nothing else that it is a false statement. An overstatement of 1,000 patients resulting in the impression of a need of 31 more million is a false statement.
A. It is not done deliberately.
Q. Can I take it that you accept it is false, but it was not done deliberately?
A. Yes.
Q. Thank you.
A. It is not correct.
Q. Let us talk about deliberately. Why else would it be done if it was not deliberate?
A. This letter was sent by Dr Gerard Chuah himself. I had no -- he did not check with me.
Q. To be fair to you, you read the letter, you did not correct it?
A. Yes.
Q. Why else would you not correct it, if not deliberately?
A. I just felt it was not that important at that point of time.
Q. You accepted it is important a few minutes ago; right?
A. As I was saying, it is one of the considerations a donor takes into account. That is the way I felt at that point of time.
Q. You see, Mr Durai, you have to answer this question. It is difficult for you to escape the fact that it is a material fact because we have translated it into dollar terms of $30-over million. This $30-over million difference could not have occurred to you only today. It would have occurred to you even then because you know the numbers. You have accepted it is material. My question is: if it was not deliberate, what was it, your decision not to correct the error?
A. It was an oversight. I did not think it was material at that point of time, so I did not act on it. I had no intention to deceive.
Q. How could that be an oversight? Explain for the benefit of his Honour -- A. Because I was saying that, insofar as I am concerned, the donor gives us moneys for a number of reasons and they give us money because the brand of the NKF -- and I did not think it was so important at that point of time to correct this error. That is the way I felt.
Q. If it was for the brand of the NKF, why bother to state patient numbers? The brand would do the selling. Right? Obviously the patient numbers add a gloss, are a selling point?
A. One of the selling points.
Q. How could it be an oversight?
A. I had no intention otherwise. That is the truth.
Q. You read the article. You knew it was not correct. You knew it would result in a $31 million difference. It is a misrepresentation. You do nothing to correct it. How is that an oversight? I still have difficulty understanding that.
A. I did not do anything with deliberateness. I did not act on it. I concede I did not act on it, but no intention to deceive. I mean --
Q. You knew it was not correct?
A. Yes.
Q. You knew it had an effect -- yes?
A. I did not think it would have such an effect.
Q. It does not matter whether it is such an or not, but you knew it would have an effect?
A. In a way, yes.
Q. You knew that if uncorrected, that effect will continue?
A. Yes.
Q. You knew that if uncorrected, the public would think that figure is true?
A. Yes.
Q. You knew that you had a responsibility to correct it?
A. I should have corrected it, yes.
Q. My question is: you knew you had the responsibility to correct it?
A. Yes.
Q. You did not?
A. Yes.
Q. How is that an oversight?
A. I must honestly say that I did not act on it. It is a mistake. But I did not do it with any intention to deceive anything. It is a mistake. I concede that it is a mistake.
Q. I suggest to you that this is another example of a deliberate strategy crafted by you and the NKF to mislead the public in the hope of attracting more and more funds.
A. That is not so.
Q. And this is merely an illustration of what the NKF has been doing all along?
A. It is not true.
Q. Do you not accept that it amounts to mismanagement?
A. No.
Q. To abdicate your responsibility to correct a false impression?
A. No. We --
Q. Answer my question.
A. No.
Q. Do you or do you not agree that it is mismanagement to abdicate your responsibility to correct a false impression?
A. No. I did not think it was a false impression. We did not deliberately create a false impression.
Q. Did you or do you not think that it is mismanagement to abdicate your responsibility to correct an incorrect number?
A. I do not think it is mismanagement. We were concentrating on running the dialysis programme.
Q. I am sorry, Mr Durai, I have to press you on this. If you have a responsibility to correct erroneous numbers which have an effect on people, if you know that it is erroneous, you are aware of your responsibility, you do not correct it, is that not an illustration of wrongful management?
A. No, it is a mistake. I do not think it is wrongful management --
Q. Let me put it another way. If an organisation is properly managed, that error would have been corrected?
A. No, I think every one of us makes mistakes.
Q. "Yes" or "no"? If an organisation is properly managed, that error would have been corrected?
A. If it is an excellent organisation of top form, maybe, but every organisation makes mistakes and we made a mistake.
Q. If it was an organisation which is properly managed, the report on the first-class travel would have been corrected?
A. No.
Q. No? If an organisation which is properly managed, the report on the reserves and the number of years for which it is available would have been corrected?
A. It is not true.
Q. Not true? A. We are not saying we are the best organisation in the world --
Q. Are you saying that the failure to correct these matters and the decision to keep the public in the dark is consistent with good management?
A. We did not deliberately --
Q. "Yes" or "no"? I am not asking you about deliberate oversight or intention. Is it your evidence that the failure to correct these matters and to keep the public in the dark on these matters is consistent with good management?
A. No.
Q. It is not. It therefore follows that it is consistent with poor management?
A. No, it is not. I mean, it is not done --
Q. Where is the grey area between good and poor?
A. The organisation has been created for the purposes of saving lives. We discharge a responsibility for which the public gave us moneys -- to the best of our abilities to establish the world's best dialysis programme, to fulfil the responsibility of the donor in achieving the objectives for which the moneys were donated. Whatever money is given are in the coffers of NKF for the patients. So we have to be judged on the programmes we have initiated for the beneficiaries to benefit. We make
mistakes along the process, here and there, but the major objective was to save lives and we did save lives.
Q. I just want you to go back to the earlier point that I made to you and your answer was that you agreed with me that it is not consistent with good management. Do you remember that? Failure to correct these things which might mislead the public is not consistent with good management?
A. Yes, but I said if it is done with deliberateness.
Q. Yes. Sorry?
A. We did not do anything deliberately.
Q. You did not do anything deliberately. So when the statement was put out, 3,000, which is an inflation of 1,000, when reserves are put out at three years, which is a deflation of 90 per cent, when business class is represented as being the class that you travel which is false, that is all not deliberate. They were all oversight, as were the failure to correct them. Is that your honest answer?
A. As I explained to the court, I did not do it with deliberate intentions.
Q. All of that was done with an oversight. Why is it that all these mistakes are not on the other side of the line? For example, patient numbers are never under-represented, reserve available years are never over-represented? Why? Why is it that they fall always on the other side of the line when it becomes false and people act on it? If it is only an oversight, how is it that time and time and time again, the mistake falls on the other side of the line, which is beneficial to you, but against the interests of the donors? Explain that if it is all an oversight.
A. I do not get you. Can you explain that.
Q. Number of patients?
A. Yes.
Q. Have you ever understated the number?
A. I cannot recall that.
Q. The answer is no; right?
A. Yes.
Q. Right. Business class fare, have you ever said it is not business, I travel first? Have you?
A. No, I said I travel within my entitlement.
Q. Right. Reserves, number of years; right? Have you said it is available for much more than three years?
A. We took the most pessimistic outlook and that is how we came up with that conclusion.
Q. How is all of this consistent with oversight when it just seems to me that is all designed to create an impression that you need more money? It is a wonderful
oversight, it has worked extraordinarily for your benefit, but explain to us how this all came together as one huge monumental oversight?
A. Whatever we did was to grow the programmes. We did it not with deliberateness to deceive anyone at all. We made mistakes along the way.
Q. We move on now. In your affidavit of evidence, you talked about the toilet fittings?
A. Yes.
Q. You gave evidence that you were concerned what people might think about those fittings?
A. Yes.
Q. Why was there that concern?
A. We are dealing with the public and I did not want to in any way convey that I was misusing it in any way possible.
Q. So you felt that it was important, in fact, integral to your duties and to NKF's responsibility, to ensure that every dollar or the use of every dollar is maximised?
A. I tried.
Q. No, you felt that was important?
A. Yes.
Q. Right? Not only did you think that it was important not to splurge, but also not to give the impression of splurging?
A. Yes.
Q. In other words, if you had bought an inexpensive $50 -- let us assume it is inexpensive by everybody's standards -- item, but it looked expensive, you would remove it?
A. Yes.
Q. Right? Because the public must know that every dollar is properly accounted for and well spent?
A. Yes.
Q. Is that not right? If it is expensive but does not look expensive, what would you do?
A. If I came to know it was expensive, I would still not have it.
Q. By whose standards would you judge whether it is expensive or not?
A. My standards as I look at it, the average man.
Q. I assure you, you are no average man --
A. No, but -- (unclear -- simultaneous speakers).
Q. Can I just ask you to answer this question.
A. The standards of the average man.
Q. Right. Who is that? A person earning how much?
A. $3,000 to $4,000.
Q. In everything that you do, in relation to expenses, you will put yourself in that man's shoes; right?
A. Yes.
Q. This is a man who earns $3,000 to $4,000, and has a family; right? Has expenses for the household and expenses for the children and likely no savings; correct?
A. Possibly.
Q. Yes. Would it be right to say that if this court were to find that the installations were installations which that man could not spend on, then the article is entirely justified?
A. No.
Q. No?
A. No.
Q. Why?
A. Because the article talks of a gold-plated tap which is vastly extravagant, beyond the imagination of the ordinary man.
Q. We will come to this in a moment. If the article had said, instead of gold-plated taps, that the taps cost $2,000, would that have made a difference?
A. In the context of how it was explained.
Q. Answer my question.
A. No.
Q. If there was no reference in the article to gold-plated, but a reference to $2,000, would that have made a difference to your view of the article?
A. No. If it says it is plain that the NKF bought a $2,000 tap for a building, whatever it is, possibly it would not have made much of a difference.
Q. It would not have? Sorry?
A. It would not have made much of a difference, depending on the context in which it is being used.
Q. Therefore you are saying that if the article had said that the NKF bought a $2,000 tap for the CEO's bathroom, that would have been okay -- yes?
A. Yes.
Q. How does that sit with your earlier answer that you look at it from the viewpoint of the man who earns $3,000 to $4,000 with no savings? A. Depends on the functionality of the tap. If it is going
to be a building of durability or whatever it is, you have to go according to what the required standards are.
Q. Can you name me more than one function of a tap.
A. No, this --
Q. You said it depends on the functionality of the tap?
A. No, it depends on the building and how it is being done. We are an international organisation, global organisation, and it depends on the requirements of that particular context.
Q. Therefore, if the article had said $5,000, that too would have been okay because you are an international global organisation?
A. No, $5,000 is a bit too extravagant.
Q. Where do you draw the line?
A. No, I will look at the context of it and decide on the particular figure.
Q. Tell me, what is that figure, given that you have told me that you would look at it from the viewpoint of someone earning $3,000 to $4,000 with no savings, tell me --
A. When you --
Q. Where would you draw that line?
A. When you are running an organisation, you have to make a decision in the interests of the organisation for the purpose of what it is being to achieve. For example, you have --
COURT: The question is a simple one. Where would you draw that line?
A. I would draw the line in the context of the purpose for which it is being used and the environment in which it is being used.
MR SINGH: Give us a number, please, because you told us what the perspective is, the man who earned $3,000 to $4,000.
A. Yes.
Q. I asked you whether $2,000 was okay, you said fine. I asked you $5,000, you said no. So where is the line?
A. $2,000 for a toilet fitting --
Q. A tap.
A. No. A tap -- for a particular tap alone, I think it is too expensive.
Q. It is?
A. It is for a tap alone. You are talking of a tap alone.
Q. Yes, too expensive?
A. $2,000, I would consider, yes. But if it is for a toilet fitting, it is different.
Q. What about $1,000? Bear in mind this man in his HDB flat, no savings, you go and ask him, will you pay $1,000 for this tap? Okay. Is $1,000 expensive from that perspective?
A. I do not think so. It depends on the context in which the building -- for the purposes of the building. I do not think so.
Q. $2,000 is expensive, $1,000 is not expensive?
A. Yes, I would think so. It is quite reasonable.
Q. So the line would be $1,500, where you will cross between not expensive and expensive in his mind?
A. Yes, I would think -- in the context of the purpose for which it is being used, that is how my judgment will be.
Q. But you see, you are using the context against us. Now you are using it for you. You are saying that the context was this $21 million building, international global organisation, if that is the case, on your own case, it is perfectly all right to install an expensive tap.
A. No, I am saying, even if for -- I do not get your question, actually.
Q. You got my question. The problem is you now understand the flaw of your whole case.
A. No, I do not understand --
Q. You have just told us that if it is a $21 million building, international organisation, people will understand why you need to have expensive installations.
A. No, it is not expensive --
Q. Now -- wait a minute. Now you say the article is about how these taps are expensive.
A. No, the article --
Q. On your own case, Mr Durai, there is nothing defamatory because people will understand why you needed to have such extravagant fittings.
A. No, the allegation, your Honour, is about the fact that I wanted to fix a gold-plated tap in my toilet, and I was shamed into it by a contractor who screamed at me. I did not want to fix the gold -- I never gave any instructions to fix a gold-plated tap.
Q. Let us forget your instructions for the time being. Let us forget you being shamed for the time being. I am only talking about the value of the tap being installed.
A. Yes.
Q. And you yourself have said the ordinary man will understand that for a global organisation like the NKF, in this wonderful building, having regard to the functionalities of taps, he would perfectly understand why you would need an extravagant fitting; correct?
A. Beg your pardon?
Q. He would --
A. I do not get --
Q. He would perfectly understand why you would need an extravagant fitting.
A. Not extravagant fitting. I am saying -- something reasonable.
Q. So he would accept that you needed something at $1,000?
A. Yes, he would.
Q. He would; right?
A. Yes.
Q. If he would, then to say that it is $1,000 is not defamatory; right?
A. In the way it is presented, it is not defamatory.
Q. Thank you very much. That is what the article said, that the tap cost $1,000?
A. No, the article says it is a gold-plated tap costing at least $1,000, and gives an impression which -- it gives the impression it is far more expensive than $1,000. It is a gold-plated tap.
Q. Mr Durai, you see the difficulty in your case now. The man in the street is only going to be affected by the price. It could be gold plated, it could be wooden, it could be platinum, but it is said to be $1,000 -- listen to me. And you yourself have said that if it is $1,000, it is not defamatory because people will accept it. Is that not right?
A. No.
Q. Have you not completely undermined your own case?
A. No. The allegation was I wanted a gold-plated tap to be fixed, which is at least $1,000. A gold-plated tap costs more than $1,000-over -- I screamed, I shouted.
Q. Let us just --
A. It is --
Q. Let us just keep aside your screaming and shouting because we will come to that and we will see whether you actually did do those things. But I suggest to you, sir, that if the public is told that a tap of $1,000 had been installed, it is your case that there would be nothing wrong with it and people will think none the less of you; agreed? "Yes" or "no"?
A. In the way it is reported, they may think badly, they may not think badly about it.
Q. No, answer my question, please.
A. Yes.
Q. Do you or do you not agree with me that if it is reported that a tap costing $1,000 was installed, your position is that is perfectly all right because the public will understand and not think that there was anything wrong?
A. Yes.
Q. Yes?
A. Yes.
Q. Thank you very much. In fact, going by your own case, the public will not think that there was anything wrong if it is stated that you had a glass-panelled shower or a pricey German toilet bowl because they will understand that this is a global organisation operating out of this wonderful building and you need these things; correct?
A. You are talking of the 21 storey building or?
Q. No, you are talking about the public who knows that you operate out of this $21 million building. They will understand that you need these items?
A. These items were not fixed there.
Q. No, never mind. But you need these items; correct? Therefore, any --
A. Not pricey German toilet bowl.
Q. But shower panel?
A. No, I mean the way it is reported is what is important.
Q. Let us take it one step at a time.
A. Yes.
Q. We have already passed the tap at $1,000, and you said that is perfectly acceptable and it is not defamatory. Glass-panelled shower. That must follow; right?
A. Yes.
Q. The public will say, yes, we understand he needs it; correct?
A. Yes.
Q. Similarly, a pricey German toilet bowl; right?
A. No. Pricey German toilet bowl gives the impression of extravagance.
Q. I see, right. In other words, extravagance beyond what point? How much?
A. A usual toilet bowl which is reasonable.
Q. How much is that?
A. About $1,000, $1,100.
Q. That is reasonable?
A. Yes.
Q. $1,100 for a toilet bowl?
A. In the context of the environment in which we operate.
Q. For a $3,000, $4,000 salaried man?
A. No, I mean it is the nature of the business. You cannot function otherwise.
Q. Therefore, if the article had said that the toilet bowl cost $1,000, that would have been okay?
A. Yes.
Q. Right? And if the article also said that the glass-panelled shower had cost a few thousand, that would have been okay?
A. No.
Q. How much then?
A. The glass-panelled shower was just one sheet of glass.
Q. The article says that in your office, there was installed on the 12th floor of the $21 million building, "among other things, a glass-panelled shower, a pricey German toilet bowl and a gold-plated tap.
'I started screaming my head off. The gold-plated tap alone cost at least $1,000." v And you took offence with that; correct?
A. Yes. Because --
Q. Why would you take offence to this statement that it would cost at least $1,000 when today you are telling us that you would not have taken offence if the article had said $2,000?
A. Because --
Q. For the toilet bowl and the tap?
A. No, the way it is reported, everything depends on the way it is reported in the papers. I mean, the way it was reported was that I wanted -- that I wanted to fix a gold-plated tap. It is different. People's conjuration of gold is phenomenal. A gold-plated tap gives the impression of a solid gold-plated tap. It never happened. It never happened in the 12-storey building.
Q. We will come to that in a moment, and it is interesting you say it never happened in the 12-storey building. Would you agree with me that if the article had said that it cost $2,000 to install the toilet bowl and the tap, you would not have taken offence?
A. No, $2,000 would be something very high. It is relative.
Q. It cannot be because you earlier said $1,000 for the bowl and $1,000 for the tap is okay?
A. It is okay, $1,000.
Q. So if the article had said it cost $2,000 for the bowl and the tap, that would not be offensive, it would be understood, it would not be defamatory?
A. Yes.
Q. Right?
A. Yes.
Q. But you are suing, although the number here is less than $2,000, it is only $1,000. Why, Mr Durai?
A. No, because the way the report has come. This is a man who says I wanted to fix a gold-plated tap and I was screaming -- he was screaming his head off. I did not want to fix a gold-plated tap. It is different, the way it is reported, defamatory, in my view.
MR SINGH: Your Honour, would this be a convenient time.
COURT: Yes.
(The luncheon adjournment)
MR SINGH: Have you managed to get hold of the letters of appointment that you said you would produce after lunch?
A. There is one letter here, I think.
Q. The letter that you have given discovery of is dated 28th January 1992 when you were a part time employee?
A. Yes.
Q. That is not what I am concerned with. I am concerned with your appointment as a full-time employee?
MR KHOO: We have not got a copy of that letter yet, your Honour.
MR SINGH: Can arrangements be made by your organisation to retrieve it this afternoon, because I would like to deal with that letter while Mr Durai is on the stand. While we wait for it, can you go to the article at 2DB, pages 335 and 336.
A. Yes.
Q. Just to set the scene, we know that you are suing on the headline 'The stand first', which is that sub-headline, as well as the first six paragraphs of that article?
A. Yes.
Q. You are not suing in relation to the rest of the article which yesterday you said was true, insofar as it was factual, and fair, insofar as it was comment?
A. Yes.
Q. I would like you to look with me at a number of paragraphs in that article. Would you agree with me that there are other parts of this article which talk about the manner in which the NKF spends its money? For example, if you go to page 336, you will see a photograph of Dr Gerard Chuah.
A. Yes.
Q. Underneath is the caption: 'Just because we're a charity doesn't mean we have to operate in a hovel out in the rain.'
A. Yes.
Q. That is a reproduction of what is reported at paragraphs we have numbered 36?
A. Yes.
Q. It reads:
'The taboo it seeks to break is that charity is synonymous with poor quality. As Dr Gerard Chuah, an eye surgeon and chairman of the NKF Children's Medical Fund says: 'What bothers me is when people say, why can't you continue to function out of containers? Hello, just because we're a charity doesn't mean we have to operate in a hovel out in the rain.'
The suggestion to the reader there would be that we take a different approach to the way we operate; is that not right?
A. Yes.
Q. And that we consider it entirely appropriate for a charity like NKF to operate out of a spanking new expensive building with the latest in infrastructure, facilities, gadgets, et cetera; right?
A. I do not think you can say we have the latest infrastructure, facilities and gadgets.
Q. Sorry?
A. I do not think we can say that we have the latestinfrastructure --
Q. All right, modern facilities?
A. Modern.
Q. Right? So the use of the word 'hovel' there was really a very pointed way of saying that the NKF operates out of spanking new premises, a building of its own with modern up-to-date facilities, gadgets, et cetera; correct?
A. No, a modern facility --
Q. Yes.
A. I will not consider the building spanking.
Q. Right. It is quite clear anyone reading that article would know that it is a $21 million building?
A. That is so.
Q. It is your case also that there is no suggestion in this article that the $21 million came from five donors; correct?
A. Yes.
Q. Therefore, on your own case, anyone reading this would conclude, looking at the first few paragraphs and the word 'hovel' that you have used donations from the public amounting to $21 million to build that building?
A. Yes.
Q. Correct? Why were you not upset with that? Why did you not sue for that? We are not talking about a $1,000 tap. We are not talking about a $1,000 toilet bowl. You complain that there is nothing in this article which says that the $21 million came from five donors. Why are you not suing for the suggestion in the article that NKF operates out of this huge new expensive building costing $21 million?
A. It is a question of choice and we did not want to sue on that.
Q. I would suggest to you that if the choice is between a few thousand dollars and $21 million, a reader would recoil more at the latter; is that not right?
A. I did not read the article --
Q. Answer my question. As between --
A. Yes.
Q. Yes? So here you have the reader, according to you, forming the impression that $21 million has been spent from public donations on a building for the NKF and there is no complaint. How does that sit with your complaint about a $1,000 tap?
A. My point is this particular incident did not occur, and I thought it was defamatory because such an incident never occurred.
Q. No, Mr Durai, you have alleged in your case here -- and if you want, I will refer you to it, but I hope we can save time.
A. Yes.
Q. That The Straits Times should have said that this building at $21 million was not from public funds, but donated by five people or organisations; correct?
A. Yes.
Q. Because they did not say it, it follows from what you have said that the implication is that public moneys have been used; right?
A. Yes.
Q. If that is the implication, it must mean that public moneys have been misused for this building, surely. $21 million; correct?
A. Yes.
Q. Why did you not sue?
A. I did not think of it in that particular way.
Q. You must have, surely.
A. No, that was my --
Q. You thought about it, you ruminated, you reconsidered, you had legal advice, you kept changing your meaning as time progressed --
A. No.
Q. How is it that this $21 million staring in your face is irrelevant?
A. No, I did not think about it.
Q. All right. You therefore accept, do you not, that the reference to the $21 million is fair; right?
A. Here?
Q. Yes.
A. Yes.
Q. Yes?
A. Yes.
Q. It is a reference which suggests that, according to you, public donations have been used for that $21 million; right?
A. Yes. Because they did not write it.
Q. Yes, that is right. Does that not fit in with the theme of the article which is controversial spending?
A. No, I do not think so.
Q. Mr Durai, look at the heading of the article?
A. Yes.
Q. It says, 'NKF controversially ahead of its time'?
A. Yes.
Q. Look at the stand first:
'Controversy stalks the National Kidney Foundation, with critics lambasting its fundraising methods, brazen self-promotion and work practices. Is the NKF just a cutting-edge charity ahead of its time, or is there more to those rumblings?'
According to you, a reader reading this would think that $21 million of public funds have gone into the building. You did not sue for that. So you must accept that that reference to the $21 million is really consistent with the theme of the article, which is it is controversial. You can take the view that you are fully entitled to do that and some people can take the view that it is extravagant. Agree?
A. Yes.
Q. If the reference to a $21 million expense is consistent with the theme of the article, surely, and on a stronger reasoning, the reference to the $1,000 tap is also consistent; yes?
A. No.
Q. No?
A. Because here it is a narration of an incident which never occurred.
Q. Right. Let us look at it from that standpoint. Let us assume you are right, that there were no gold taps and pricey toilet bowls; right?
A. Yes.
Q. According to you, that is a false impression; right?
A. Yes.
Q. $21 million building, there is no reference to the five donors?
A. Yes.
Q. The impression is that these are public funds; right?That is your case?
A. From the article it looks so, but there have been reports already in the papers that this building was donated by five donors.
Q. Yes, but you could have complained that SPH left that out --
A. Yes.
Q. Therefore the impression was created that that is public funds?
A. Yes.
Q. So you have two false impressions. One in relation to the installations or fittings, one in relation to this $21 million; right?
A. Yes.
Q. So we have settled that. Second, you have accepted that that false impression is about expenditure; correct?
A. Yes.
Q. So we have now on both columns the same things. Under the taps, false impression, expenditure. Under the $21 million building, false impression, expenditure. Correct?
A. Extravagant expenditure.
Q. Extravagant, thank you.
A. On the gold taps.
Q. Yes. The third thing: both are extravagant. That isthe false impression; right?
A. Yes.
Q. Correct? I need an answer on the record.
A. Yes.
Q. In column B you accept that that is consistent with controversy, the $21 million extravagant spending, false impression. You must accept that under column A, under taps, it is also controversial?
A. No --
Q. 'yes' or 'no'?
A. Yes, but --
Q. Thank you very much.
A. The point is -- can I explain, your Honour? I am just saying it is just not spending, it is a whole narration of what actually happened, which is not correct.
Q. Yes, I understand, but now we have established that like the impression and the theme of the $21 million, the impression and the theme about the taps is that it is controversial and that is consistent with the heading and overall theme of the article; correct?
A. Yes.
Q. Thank you very much. In fact, that is not the only aspect where there is a reference to controversial spending.
Going back to the article at page 335, you sued for the first six paragraphs, but you stopped just before the seventh and the seventh reads:
'In the past fortnight, the NKF has hogged the headlines ... The news of its amazing $189 million in reserves broke the very day it celebrated its 35th anniversary ... Since then, a stream of more than 130 people -- former employees, former donors and disgruntled members of the public -- have emailed or called this newspaper to let off steam about its hard sell tactics, thick carpets and controversial chieftain.'
You see the reference there to thick carpets?
A. Yes.
Q. What does the image of thick carpets conjure?
A. Usage of funds.
Q. Sorry?
A. Extravagant usage of funds.
Q. It suggests a luxury?
A. Yes.
Q. Right? Indeed, an unnecessary luxury; right?
A. Yes.
Q. Why have you not sued for that paragraph?
A. We did not want to sue on that.
Q. Why? Is it true?
A. It is not true.
Q. So why did you not sue?
A. We do not sue for everything that is not true.
Q. But here is an article which is tinged, according to you, with malice, which talks about pricey fittings, but also spices it up by reference to thick carpets and a $21 million building. Why did you only choose to sue on the one aspect?
A. The reason is I just felt this was the most grievous of the assault on the NKF, which is totally untrue.
Q. How can it be the most grievous? It is the cheapest. We all know that on a scale, a sliding scale, the greatest expense is on the building, $21 million. Then comes thick carpets, which on any view, are more expensive than taps, and then come taps. Why did you choose to sue only for that smallest expense, but ignore the other larger items?
A. It is not the expense, your Honour. It is the whole narration of what actually happened, which is totally untrue.
Q. Do you have thick carpets which are luxurious?
A. They are not.
Q. The question is do you have thick carpets which are luxurious?
A. No.
Q. So it is false?
A. Yes.
Q. Again we have the problem. Another false allegation involving extravagant expenditure, giving a false impression to the public, but you do not sue for it?
A. We do not sue for everything possible. You know, we -- many people say a lot of things. We cannot be suing everyone for everything.
Q. So you are happy for the public to know that there were no gold taps, but the NKF does spend on luxurious carpets?
A. It is not true, but we cannot be dampening everything people say about us. There is a time, there is a manner in doing it, otherwise the NKF, apart from its life-saving purpose, would be suing everyone possible for saying everything possible. We are an organisation which attracts a lot of attention. People say lots of things about you.
Q. So you are happy for the public to think: all right, the NKF is determined to show it did not spend at least $1,000 on a gold tap, but you are happy for them to continue to have the impression that it has unnecessarily extravagant and luxurious carpets, and has splurged $21 million of public funds into that building?
A. No, it is, as I keep saying again and again, my concern was this whole episode of this incident never occurred,was untrue. We decided to sue on this.
Q. But neither did the thick carpets occur?
A. We did not decide to act on that.
Q. Why?
A. Because we --
Q. It is the next paragraph.
A. But we have --
Q. Why did you draw a line between the sixth and the seventh paragraph? It could not have escaped your attention, certainly not the astute attention of your counsel. It is just the next paragraph. After talking about taps, we are talking about thick carpets.
A. You always have a choice of what action you intend to take. We felt this was the best possible action to take and that is why we made the decision.
Q. Is it not true, sir, that the reason you did not take the action is because there are thick carpets?
A. No, that is not true.
Q. How can you say it is not true when yesterday you told me and the court that to the extent that the rest of the article is factual, it is true? How can you change your evidence in a matter of less than 24 hours, sir?
A. It is a matter of opinion whether thick carpets are expensive or not. It is a question of you decide whether you want to or not.
Q. You told us yesterday that to the extent that it is factual, it is true. To the extent that it is comment, it is fair. How can you today say it is untrue?
A. No, a question of whether a carpet is thick or rich or expensive is a matter -- it is a matter of opinion.
Q. Mr Durai, you see, sir, if the article suggested extravagant spending, you have, on the basis of your decision not to sue for the carpets, accepted that there was extravagant spending?
A. I do not agree with that.
Q. Yesterday when you said that the rest of the article is true, you accepted that there was extravagant spending?
A. I am not saying that. I said the rest of the article is a question of fact, opinion. We just left it as it is. We cannot be suing for everything possible.
Q. Would it have made a difference if the article had said thick carpets costing $10,000?
A. Yes, if it is untrue, yes, it would have.
Q. It would still be a comment; right?
A. No, thick carpets costing $10,000 is not a matter of opinion because you know it is -- you can check and see it is not.
Q. Right. If it was $10,000, that would have been luxurious; right?
A. No, no. It is a question of how -- what sort of carpet,how much square feet, how those things are taken into --
Q. So you are saying that if you spend $10,000 on carpets for your office, it is not expensive?
A. No, it is not for my office --
Q. I am asking you, sir.
A. No, I am not saying that.
Q. Answer my question. Are you saying it is expensive or not?
A. If I spend? Beg your pardon? The question is?
Q. Are you or are you not saying that $10,000 for carpets is expensive?
A. For my office?
Q. Yes.
A. Yes, it is expensive.
Q. Thank you. Can you go to your affidavit of evidence. Leave this document open. I am coming back to it. Go to paragraph 3. Look at what you say the meaning of the article is. The last line of paragraph 3 says, the main paragraph:
'Any reasonable reader of the words would conclude that ...
(c) That the NKF had avoided providing details of comments on this alleged misuse of funds ...'
Do you see that?
A. Which page?
Q. Page 4 of your AEIC.
A. Yes.
Q. You see the reference there is to the taps; right?
A. Can you tell me which page?
Q. Can you go to page 4 of your affidavit of evidence.
A. Yes.
Q. Can you look at paragraph 3.
A. Yes.
Q. You set out the meaning of the words?
A. Yes.
Q. Look at paragraph 4.
A. Yes.
Q. The clear invitation is made to the reader to adopt the same stance as the alleged contractor who, faced with and outraged by such luxurious self-indulgence -- before I ask you the question, go to paragraph 7:
'When I read the words, it was clear that the offending paragraphs had conveyed a message to the readers that they should not donate to the NKF because funds that had been donated to the NKF ... had been misused on lavish fittings ...'
Do you see that?
A. Yes.
MR KHOO: Can you read the whole sentence.
MR SINGH: '... that only a multi-billionaire like Bill Gates could afford to install.' Do you see that?
A. Yes.
Q. Your concern, according to your affidavit, is that the reader might think that you were spending public funds on lavish items and for luxurious self-indulgence; right?
A. Of such magnitude.
Q. Yes. Right, of such magnitude, thank you. On any view, the magnitude of the $21 million and the carpets is larger than of the taps; do you agree?
A. No -- yes, but the context is different.
Q. Thank you. You see, again if we put it all in columns, A for taps, B for buildings, C for carpets, you have exactly the same elements, but you only choose one, which goes to show, I suggest to you -- A. No.
Q. -- that insofar as the carpets are concerned, you accept that thick carpets were installed?
A. That is not true.
Q. Did you at any time correct this article by a letter to dispute the thick carpets?
A. I did not.
Q. You did not. Thank you very much. Would you agree with me that the reference to the expense on thick carpets isagain consistent with the theme of the article which is controversy?
A. Yes.
Q. Then you go to paragraph 34. There is a reference to the staff strength of 947. Do you see that?
A. Paragraph?
Q. Let us start with paragraph 33, where it is said that you compete with the likes of General Electric and Morgan Stanley --
A. Paragraph please?
Q. Paragraph 33, page 336. Go back to the article in the defendants' bundle, the paragraph numbered 33. The second page of the article says: 'Chink in spiffy armour' --
A. Yes.
Q. Do you have that? It says that in your recruitment drives, you compete with General Electric and Morgan Stanley for the best brains money can buy?
A. Yes.
Q. Right? Again, it is a reference to the way in which NKF spends its money?
A. Yes.
Q. Right? Of course you will defend it as being necessary and some people might take the view that it is not necessary?
A. Yes.
Q. Right?
A. Yes.
Q. So this is the third example outside the six paragraphs of the expenditure of money by a public charity funded by donations which is consistent with the theme of the article which is controversy; right?
A. Yes.
Q. It is also consistent with the other theme of the article, transparency or the lack of it, because details are not available; right? Because you do not disclose salaries?
A. Yes.
Q. Then paragraph 44, the reference to first-class travel and business-class travel. Yes?
A. Yes.
Q. This is the fourth item outside the six paragraphs talking about the way you spend your money; right?
A. Yes.
Q. That again is consistent with the theme of the article which is controversy; right?
A. Yes.
Q. Indeed, it is also consistent with transparency because you will remember that Alwyn Lim in 1999 said that legal action in relation to air travel was started in theinterests of transparency; do you remember that?
A. Yes.
Q. Putting aside for the moment the first-class airfare, is it true that senior executives, in the plural, of NKF fly business class? Is it true that senior executives, in the plural, fly business class?
A. Senior executives, directors fly business class. Directors upwards.
Q. They do?
A. Sometimes, yes.
Q. If that is correct, could you please explain this to the court. You were asked certain questions by way of interrogatories?
A. Yes.
Q. And you gave those answers on 31st March 2005?
A. Yes.
Q. Your Honour, can I give your Honour a copy of the bundle of answers to interrogatories. It is not in the setting down bundle.
A. Can I just make a correction.
Q. Yes, sure.
A. As of that date, the interrogatories, there was nobody who was flying on this. In the past, they did.
Q. When did the policy change?
A. There was a policy and the policy was there, but therewere no senior directors at that point -- directors at that point of time.
Q. Whenever there were directors, they were entitled to business-class travel?
A. Directors, yes.
Q. Thank you.
A. Of director level.
Q. Yes, of course. Look at page 24 of tab 2.
A. Yes.
Q. According to page 24, question 28. There were already directors since 2002; right?
A. Yes.
Q. There were three in 2002, two in 2003 and six in 2004; right?
A. Yes.
Q. Then at page 25, question 33:
'To the 33rd interrogatory, namely, for the period 2002 to 2003, have senior executives of the 1st plaintiff other than the 2nd plaintiff flown business class while carrying out official duties on behalf of the 1st plaintiff?'
Then the answer:
'No, senior executives of the 1st plaintiff other than the 2nd plaintiff have not flown business class while carrying out official duties on behalf of the1st plaintiff during the period 2002 to 2003.'
Which is true?
A. No, my point --
Q. One second. Which is true? The answer that you gave on oath here on what you told Susan Long for the report -- 'you' meaning NKF.
A. The answer is senior executives -- by senior executives meant people from director level.
Q. Yes, of course.
A. Yes. In the NKF, we have executives, senior executives and directors. We were talking of director level. For example, Karen Edwards was an associate director. Jenny Tan was an associate director. These were directors upwards.
Q. If you insist on playing with language, I am afraid I will have to quote back the article to you. Go to page 336, paragraph 44. It reads:
'For the record, Mr Yong says, there is no such thing as 'first-class travel'.'
Listen carefully:
'Senior executives, from directors up ...'
In other words, directors are within the category of senior executives; correct?
A. I am afraid Mr Yong got it wrong. I must honestly say that, your Honour. Mr Yong got it wrong. Because hewas -- he must have got it wrong. The NKF's policy was only directors upwards travel business class.
Q. We will come to whether Mr Yong got it right or wrong, for the third or fourth time. Do you not agree with me that in this paragraph, directors are also called senior executives?
A. But in the --
Q. 'Yes' or 'no'?
A. Not in the NKF.
Q. No, in this paragraph?
A. In the paragraph it means that.
Q. And in this paragraph, it says that senior executives also fly business class, right, the directors upwards, right?
A. Senior executives from directors upwards. It means --
Q. So there is a certain class of senior executives who fly business class; right?
A. Directors upwards.
Q. Yes. But that is inconsistent with your answer, on oath, where you said no other senior executive flies.
A. What I meant was actually a person of director level.
Q. You are not talking about board level, right? You are talking about job description.
A. Job description, director level, associate directors.
Q. Yes. You are higher than them; right?
A. Yes.
Q. Right? So you have called yourself a senior executive; right?
A. No. The nomenclature we use in the NKF is director and CEO, associate director also.
Q. Look at your answer in interrogatories, this thin bundle, page 25, tab 2. You say:
'No, senior executives of NKF the other than the 2nd plaintiff have not flown business class ...'
So you have, in your own answer, described yourself as a senior executive; correct?
A. Yes.
Q. 'Yes' or 'no'?
A. Yes.
Q. The NKF has publicly in this article also identified directors as senior executives; right?
A. In this article, Richard Yong has mentioned, yes. Q
. So now we have two contradictory positions. In the article, it is stated that other senior executives fly business class, in your answer on oath you say no one else does. Which --
A. No --
Q. One second. Which is false?
A. No, the factual position is people above the level of directors travel business class.
Q. Which is false, sir? It is your interrogatory, is it not?
A. Yes, I think I have not written it correctly.
Q. On oath you have given a false answer?
A. No, I do not think it is a false answer. I meant it this way. I made a mistake.
Q. Another oversight?
A. I meant it --
MR KHOO: Your Honour, without wanting to interrupt my learned friend again, I think he must ask the witness, because in the answer to interrogatory, a specific period was mentioned. Between 2002 to 2003. We do not know what period Mr Yong was referring to when he gave this interview.
MR SINGH: That is why I very fairly took the witness to an earlier page of the answer where he said that in the year 2002 to 2003, there were directors, page 24, and it has been established that directors have been described as senior executives. And it has also been established that one said they do not fly business class, while another said something totally different.
Anyway Mr Durai has now confirmed that his answer on oath was wrong.
A. It is wrong. I made a mistake in this.
Q. You did not make a mistake because you were seeking tomislead us --
A. No.
Q. -- and the court into thinking that you could get away by showing that only you travelled business class and that the NKF did not pay for others?
A. No. That is not so.
Q. It was not an oversight. It could never have been an oversight. It was yet another attempt to mislead?
A. No. I am afraid not.
Q. You can confirm, can you not, that we had to apply to court to get you to answer that question?
A. Yes.
Q. Thereby incurring costs and now we are told that the answer that we incurred costs to get is a false answer?
A. It is not correct.
Q. Is it another coincidence that this mistake of yours is yet another one in your favour?
A. No.
Q. On that side of the line that I described before the lunch adjournment?
A. No.
Q. Coming back to the article, the expenditure of business class for senior executives is also consistent with the theme of controversy and transparency; right?
A. Yes.
Q. You therefore accept, do you not, that where the article talks about the way NKF has spent its money -- listen carefully -- whether true or not, that is consistent with the theme of the article of controversy and transparency?
A. Can I have your question again?
Q. That where the article talks about the way NKF has spent its money, whether true or not, that is consistent with the theme of the article of controversy and transparency?
A. Yes.
Q. And you also accept, do you not, that the first six paragraphs talk about the way the NKF has spent its money?
A. By making defamatory allegation.
Q. Yes, whether true or not, the first six paragraphs talks about the way the NKF had spent its money; right?
A. Yes.
Q. Therefore, the entire article, including the first six paragraphs, is consistent with the theme of the article which is controversy and transparency; correct?
A. Yes.
Q. Yesterday you agreed with me that the issue of controversy and transparency is a matter of comment?
A. Yes.
Q. You also agreed with me that SPH and Ms Long had a duty to communicate these issues to the public which had a corresponding interest in reading it?
A. I would like to correct that. I think it is a prerogative rather than a duty.
Q. It is a prerogative?
A. Yes.
Q. But yesterday you said duty and I would like to stick with your evidence, sir.
A. Okay.
Q. Did you not yesterday say -- A. I said so.
Q. Thank you very much. In fact, if you go back to the article at page 335, those themes that I have described are very neatly encapsulated in the headline and the stand first; do you agree?
A. Yes.
Q. And you have in your suit also relied on the headline and the stand first?
A. Yes.
Q. So that there is no doubt in anybody's mind, about what this article is also about, could you look at the last paragraph of page 336, which reads:
'Whither the NKF from here? Although it continues to bid the public judge it by its works and itseffectiveness, detractors will continue to be fixated by the shroud over its numbers. Like it or not, rumblings are likely to persist until there is more publicity-transparent accounting.'
That sums up that part of the article which talks about transparency; correct?
A. Yes.
Q. It also referred, among other things, to the disclosure or non-disclosure of salaries, to the culture of being cagey and to the use or the number of years for which the reserves would be available; correct?
A. Yes.
Q. Let me take you to what you said yesterday. You accepted that insofar as the rest of the article was concerned, the comment, if it was a comment, was fair; do you remember that?
A. Yes.
Q. And that insofar as the rest of the article is concerned, there is no malice; do you remember that? A. I did not want to -- I did not say there was no malice. I cannot gauge that.
Q. Yes, you are not suggesting there is?
A. I cannot comment on that.
Q. Yes. No, this is a case involving defamation, and I need to know your position. I got the distinctimpression from you -- we can find that if necessary. As I recall it, you agreed that insofar as the rest of the article is concerned, there was no malice; right?
A. I cannot -- as I said, I think I cannot comment on it.
Q. Right. In other words, even though there was no reference to the fact that the $21 million building was funded by five donors, you cannot say that there was malice; right?
A. Beg your pardon?
Q. Even though there is no reference in the article to the fact that the $21 million building was funded by five donors, you cannot say that there was malice; right?
A. I cannot comment on it.
Q. Thank you. If I were to ask you now to state whether you are saying there was malice, your answer would be I am unable to say that; right?
A. For the first six paragraphs --
Q. I am talking about the rest.
A. The rest, yes, I would say that.
Q. That you are unable to say that there was malice?
A. I am unable to say that, yes.
Q. Thank you. Is it your case that although you are unable to say that there was malice in relation to the rest of the article, there was malice in relation to the first six paragraphs?
A. Yes.
Q. You are saying that, are you?
A. Yes.
Q. Do you maintain that?
A. Yes.
Q. Tell us what is the grounds of malice that you rely on for that purpose.
A. Just the article was -- the six paragraphs were wrong, no attempt was made to investigate the allegation, to check thoroughly before venting it. There was a rush to print and no proper work has been done to find out whether the allegations were correct. Anybody doing this would take the responsibility of -- you are writing something about a strong organisation and you would have taken a lot of trouble to see whether what is written is correct and the very fact that you have rushed to print imputes malice.
Q. That is the only basis of malice; right?
A. And a reckless disregard for the truth.
Q. In other words, if I may sum up your position on malice, and please correct me if I am wrong, you are saying that the article or the first six paragraphs were published maliciously because there was a disregard for the truth and a rush to publish it without investigating the truth.
A. Yes.
Q. Any other malice that you are relying on it?
A. I would say this.
Q. Only this; right? So we are quite clear this is the only ground of malice that you are now today maintaining, because I need to know that so I can focus my cross-examination.
A. Yes.
Q. Would you still call it malice if the contractor who spoke to Ms Long is prepared to swear on oath an affidavit that it was a gold tap? In other words, more than one year after the article, the contractor comes forward willingly, is prepared to disclose his identity, come to this court and say on oath that it was a gold tap?
MR KHOO: Your Honour, I have to object to that. Because malice is at the time of publication and not what the contractor is prepared to swear one year later. At the time of the publication.
MR SINGH: I think my learned friend misunderstands my point. The point Mr Durai is making is there was a reckless disregard for the truth. It cannot be a reckless disregard for the truth when in fact that is the position that the person who gave the information is willing to stand by.
MR KHOO: But that is today. He is prepared to swear an affidavit today. The question which the witness has said is: was there proper investigation at that time before the rush to publication? And that would have been 17th or 18th April 2004.
MR SINGH: Your Honour, let me put an example. Let us assume that a day before the article, Ms Long had asked Mr Durai whether it is true that he is receiving $600,000 in annual remuneration. Mr Durai says he needs time to consider before he replies, but Ms Long goes ahead the next day and publishes it anyway. It is proved that it is true. How can it be reckless disregard of the truth? It is logically impossible.
MR KHOO: Only if it is proven to be true, but we have not proven the question of the gold tap to be true. The fact that the man has decided to swear an affidavit does not mean that it is true. That is the fallacy of the argument.
MR SINGH: There is no fallacy because even if it is not proved to be true, if the man who gave that information is prepared to stand by that information, and is prepared to come to court and say on oath that what he said is true, and that he is maintaining it, that is a factor your Honour would have regard to, as to whether or not we acted recklessly. It would be or might be argued to be reckless if there was no such source and no one was produced. But I am fully entitled to ask this witness whether he would still say it is reckless if the source is prepared to come to court.
A. Yes, I would say it is still reckless because any source can come to court and swear an affidavit and make an allegation, rightly or wrongly, or any other way. We would not know. I would not know.
Q. You would because you have made allegations which you have withdrawn; right?
A. No, I mean this particular case.
Q. So you are saying that even though the source is prepared to come to court and state on oath what is stated in the article about the gold tap, you would maintain it is reckless?
A. Yes. Unless the truth is established.
Q. Right. Now let me go to the truth, as you call it. Who was in charge of the project in 1995?
A. From NKF?
Q. Yes.
A. Donald Jacob.
Q. So Donald Jacob would know the facts, whether there was a gold tap or not?
A. Yes.
Q. He would. Indeed, as I read from your affidavit, you have tried to contact him; right?
A. Yes.
Q. Unsuccessfully?
A. Yes.
Q. If I can just show you the reference to it, it is in your AEIC, paragraph 160?
A. Yes.
Q. Page 64?
A. Yes.
Q. Second sentence:
'I therefore instructed Mr Donald Jacob, the then building manager of NKF, to give this instruction to the people involved in the project. When I gave this instruction, I had expected it to be carried out.'
Right?
A. Yes.
Q. Mr Jacob was the man on the ground, as it were?
A. Yes.
Q. He would know what fittings were installed and removed; correct?
A. Possible, yes.
Q. 'Yes' or 'possible'?
A. Yes.
Q. Could you go to paragraph 170:
'In the preparation of this affidavit, we tried without success, to trace the present whereabouts of Mr Donald Jacob who had left the NKF's employ sometime in August 1995. I have been informed by my colleagues that they had gone to his residential address available from NKF records, but were informed that he no longer resides there.'
Can I assume that you went there or your people went there with a view to asking him to give evidence in court?
A. Yes.
Q. The reason you wanted him to give evidence in court is because you consider that he knows the facts; right?
A. He may know the facts.
Q. Why may?
A. I do not know. He may know the facts. I cannot assume --
Q. But you say that he was the building manager and he was the one who was instructed to replace the fittings?
A. Yes.
Q. So he will know the facts?
A. Yes.
Q. Right? So you wanted to call him to give evidence because he knows the facts?
A. Yes.
Q. Right? And you were prepared for him to give evidence because his evidence would be honest and reliable?
A. Yes.
Q. Thank you. But you cannot trace him?
A. Yes, I could not trace him.
Q. Why is it that there is nothing in your affidavit that deals with the toilet bowl? The article says that there was a pricey German toilet bowl; is that not right?
A. Yes.
Q. You do not deal with that at all. Why? Let me show you the portion of your affidavit where you deal with this issue of what you did on the installations?
A. Yes.
Q. Can I ask you to go with me to your affidavit of evidence-in-chief at page 64.
A. Yes.
Q. You talk about the bathroom in the two-storey block at Kim Keat Road?
A. Yes.
Q. You give a detailed explanation of what happened, according to you?
A. Yes.
Q. Right? Can you tell this court what was removed.
A. I ordered the removal of the shower mixer and the shower -- the wash basin mixer.
Q. My question is a different one. What was removed?
A. Those two items.
Q. Was anything else removed?
A. Insofar as after -- I am only aware of what was removed after 3rd January, these two items.
Q. So your evidence is, as far as you know, nothing else was removed?
A. After 3rd January.
Q. Or at any time?
A. I would not know. I am not aware.
Q. That is why I say as far as you know?
A. Yes.
Q. Right? Nothing else was removed. I would like to show you your answer to interrogatories, this bundle, tab 1. Look at page 2, question 2:
'... the bathroom was not for the exclusive use of the 2nd plaintiff.'
That is you?
A. Yes.
Q. Mr Durai, where was the entrance to the bathroom?
A. It was through my office.
Q. Someone who wanted to go into the bathroom would have to go into your office and into the bathroom?
A. Yes, there were many people who used it that way.
Q. Yes. So a member of the staff who wanted to use thatbathroom would have to go, walk right into the CEO's office and then go into the bathroom?
A. That is what it was at that point of time.
Q. It just seems odd that if you were renovating it to make it a common bathroom, that you would have the entrance through your room as opposed to general entrance for everybody.
A. It was done in that fashion at that point of time.
Q. We know that. Now answer my question. If it was meant for everybody, why have the entrance through your room?
A. It was designed in that fashion and I cannot comment on that.
Q. You cannot?
A. It was not meant for everybody, but anybody can use it if they wanted to use it.
Q. Of course. I am sure. Anybody can use any bathroom in Singapore; it is a question of whether they have access and are prepared to use it. Mr Durai, please answer the question. Why if, as you claim, the bathroom was for anyone to use it, did you choose to have the entrance through your office?
A. I can only say it was a design put up and it was what it was and it was functionally used in that manner. It was not something which I deliberately did to prevent people from coming in.
Q. Was it an oversight?
A. It was not an oversight. That is what it was.
Q. Can I take it that you saw, either on the plans or while it was being constructed, you saw that this bathroom was being constructed with an entrance from your private office.
A. Yes, beside my office.
Q. It is attached to your office?
A. Yes.
Q. You saw that there was no other general entrance.
A. Yes.
Q. In fact over and above the bathroom or rather in the bathroom, there was a shower; right?
A. That is one corner of it, yes.
Q. So anybody can come in and bathe?
A. Yes, my other senior colleagues were using it to bathe.
Q. You see, Mr Durai, forgive me if I am wrong, because I have not had the benefit of such a luxury. People do that because they want it to be private, for their private use; would you agree with me?
A. No, it was not -- I want to tell the factual position. It was a simple toilet. The other -- my other colleagues were using it. The other people who were working there for seven months, they used the toilet to take a bath. That is the way we operate.
Q. You see, Mr Durai, what you really mean is this. I am sorry, was there not also a glass dividing wall between your office and the private bathroom?
A. No.
Q. Was it not?
A. No.
Q. What was it then?
A. Wooden.
Q. Wooden?
A. Yes.
Q. Let me just remind you, and while I remind you, if you could just think about that. The article says there was a glass-panelled shower. Is that true?
A. No, it was actually just a glass on a wall.
Q. Answer my question.
A. But it is not true in this sense.
Q. So there was no glass-panelled shower?
A. It was just a glass cover on a wall.
Q. Sorry?
A. It was one corner of the place with a glass door.
Q. Right. So it is a glass-panelled shower. In other words, God forbid, anybody wants to see you bathing, they could see right through; right?
A. Yes.
Q. Is that consistent with it being a toilet or bathroomfor general usage?
A. There was a toilet bowl, anybody could take a bath, that is how it was. If anybody wanted to use it, they could use it.
Q. We will move on. I think what you really meant, to be fair to you, was this is my bathroom, this is my toilet, but if I am having meetings in my office with my senior staff or VIPs or donors, and they wanted to use the bathroom, they were welcome to do it; right?
A. No, and if any of the directors -- many of the directors were using to bathroom for their facilities. My senior associate director and the others.
Q. Let us just move on. Look at the interrogatories at page 2 of tab 1. You were aware, looking at questions 4 and 5, that a toilet bowl of the Monte Carlo brand was installed; right?
A. From looking at the bills, yes.
Q. And you were also aware, looking at the answer to question 6, that it cost $1,100?
A. Yes.
Q. Right?
A. Yes. I now know that.
Q. Yes. Insofar as that is concerned, is it not the case that the toilet bowl was replaced?
A. Yes, I think they must have replaced a new toilet bowl, yes.
Q. Then why is it that you said there was no replacement of the toilet bowl?
A. No, I was --
Q. Answer my question. Why is it that yesterday you said the toilet bowl was not replaced?
A. No, I was referring to an installation of the Monte Carlo toilet bowl, which was not replaced. That is what I was referring because the toilet bowl was there, the wash basin was there, the fittings were there, and I was saying these two fittings were removed, the others were not replaced. That is what I meant yesterday.
Q. Therefore, you are saying that the toilet bowl that was installed was the Monte Carlo one and that was not replaced?
A. The Monte Carlo toilet bowl was not replaced, I think so.
Q. No, do not say 'I think so' because now we are not clear what your position is.
A. No, insofar as I was concerned, at that point, on 3rd January when I went there, I wanted the two fittings only to be removed. Whatever it was there was there. It was not replaced thereafter. That is what I was meaning.
Q. So it follows that since you did not ask for these other fittings to be removed, there was no reason to remove it; right?
A. Yes.
Q. Correct? Therefore your evidence must be that the toilet bowl was not removed; right?
A. Yes, after 3rd January.
Q. Or at any time?
MR KHOO: No, I think you must be specific. After 3rd January and he specifically says the Monte Carlo toilet bowl was never removed.
MR SINGH: That is fine.
MR KHOO: But do not say 'any time' because it could have been done one year before that. There could have been a removal. We do not know.
MR SINGH: Mr Khoo would know that one year before that there was no private suite.
MR KHOO: No, but there was a toilet there.
MR SINGH: Mr Durai, you say after 3rd January, the Monte Carlo toilet bowl costing $1,100 was not removed; correct?
A. Yes.
Q. Thank you. Go with me to the core bundle, page 16. This is the invoice which NKF says represents the fittings that were originally installed?
A. Yes.
Q. This invoice is dated 21st December 1994?
A. Yes.
Q. So that there is no doubt about it, I should just state we do not accept this, but I am just taking it as your case?
A. Yes.
Q. According to this invoice, the following items were fixed to that toilet or bathroom:
'Monte Carlo WC 'S' suite complete with cistern ... $1,100.
Monte Carlo vanity top basin ... $380.
Hansa Star Ronda bath/shower mixer ... $990' --
MR KHOO: Can you please read the entire installation.
MR SINGH: Certainly:
'... complete with Cobra sliding shower (white/gold) -- $990.
Hansa Star Ronda basin mixer complete with pop up (white/gold) -- $680 .
Total -- $3,150.
Less: Discount 10 per cent.
Taxable amount ...
Add: GST.
Total payable -- $2,920.'
Yes?
A. Yes.
Q. Of these four items, your evidence is only 3 and 4 were replaced?
A. Yes.
Q. Not 1 and 2?
A. I do not recall, yes.
Q. Go to CB18.
A. Yes.
Q. This is an invoice also produced by NKF from United Constrade, the contractors?
A. Yes.
Q. Addressed to the architects of that project, 25th February 1995. This is after 3rd January that you referred to, so there is no doubt. Could you turn to the next page. You see a reference at item 7 to CEO toilet?
A. Yes.
Q. Could you tell us what was dismantled, according to this invoice that you produced?
A. '7(a) Supply basin and shower mixer and to dismantle WC, shower mixer, wash basin and basin mixer.'
Q. The toilet was dismantled also?
A. No. Can I explain.
Q. Please.
A. There was already an existing toilet at that point of time, so the fittings were taken away, and I presume this was what occurred. There was already an existing toilet before this and they redid the toilet with new fittings.
Q. Is that the honest answer?
A. Yes.
Q. So you are saying that although there was an existing toilet at that time, you spent money on a new toilet?
A. No. The toilet fittings were already worn out and washed out so the toilet fittings were taken and new toilet fittings were placed.
Q. I see. Is that the same for the wash basin?
A. I should think so. Because --
Q. Please be straight and tell us, is that the same with the wash basin? Are you saying that there was already a wash basin?
A. Yes.
Q. And that it was dismantled?
A. There was a toilet before that.
Q. I am sorry?
A. There was a toilet with a WC and all the other fittings.
Q. My question is --
A. There was a toilet, there was a wash basin, because I had used it before.
Q. Right. So there was a usable toilet?
A. Yes.
Q. And there was a usable wash basin and your evidence is that both were replaced?
A. Yes, I think so, yes.
Q. Sorry?
A. They were replaced.
Q. Look at page 19, where we are. It says: '7(a) Supply basin and shower mixer and to dismantle WC, shower mixer, wash basin and basin mixer.'
A. Yes.
Q. So you see, Mr Durai, this invoice is for the replacement of all four items that were installed, because, as you have admitted, the basin and shower mixers were replaced?
A. I think it is a total payment for the entire job done, because I remember specifically there was -- that there was an old toilet and the fittings were there.
Q. Is this not the document which NKF is relying on to show that the basin and shower mixers were replaced?
A. Yes.
Q. Does not this document show that at the same time as those two were replaced, the other two items were replaced?
A. The other two existing items were replaced, I would say that.
Q. If you look at (b): 'Labour to reinstall WC.'
A. Yes.
Q. Reinstall means it had been installed before, removed and reinstalled?
A. The actual truth was the old toilet was taken and this was fixed there.
Q. Again, it refers to all four items: '7(b) Labour to reinstall WC, shower mixer, wash basin and basin mixer ...'
A. This is what happened. This is my estimation of what happened at that point of time.
Q. You see, what happened, from your own documents, is that the NKF spent $2,920 on these items, and according to you or according to the invoice, spent another $810 to replace all or some of them. Right?
A. No, the items that were reinstalled were the shower mixer and the wash basin mixer, according to me.
Q. On your evidence, if we are to accept it, the toilet bowl that was installed and not removed is $1,100?
A. Yes.
Q. And you do not consider that to be a pricey toilet bowl?
A. It was a lump sum contract. I did not know anything --
Q. Answer my question.
A. No, I did not know about the price at that point of time.
Q. I am asking you now. Do you consider that to be a pricey toilet bowl?
A. Yes, I would think so, yes.
Q. Thank you. So the article to that extent, is true?
A. Yes.
Q. Why is it that you have used the word 'pricey toilet bowl' and sued on it when it is true? Tell me.
A. Because I was referring more to the gold-plated tap.
Q. You were not, and please let us not waste time. We have been through this case one and a half days, almost two days. We know you are also suing on the pricey toilet bowl. You say it is defamatory, it is false, but now you say it is true. Do you withdraw your claim for defamation on the basis of your answer just given in relation to the pricey toilet bowl?
A. No, I think it was a lump sum contract. It is a matter of opinion whether --
Q. Do you withdraw your claim for defamation to the extent that it refers to the pricey German toilet bowl?
A. It is not a German toilet bowl.
Q. Do you withdraw your claim for defamation insofar as it concerns a pricey toilet bowl?
A. Yes.
Q. Right? You do?
A. I do.
Q. Do you withdraw your claim for defamation on the basis of the reference to a glass-panelled shower? Because now we know there was one?
A. Yes.
Q. You do? You sued for the glass-panelled shower and the German toilet bowl because it gave the impression of extravagance; right?
A. No.
Q. Do you want me to remind you of your meaning?
A. Because I was just saying, most of the tap --
Q. We will come to the tap. You sued for defamation on the glass-panelled shower and the pricey toilet bowl on the basis that it suggested extravagance; correct?
A. Together with the gold tap.
Q. Please, Mr Durai. Do you or do you not agree?
A. Yes.
Q. You do. You have today confirmed that the toilet bowl is pricey; correct?
A. Yes.
Q. It is therefore extravagant; correct?
A. I am not saying it is extravagant. I am just saying it is pricey, yes.
Q. If it is pricey, it means it is expensive?
A. Yes.
Q. It means it is not necessary for that kind of expenditure for a charity; right?
A. Yes.
Q. So it is extravagant for a charity. So given that it is true, it is true that the first six paragraphs contain a true allegation of extravagance, do you withdraw your claim for defamation against the defendants?
A. No, I mean, the allegation on the gold-plated tap is defamatory.
Q. All right. I will make it easier for you. Do you withdraw your claim for defamation in relation to the other items apart from the tap?
A. Yes.
Q. You do? Thank you very much. Do you accept that if it is a pricey toilet bowl, that that is mismanagement of public funds?
A. No. I did not know that at that point of time. It was a lump sum contract.
Q. I am asking you now. Please, Mr Durai, we all know what a lump sum contract means. It does not mean here is the money, do what you want with it. Someone has to monitor the items so that you get value for money, even though it is lump sum. We know how that game is played. Answer this question. Do you accept, today, that if it is a pricey toilet bowl, as you accept it is, that that is mismanagement of public funds?
A. I do not think so it is mismanagement. Somebody would have made a mistake.
Q. Today, sir, today. Having regard to that mistake that you say took place, that amounts to mismanagement?
A. I did not say it is mismanagement. Mismanagement of the whole operation of the contract, yes.
Q. Thank you very much. Therefore, mismanagement of the funds used for that contract; right?
A. It was not done by me.
Q. I am not asking you, sir, whether it is done by you. I am just asking you to accept, as you must, that that means mismanagement of the funds used for that contract; correct?
A. Yes.
Q. Therefore, after all this time, we are left with the tap. And we come to that now. Before we do that, could you tell us who made that mistake in NKF in relation to the pricey toilet bowl -- who made that mistake?
A. I beg your pardon?
Q. Who made that mistake in relation to that pricey toilet bowl?
A. It was a tender. I wouldn't know.
Q. It is your toilet. You went to inspect it. According to you, you were appalled by the mixers. You say the toilet bowl, so you cannot disclaim knowledge. Who made that mistake about the $1,100 bowl?
A. One of my juniors would have made the mistake.
Q. Sorry?
A. One of the juniors must have made the mistake.
Q. Who is that?
A. Possibly Donald Jacob.
Q. So somebody else made the mistake. Right. Now you tell me this, sir. If $1,100 is pricey for a toilet bowl, is not $990 pricey for a tap?
MR KHOO: Again, your Honour, 'Is not $990 pricey for a tap?' Which tap is he referring to? There are two taps. One is a shower mixer and one is a wash basin mixer.
MR SINGH: All right. I will clarify.
MR KHOO: And the $990 includes the shower head and the sliding bar. I think this has been made clear. It is in the invoice read by my learned friend. So perhaps if he could be more accurate.
MR SINGH: Let me ask you again. If $1,100 is pricey for a toilet bowl, is $1,000 pricey for a tap, complete with shower, sliding?
A. On reflection, at this point of time, I would say yes, it is.
Q. Thank you very much. Therefore, it is extravagant for a public charity; yes?
A. That is why I intervened to look at it, to replace.
Q. Mr Durai, the reason I am asking you is because in your affidavit, you have maintained it is not expensive, you have now changed your position?
A. No, I am just --
Q. Wait, Mr Durai. You now changed your position. It has taken us a long time to get there, and I suspect we will make very good progress in the next half hour. In other words, the evidence just now given, the expenditure on that tap complete with shower, which is sliding, was extravagant, for a public charity?
A. I did not know the price at that point of time.
Q. Now, sir --
A. It was expensive, I would say.
Q. Extravagant for a public charity. You see, Mr Durai, you may not have known of the price then, okay? Let us assume that to be the case. Today, with the opportunity of knowing everything, would you accept that the tap with shower, blah, blah, blah, at $1,000, before discount, is extravagant for a public charity?
A. Yes, I would say so.
Q. Thank you very much. In view of that, are you still proceeding with this claim for defamation?
A. Because I am still proceeding with the claim for defamation because I did not install a gold-plated tap.
Q. Mr Durai, does not a reference to gold plated mean extravagance?
A. It means extravagance to the extreme, phenomenal, you know --
Q. You see, the fortunate thing about the article is that it talked about a gold tap of at least $1,000, so there was, for the reader, a reference. It did not say it was a diamond-studded gold tap with platinum. It said a gold tap of at least $1,000. In fact, you quoted the words 'at least $1,000'. In view of that, would you accept, sir, that the term 'gold tap' is a metaphor for extravagance for a public charity?
A. No, it is an allegation of immense proportion.
Q. Would it have --
A. And comparing me to a Bill Gates makes it really far more opulent and extravagant.
Q. Would it have been okay if the article had said that NKF purchased was extravagant in its purchase of a tap?
A. No, I do not think so.
Q. It would not have been?
A. It would have been.
Q. It would have been okay?
A. It would have been not okay.
Q. But it is true. You have accepted it is extravagant. Yes?
A. Accepted what?
Q. You have accepted that it was extravagant. So if the article had said that NKF had purchased extravagant taps, that would have been correct?
A. Yes.
Q. And you are still saying that by using the word 'gold tap', it gives a completely different picture?
A. Yes, and the manner in which the whole thing is written about the contractor getting angry with me, you know.
Q. Let us go there now. We will come back to the gold in a moment. When you agree with me that it is extravagant, it means that this is something the charity using people's money should not have done; right?
A. Yes.
Q. Because it is public money, not your own money; right?
A. Yes.
Q. If it is your own money, then you can do what you like with it?
A. Yes.
Q. So it is correct to say, is it not, that if you are Bill Gates, and it is your own money, you do what you want with it?
A. But --
Q. But if it is public money, it is extravagant. Is that not true?
A. No, but it never occurred to me.
Q. Wait.
A. Yes --
Q. We have already passed a very critical point in this case where you have accepted extravagance?
A. Yes.
Q. You talked about Bill Gates, so I just wanted to deal with that point.
A. Yes.
Q. Do you agree with me that it is perfectly legitimate and understandable to make reference to Bill Gates, because it is a way of saying, in a very pointed form, that if it is your money, you do what you want, but if it is public money, please, do not be extravagant, be prudent.
A. Yes.
Q. That is the reference to Bill Gates, right, in a pointed way; correct?
A. Yes.
Q. It is true, is it not? Is it not true?
A. Yes.
Q. Thank you. So we come back to the gold tap. As far as the gold tap is concerned, the public gets the impression, according to you, that it is extravagant; correct?
A. Yes, extravagant, phenomenally extravagant.
Q. Yes, extravagant or you said -- A. To the extreme.
Q. In other words, it is something that should not have been done with public funds; right?
A. Yes.
Q. But shower mixer complete with everything, and I am just using blah blah, so that Mr Khoo does not object, with everything, at $1,000, can also be considered extravagant to the extreme?
A. No, I do not think so. I think it was an average cost. It is a matter of opinion.
Q. Yes. That is why I say can also be considered extravagant to the extreme.
A. Not to the extreme.
Q. For someone who earns $3,000 to $4,000, your test, remember this morning?
A. Yes.
Q. Can be considered extreme in extravagance?
A. Yes.
Q. So there is no difference, therefore, in the message between a tap costing $1,000 or a gold tap costing at least $1,000. It is the same message, which is extravagance or extravagance in the extreme?
A. A gold tap is something beyond just being simply extravagant. It conjures an impression that I was an emperor who wanted something so lavish. That is the way I looked at it.
Q. But that is not your meaning. You do not plead that it means that you are the emperor. In fact, you do not even plead that there was dishonesty. This is not the defendants' case. So rest assured. All I am trying to demonstrate to you, sir, by logic and by reference to the article, is that even without the gold tap reference in the article, the article conveyed the message that there was extravagance by reference to a tap costing at least $1,000 plus a pricey bowl; correct?
A. Yes.
Q. And when you put gold in there, it conveys the same impression?
A. I disagree with that. I think it is a far more --
Q. Far more. However, when you say a gold tap costing at least $1,000, then there is a reference as to the value of the gold tap; right?
A. At least, yes.
Q. So the reader will walk away thinking that, yes, there was a gold tap, at least $1,000 and an unknown sum for the others; right?
A. No. The reader would have got the impression that I was fixing a gold tap in the literal sense.
Q. No, they did not say gold tap in the literal sense --
A. Gold-plated tap --
Q. Gold-plated tap costing at least $1,000, so let us stick with the words.
A. Yes.
Q. You have two different options. Option A, a gold tap costing at least $1,000 and a pricey toilet bowl. All right?
A. Yes.
Q. Option B, you have a tap complete with shower costing $1,000 and pricey toilet bowl costing $1,100. The reader is going to walk away with a worst impression on the second one, is it not?
A. No, on the first one because the first one talks of one tap costing $1,000. Here is a whole shower mixer.
Q. Mr Durai, at the end of the day, you have accepted that a reference to a tap with a shower sliding, et cetera, et cetera, is extravagant. So let us not go back to that point. I am just trying to resolve things as quickly and smoothly as possible. You continue to keep referring to the gold tap, but what I put to you is a very simple proposition, from which I suggest you cannot logically resile. It would have been worse if the article had said at least $1,000 for the gold tap and another $1,100 for the toilet bowl. Right?
A. Beg your pardon?
Q. It would have been worse.
A. Again?
Q. Sorry. It would have been worse if it had said at least $1,000 for the gold tap and $1,100 for the toilet bowl, because you have agreed with me that both are extravagant?
A. Yes.
Q. Correct? If that is the case, it follows that it is less worse if only one price is referred to as opposed to both; correct?
A. Less worse, but not true.
Q. Fine. Even if it is not true, we know now that there was extravagant spending on that tap/shower; right? So even if your stand today, as publicly known, is that there was no gold tap, something that we do not agree with, you have accepted that there was extravagant spending; right?
A. Not by me.
Q. Not by you, but by NKF under your CEOship?
A. No, it was a lump sum contract. I would not know that.
Q. I am going to try again. NKF at the time when you were its CEO spent extravagantly on toilet bathroom fittings. You have agreed with that?
A. No, I am saying that it -- I would not know -- I did not know anything at that point of time.
Q. I am asking you now, because justification is about events that even occur now and, Mr Durai, if you want to say that you did not know it then, but you now know it, and you have realised what has happened, that is fine. And that is where I am headed for. Today you agree with me that it is true that the NKF had spent extravagantly on bathroom fittings?
A. I would not think so. I am just saying that it was a lump sum contract. We paid for it.
Q. Mr Durai, please, you have already agreed on extravagance in relation to the tap with shower --
A. No, I would consider if you purchased it, it was expensive, yes.
Q. You said 'extravagant' as well, so I am going to repeat this to you. Today you accept that the NKF and I know you are saying you had no involvement in it, had spent extravagantly on bathroom fittings. Right?
COURT: What is your answer?
A. Yes.
MR SINGH: Thank you. That is the message in the six paragraphs; right?
A. The message in the six paragraphs are higher than that.
Q. What?
A. No, it is an allegation of a contractor screaming at me and --
Q. We will go to that in a moment. But insofar as your meaning is concerned, let us take your meaning one at a time. Go to your statement of claim, the setting down bundle, tab 1. I remind you of your answers where you said it was expensive and you agreed with me they were extravagant for a public charity. Your meaning number A. On that meaning, it is correct, is it not?
A. I will not say we misused the funds.
Q. Mr Durai, when it is extravagant for a public charity, it means it was not necessary. If it was not necessary, funds which should not have been used for it were used. That, in the way I understand English, is mismanagement or misuse?
A. It was wrongly used.
Q. All right. So do you agree from your evidence today that even on the basis of your own meaning, A has been made out?
A. Yes.
Q. Thank you. Look at B. You agreed earlier with mismanagement; do you remember?
A. Yes.
Q. That has been made out; correct?
A. Yes.
Q. Look at C. If the court finds that there was no suggestion that you did it personally, but it was done at a time when you were the CEO, then that meaning would have been made out; correct?
A. Wrongly used the funds.
Q. Thank you, sir. 7(c) is made out. Correct?
A. Yes.
Q. D. It is true that the taps were scaled down to an upmarket chrome-plated model?
A. No, it is not an upmarket chrome-plated model.
Q. Is it true that it was changed?
A. It was changed, yes.
Q. And it was scaled down?
A. Yes.
Q. In fact, I will show you the difference in the price. You keep this page open. I am coming back to it at CB17. It is another bundle, it is my core bundle at page 17. Page 17 is the invoice for what NKF claims are the replacement items?
A. Yes.
Q. If you look at the mixers, they cost -- one of them $215 and is the other $295?
A. Yes.
Q. Before discount?
A. Yes.
Q. Insofar as the shower mixer is concerned, there is a difference of about $600?
A. Yes.
Q. Insofar as the basin mixer is concerned, there is a difference of about $450?
A. Yes.
Q. These were scaled down quite considerably?
A. Yes.
Q. In fact, if this document reflects the position, it shows the nature and degree of the extravagance, is it not, from $990, scaled down to $300, is a cut of about 66 per cent?
A. Yes.
Q. Right?
A. The price was cheaper, yes.
Q. Much cheaper. Is it not true that the installations were scaled down?
A. On my instructions.
Q. Right?
A. On my instructions.
Q. Therefore --
A. Not because the contractor or somebody screamed.
Q. Right. That is where you are taking issue. Let us go to the article and show us where it says that that was the implication. Page 335 of the 2DB. Let us look at these paragraphs. The first paragraph says:
'A retired contractor who wants to be known only as Mr Tan ... Chief Executive TT Durai's office suite ... 'I started screaming my head off. The gold-plated tap alone cost at least $1,000. It was crazy. If you are Bill Gates and own your own multinational, whatever you want, fine. But you're a charity, using donors' money,' he huffs. After his outburst, he was told to 'just do' his job.'
Is there any suggestion there that you told him to do his job?
A. No.
Q. Thank you.
'The shower stall remained, but the taps he eventually installed were 'scaled down' to an up-market chrome-plated model. To this day ...'
Then we talk about his reaction. Where does it suggest that it was scaled down because the contractor protested to you?
A. This is the innuendo that is made here, that it is because of the contractor's protestation that I -- that we scale it down.
Q. Tell us where. Show me.
A. This is my reading of it.
Q. No, you have to be specific, because you cannot just say, 'This is my reading.' It has to be a reasonable reading.
A. Yes. From:
'After his outburst ... the shower stall remained, but the taps he eventually ... 'scaled down' to an upmarket chrome-plated model.'
There could be no other reason why it was scaled down, other than because of somebody's protestation.
Q. All it says is after his outburst, he was told to just do his job; right?
A. Yes.
Q. In fact, it is the contrary. In other words, after his outburst, NKF maintained its position, right, not that you backed down. It is contrary to what you are suggesting.
A. No. After his outburst, he was told to do his job --
Q. Stop there. Stop there. He was told to do his job.
A. Yes.
Q. Contrary to what you are suggesting, if there is any inference to be drawn from that, the NKF is saying, 'Just do your work. Install it. Despite your outburst.'
A. Yes.
Q. There is nothing there to suggest that there was embarrassment, shame or a climb down?
A. No, the impression --
Q. No, wait. Stop there. Do you agree that there is nothing in that sentence which suggests embarrassment, shame or a climb down after the protests?
A. To me, it sounded as an embarrassment to us.
Q. Okay. Now I give you another chance, with the benefit of the time you have spent in the box. Read this again. Would you agree with me that that sentence does not suggest that you changed it because of the protests?
A. No, my reading is that is my impression. There could be no other reason for it to be changed, other than because of his protests.
Q. Right. Then I have to ask you to look at it again, because this is one of the last two meanings that you are maintaining. 'After his outburst, he was told to 'just do' his job.' Does that mean that the NKF changed its mind after the outburst or does it mean that it stood firm?
A. No, after his outburst, the NKF changed its mind.
Q. But it says: 'After his outburst, he was told to 'just do' his job.'
A. Yes, and then, thereafter --
Q. No, wait. We will take it a sentence at a time.
A. Yes.
Q. On that sentence, do you not agree that it meant that the NKF maintained its position?
A. Yes.
Q. Thank you. Then I read on, 'The shower stall remained ...' right?
A. Yes.
Q. 'But the taps he eventually installed were 'scaled down' to an upmarket chrome-plated model.'
A. Yes.
Q. In other words, after the contractor protested, NKF said, 'Carry on. Do your job.' Right?
A. And thereafter there was --
Q. Wait. And then NKF later decided to keep the shower; right?
A. But because of his protestation. That is the way I read it.
Q. No, I am trying to show you that that is a completely unnatural and unreasonable reading.
A. Because on a reading of it, that is the impression I think the reader would get.
Q. You see, Mr Durai, all this paragraph suggests is that, in chronological terms, first the contractor said something, then NKF said 'carry on', then he carried on, then the NKF decided, after he had carried on, to change one of the two things. Is that not the chronological reading of these paragraphs?
A. My impression is --
Q. 'Yes' or 'no'?
A. No.
Q. Does not this paragraph support what I just said? Read it again.
A. I have read it again.
Q. 'After his outburst, he was told to 'just do' his job. The shower stall remained, but the taps he eventually installed were 'scaled down' to an upmarket chrome-plated model.' In other words, in terms of sequence of events, what I have described took place.
A. No.
Q. You do not agree, right. So what is defamatory about that? On your reading, what is defamatory?
A. That I was shamed by him to change the tap.
Q. Right. But it would be true, would it not, that if in fact the contractor had come to you and had said to you, 'Mr Durai, this is extravagant and it is wrong', you would have changed the tap?
A. Yes, but I did it on my own.
Q. Yes, I understand that.
A. I did it on my own. The allegation is some contractor came, screamed his head off and it is because of that that I took action to change it. It is not true.
Q. Where is the reference to you?
A. Us.
Q. No, no, please, where is the reference --
A. It is a reference to the NKF.
Q. Yes, but you just told us that there were other people who were doing this job?
A. Yes.
Q. Nobody expects a CEO to be installing taps; right?
A. Yes.
Q. So the reasonable reader is not going to think --
A. But --
Q. One second. The reasonable reader is not going to think that the CEO was involved in the installation of taps; correct?
A. No.
Q. Yes?
A. No.
Q. You do not agree?
A. Yes. But the reasonable reader -- no. The reasonable --
COURT: What are you saying?
A. No, I think I got your question wrongly. Can you repeat it, please?
MR SINGH: The reasonable reader would not think that the CEO was involved in the installation of taps?
A. Yes.
Q. Right?
A. Yes.
Q. The reasonable reader would not think that the CEO deals with the contractor; correct?
A. Yes.
Q. So how is it that anyone would read that there was a protest to you --
A. No --
Q. One second. And that you were shamed into changing it?
A. No. The NKF was shamed into changing it.
Q. Right. So let us keep you out of the picture. Let us talk about the NKF. If that is the case, then go to your meaning in paragraph 7(d) of the statement of claim, the setting down bundle, page 6 of tab 1. We are now at 7(d), having disposed of (a), (b) and (c). In paragraph 7(d), you say that the article means -- A. What page?
Q. Page 6, sir. You say it means: 'NKF ... alternatively you ... agreed not to install the gold-plated taps had them 'scaled down' ...because of ... protestations.' We have now accepted that nobody would think you were involved; right?
A. Which page?
Q. Page 6, (d), at the top.
A. Yes.
Q. Therefore, you would accept that the meaning that you plead there is not correct because nobody would think that you were the one to whom the protests were made and was shamed into changing; right?
A. I do not get your page.
Q. Page 6.
A. Can you read that again, please?
Q. At the top you see --
A. Yes.
Q. You have pleaded as your fourth meaning that NKF, alternatively you, agreed not to install because of the protests; right?
A. Yes.
Q. You earlier agreed that no reasonable person will think that the CEO was involved; right?
A. Yes.
Q. Therefore, this meaning is not sustainable. It can only mean, at best, that the NKF agreed not to install because of the protests -- nothing to do with you. Do you agree?
A. Yes.
Q. So we have now moved on further. Let us take that meaning as now changed. It says: 'NKF ... agreed not to install ... and had them 'scaled down' ... only because of the ... protestations.' Is it not true that the NKF had it installed?
A. The gold-plated tap?
Q. No, the extravagant fittings.
A. No, the gold-plated tap. We did not fit a gold-plated tap.
Q. No, we are past that. Just assume with me we are past that, that the NKF had installed extravagantly expensive fittings; true?
A. Yes.
Q. Is it not true that the NKF later agreed not to install them?
A. We took it out, yes.
Q. Is it not true that between the time of installation and removal, there was a protest?
A. No.
Q. You do not know?
A. I am not aware of that.
Q. That is right. If I tell you that, in fact, a contractor complained to another contractor about it, would you be in a position to dispute it?
A. No. The contractor must complain to the NKF.
Q. No, no. Wait. We have evidence that Mr David Tan complained to another contractor; right? And there is no evidence from the NKF disputing that. Now that you know that there were extravagant fittings, that there will be evidence that
there was a complaint by the contractor to another and that they were removed, would you not agree with me that what is stated in the article is true?
A. No, the allegation is the contractor complained to somebody from the NKF and that is why we were shamed into scaling down the upmarket tap.
Q. No, you have changed your ground. First you said you were personally shamed into changing. Now you have dropped that; right?
A. Yes.
Q. Let us go to now whether NKF was shamed. Show me where in the article it suggests that.
A. That is the implication of the article.
Q. Show me where. Tell the court.
A. That is my reading of it.
Q. Tell us where.
A. Because he was told to do his job and there would be noother reason for us to change the tap, other than the protestation of the contractor.
Q. But if the public considers that the CEO would not be involved in the installation, the public might think that you stepped in and put things right; correct?
A. No, the public would have thought that it is because of this person's protestation, the NKF, in order to avoid embarrassment, changed it.
Q. How can that be a fair reading when the NKF told him to carry on with his job?
A. That is my reading of it and that is what I think the public reads it, because otherwise --
Q. You see --
MR KHOO: Your Honour, it was not the NKF who told him to do his job. That is not the evidence.
MR SINGH: No, I am talking about the article and the reading that a reasonable reader would take from the article. It says here:
'After his outburst, he was told to 'just do' his job.'
Right?
MR KHOO: Yes. Not the NKF.
MR SINGH: Thank you very much. So if it was not the NKF, then who was it? Your lawyer said it is not the NKF. Who was it?
A. I do not get you.
Q. You do not get your own lawyer, right, because you are flummoxed.
A. No --
Q. He said it was not the NKF, so tell us --
A. No, NKF did not tell him to do his job. Yes, correct.
MR KHOO: That is only assuming that this version is true, but certainly it was not the NKF who was involved. That is all I am pointing out.
MR SINGH: You see, I am going to put to you, because we have spent a lot of time on this, that there is nothing in the article to suggest that the NKF decided to downgrade because of protests?
A. It is the reading.
Q. Sorry?
A. I disagree with you.
Q. In fact, in your letter of demand, you did not even have this meaning in it. Do you remember yesterday?
A. Yes.
Q. Right? So it could not have been your reading at the time you read the article?
A. No, my reading at the time --
Q. No, Mr Durai. When you read the article, you yourself did not form the impression that you are now giving; yes?
A. No. I formed the impression that --
Q. I will just show you the letter of demand, if you insist. It is in your affidavit, I think. Just a minute, your Honour.
COURT: There has been a request from the court reporters for a break.
MR SINGH: This might be a good time, yes.
(A short adjournment)
MR KHOO: On the request for the letter of appointment, we have not been able to trace it just yet, the letter of appointment which my learned friend seeks. Overnight we might just do it. If we get it, we will let him have it.
MR SINGH: I am grateful. Mr Durai, the document I wanted you to look at is in volume 2 of the defendants' bundle of documents, page 356. This was the letter of demand you sent on 19th April after consultation with your lawyers?
A. Yes.
Q. Yesterday you confirmed that you had considered it, considered the matter carefully, after reading the article, having consulted your lawyers, this is the
defamation that you say took place as a result of that article. Could you go to page 357. You will see that there is no reference in that demand, as far as meaning is concerned, to NKF agreeing to downgrade because of the protests; correct? The present paragraph 7(d) of your statement of claim?
A. Yes.
Q. Therefore, it is correct to say, is it not, that having considered the matter, having read the article, having consulted others who also read the article, having consulted your lawyers, you never considered that the article bore the meaning that the NKF or you had backed down because you were shamed into doing so?
A. That is not so.
Q. I think the answer is quite clear. I am going to ask you again. As of 19th April, when the letter of demand was sent, having read the article, having considered it with others who had read it, having consulted your lawyers, you never considered that the article meant that you were shamed into changing the installations?
A. No, I honestly felt that I was -- we were shamed into changing the installation.
Q. Then why is it not in your letter of demand where you take pains to spell out in detail what the article means? Another oversight?
A. I think this is oversight.
Q. This is a collective oversight among you, the others whom you consulted and all the professionals; is that right? Sorry?
A. Yes, I think so.
Q. Mr Durai, if you could go back to the statement of claim, if you look at paragraph 7(d), the meaning that you have put to the words is, 'NKF ... alternatively you agree ...' Right? Keep that page open and go to your evidence-in-chief. You had earlier agreed with me -- listen to me, please -- that a reasonable reader would not conclude that you personally were shamed into downgrading, because nobody would think that the CEO is involved; right?
A. Yes.
Q. Therefore, the remaining meaning at paragraph 7(d) was that the NKF was shamed into it; right?
A. Yes.
Q. I would like you to look at paragraph 3 of your affidavit of evidence, where you say at paragraph 3, last line of the main paragraph: 'Any reasonable reader of the words would conclude that ... (b) I was shamed by the loud protestations of the alleged contractor into scaling down the allegedgold-plated tap ...' So you accept that that is not correct?
A. Possibly, yes.
Q. Thank you. Therefore, paragraph 3 sets out your latest version of what you believe the article meant; right?
A. Yes.
Q. There is nothing in paragraph 3 about the NKF being shamed into it; right?
A. Yes.
Q. Therefore, would you accept from me that paragraph 7(d) no longer applies?
A. Yes.
Q. Thank you very much. Now let us go to the last one, paragraph 7(e).
A. Sorry, you were saying?
Q. Paragraph 7(d).
A. No, I am afraid -- I thought you were talking about 3(b).
Q. No.
A. I did not know. Where?
Q. Paragraph 7(d). Take your time. Please, do not rush.
A. From where?
Q. The statement of claim. Keep paragraph 3 open and also keep paragraph 7(d) open.
A. Yes, the claim is still there, the plaintiffalternatively the 2nd defendant. I am saying the 2nd plaintiff is not shamed into it.
Q. We are all agreed that it does not apply to you?
A. Yes.
Q. Therefore, according to paragraph 7(d), it is only as far as you are now concerned, the NKF which was compelled to downgrade, because of the protests?
A. Yes.
Q. But you have also agreed with me, just two minutes ago, that your latest view of what the words meant is in paragraph 3 of your affidavit?
A. No, the paragraph 3 of the affidavit is what I felt.
Q. Yes, of course. That is right, your latest view of what the article meant is in paragraph 3?
A. I was talking about myself.
Q. You were not because in paragraph 3 you were also talking about the NKF. Look at it. Look at paragraphs 3(a) and 3(c) of your affidavit. You were telling us in your affidavit what you considered the words meant; right?
A. Yes.
Q. Covering both NKF and yourself; right?
A. Yes.
Q. Insofar as this portion is concerned, the downgrading, you only considered that it affected you, not NKF?
A. No, I think there is a mistake in this. It must have been.
Q. Come on, Mr Durai --
A. NKF and myself.
Q. No, I think we reach a point where it becomes very difficult to accept mistake as an answer to everything. This is a carefully considered affidavit; 'yes' or 'no'?
A. Yes.
Q. You read it carefully before you signed it?
A. Yes.
Q. Because it was going to represent your evidence-in-chief?
A. Yes.
Q. You believed that what you said was true?
A. Yes, but I made a mistake here.
Q. I have not come to that.
A. Yes.
Q. Then at paragraph 3 you use these words: 'It is the plaintiffs' case that these words are highly defamatory of both the charity and myself.' So you are thinking of both NKF and you?
A. Yes.
Q. 'The passages make a very specific allegation against the charity and myself in relation to what is specifically described as the new headquarters at KimKeat Road in 1995.'
Then you use these choice words:
'Any reasonable reader of the words would conclude that ... (b) I was shamed by the loud protestations ...' to downgrade. Whereas (a) and (c) talk about NKF and/or you. So you very carefully considered what at this point of time the article meant, and you very carefully explained that in subparagraphs to this court. True?
A. No, I did not include this.
Q. 'Yes' or 'no'?
A. I considered it, but I made an error in not including it here.
Q. You see, Mr Durai, it will help if you answer my questions?
A. Yes.
Q. You very carefully considered, indeed reconsidered the meaning of the words and took pains right upfront in your affidavit at paragraph 3 to remind his Honour what the words meant?
A. Yes.
Q. Yes? So it is a very critical paragraph?
A. It is a critical paragraph --
Q. It is the foundation of your entire claim?
A. In which I made an error in not including it.
Q. It is the foundation of your entire claim. Yes?
A. The foundation of my entire claim is the statement of claim.
Q. Yes, but this is the latest version and you are saying any reasonable reader would conclude that and then you are telling the court what you consider a reasonable reader would conclude; right? By implication, a reasonable reader would not conclude that the NKF was shamed, but only you, reading 3(b), please, only 3(b). Forget your mistake. Correct?
A. From what is written, it is so.
Q. Thank you. Therefore, I suggest to you that not only -- sorry, I suggest to you that for two reasons you never believed that the article carried the implication that NKF was shamed. First it is not even in your letter of demand and second it is not even in your affidavit?
A. I disagree with you. I put it in the statement of claim.
Q. You did not.
A. It is in the statement of claim.
Q. Thank you. If you took it from the statement of claim, the statement of claim says: 'NKF alternatively you.'So if indeed it was taken from the statement of claim, you deliberately and consciously dropped a reference to NKF which is in the statement of claim for the purposes of your affidavit; correct?
A. It is a mistake.
Q. No, did you --
A. I did not deliberately. I made -- I did not do it correctly.
Q. You see, Mr Durai, you have no case on that, even on your own evidence in this action; do you agree? Do you agree? Do you agree that having agreed with me that that part of the meaning does not concern you personally, and having regard to paragraph 3(b) of your affidavit of evidence, that is the end of that part of the case?
A. Yes.
Q. Now we come to the last part at paragraph 7(e). The last part of the meaning is -- go back to the statement of claim.
A. Yes, I have it.
Q. NKF had avoided providing SPH details or comments involving Mr Tan and the incident using the pretext; right?
A. Yes.
Q. That only concerns NKF?
A. Yes.
Q. Not you?
A. Yes.
Q. Therefore, Mr Durai, as far as you are concerned as the 2nd plaintiff, are you prepared to withdraw your claim, because I have dealt with and disposed of 7(a), (b), (c), (d) and you accept that (e) has nothing to do with you. Are you now prepared to tell his Honour that you are withdrawing your case as the 2nd plaintiff against SPH and Ms Long?
A. Your Honour, can I have an adjournment?
Q. I am asking you now to tell us, because you are not allowed to consult in cross-examination. Please tell us honestly, as a person who has given answers to questions these entire two days, whether you are now prepared, as the 2nd plaintiff, to withdraw your claim?
MR KHOO: Your Honour, the witness has said he wants consultation on this aspect. It is not with regard to his evidence. He wants to give instructions on this aspect.
MR SINGH: There is nothing to give instructions on, and any consultation will touch on his evidence, because by necessity, he will have to ask Mr Khoo whether as a result of his evidence, he should withdraw. And Mr Khoo will then be put in that difficult position of having todeal with the evidence, and I think it is not something he would want to do, but if he wants to, he takes a grave risk, and I do not think it is something that any lawyer would want.
MR KHOO: Your Honour, if my client wants to consult me, not on his testimony, but as to the question of whether he should withdraw, he should have the right to counsel on that.
MR SINGH: That misses the point. He cannot ask Mr Khoo about whether he should withdraw unless he also asks the corollary question, in view of my evidence, should I withdraw? Mr Khoo then is put in a position where he has to say, well, in view of this evidence, yes, or no, and therefore enter into a discussion of the evidence.
MR KHOO: No, there will be --
MR SINGH: The witness is a trained lawyer, has been a lawyer for 10 years, has been instrumental in driving this action, has given us answers on all the meanings, and all I ask for is a straight answer to a straight question.
MR KHOO: Your Honour, he is not in this court as a lawyer. He is not in this court as a lawyer; trained though he may be, he is entitled to legal counsel.
COURT: Yes, Mr Singh.
MR SINGH: He is not, your Honour, entitled to discuss hisevidence with his lawyer in the course of cross-examination, and if Mr Michael Khoo is prepared to say to this court that no part of the evidence will be discussed directly or indirectly, then he takes the risk, your Honour. But as I said, it is not a risk that any lawyer would want to take, given that this discussion cannot take place without an evaluation of the evidence and his answers. So I would ask your Honour, given the way this case has developed, that all I want is a straight answer from the witness as to whether in view of his evidence on all the meanings, he personally is prepared to do the honourable thing and withdraw the case.
COURT: Yes, Mr Durai.
A. In view of what has happened in this court, I would like to have an adjournment, talk to my colleagues.
MR SINGH: Your colleagues have nothing to do with this case. You are the plaintiff. You have sued personally.
A. Yes.
Q. In view of what has happened, would you please tell this court whether you are prepared to withdraw your action against the defendants. Please do not look at your lawyer or your colleagues.
A. No, I am not looking.
Q. Just answer the question, sir.
A. Yes, I would withdraw.
COURT: Take your time, take your time and think carefully before you answer this question.
MR KHOO: Your Honour, I think there must be this ability -- that he should be given access before he decides on whether to withdraw and not as to whether his evidence should be discussed. It is a question of, should I withdraw, what are the consequences? Nothing to do with his evidence, your Honour.
MR SINGH: I will be fair and I will tell the witness the consequences. Mr Durai --
MR KHOO: He is not giving advice to him.
MR SINGH: I am not, but I am explaining to the witness so that he understands, and if Mr Khoo thinks that I am misleading or I am not complete, Mr Khoo can add to it. Mr Durai --
MR KHOO: Your Honour, I leave it to you whether you would want him to be able to take legal advice before he gives an answer to your Honour.
COURT: Yes, carry on first.
MR SINGH: Thank you. Mr Durai, I see that you are on record as saying I will withdraw? A. No, I not say that.
Q. It is there, it is on the record. But his Honour has been fair to you, and has said, 'Please carefully consider'.
A. Yes.
Q. Mr Durai, the consequences are this. If you withdraw, you will expose yourself to a claim for costs because of the withdrawal, and the defendants will be entitled, as a matter of law, to costs unless His Honour rules otherwise.
If you do not withdraw, notwithstanding the state of play and your answers, then, to use a term used in defamation, you aggravate matters and your costs may go up to an indemnity basis. I want to be fair to you to tell you that that is how it might be played out going forward.
Having regard to the questions I have asked you and your answers, having regard to what I have told you about costs, and having regard to his Honour's very fair counsel about you thinking about it, please tell us what your answer is.
A. Your Honour, I will withdraw this claim.
MR SINGH: Thank you very much. Can I also ask clarification --
MR KHOO: That is what the witness has said, your Honour.
COURT: Do you have anything to say?
MR KHOO: Nothing because it is a statement made by him in the witness box. There is nothing else I can say to what he has said in the witness box.
MR SINGH: Thank you, your Honour. Would you also withdraw the claim by NKF?
A. Yes.
MR SINGH: Thank you very much. Your Honour, can we submit on the issue of costs tomorrow or would you like it today?
COURT: We will deal with the question of costs tomorrow.
MR SINGH: Thank you very much.
(The hearing adjourned until 2.30 pm on Wednesday, 13th July 2005)
