DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO: B-02(NCVC)(W)-947-05/2014
ANTARA
1. MOHD BASHA BASKARAN
B. ABDULLAH
…PERAYU-PERAYU
2. LIM KIAN CHONG
3. LOO AH HOCK
4. HJ ROSLI BAKAR
5. HJ MOHD SHAHROM B. JAFFREE
6. NAZRI MOHAMAD
7. KUAN ENG KEONG
DAN
LIM CHIN SUN
…RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN
[BAHAGIAN SIVIL]
GUAMAN SIVIL NO.: 22NCVC-113-01/2012]
1) MOHD BASHA BASKARAN B. ABDULLAH
…PLAINTIF-PLAINTIF
2) LIM KIAN CHONG
3) LOO AH HOCK
4) HJ ROSLI BAKAR
1
5) HJ MOHD SHAHROM B. JAFFREE
6) NAZRI MOHAMAD
7) KUAN ENG KEONG
DAN
…DEPENDAN
LIM CHIN SUN
DI DENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO: B-02(NCVC)(W)-948-05/2014
ANTARA
1. ABD HALIM BIN ABD MAJID (OMT 1822TI)87
& 77 YANG LAIN
…PERAYU-PERAYU
DAN
NG SAY HOE
…RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO.: 22 NCVC-1233-10/2012
ANTARA
NG SAY HOE
…PLAINTIFF
2
DAN
1. ABD HALIM BIN ABD MAJID (OMT 1822T 1)
& 77 YANG LAIN
…DEFENDAN-DEFENDAN
DI DENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO: B-02(NCVC)(W)-949-05/2014
ANTARA
NG SAY HOE
…PERAYU
DAN
LIM CHIN SUN
…RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO.: 22 NCVC-112-01/2012
ANTARA
NG SAY HOE
…PLAINTIF
DAN
LIM CHIN SUN
…DEFENDAN
KORUM:
3
ABDUL AZIZ BIN ABD RAHIM, HMR
ROHANA BINTI YUSUF, HMR
PRASAD SANDOSHAM ABRAHAM, HMR
Decision Date: 17th February 2015
GROUNDS OF JUDGMENT
[1]
All these aforesaid appeals were heard together as they
involved a similar fact situation and bearing in mind all three appeals
were arising from a cause of action in defamation, involving the same
impugned letter. These appeals were disposed on 2nd February 2015.
For the purposes of this appeal, we shall refer to the parties as they
were described in the High Court.
FACTS COMMON TO ALL THREE APPEALS
[2]
Kelab Golf Sultan Abdul Aziz (KGSAS) is a proprietor Club
(the said Club). The proprietor owner of the said Club is Maddusalat
Berhad. The said Club’s facilities includes inter alia 27 holes USGA
class Golf course which was fully lighted. The plaintiff was appointed
Vice Captain of the competition, rules and handicap committee of the
said Club.
To manage and administer the said Club, Maddusalat
Berhad had entered into a Trust Deed dated 10/6/1993 with Maybank
Trustees Berhad. Under the said Trust Deed, Maybank Trustees were
the Trustees. The duties and Power of the Trustee are spelt out in
4
clauses (11) and (17) respectively in the Trust Deed. Under clause
(23) of the Trust Deed, Maddusalat Berhad and the Trustees must
ensure that a liaison council be established for the purposes of liaising
with the trustee with regards to any breach of the covenants in the Trust
Deed by Maddusalat Berhad; and according to the 4th Schedule in the
Trust Deed, the Liaison Council shall consist of 7 members as follows:
(a) Chairman to be elected by the members.
(b) A secretary to be appointed by members.
(c) 5 committee members to be appointed by members.
[3]
At the Annual General Meeting (AGM) held on the 8th day of August
2010, the validity of some of the proxies attending, became an issue.
Twenty five (25) members of the floor voted for the adjournment of the
AGM whilst thirteen (13) others voted otherwise. Upon the majority vote
the chairman adjourned the meeting and together with the 25 members
left the meeting room. The AGM was however continued by the 13 other
members which included the Plaintiff.
[4]
The said 13 members elected 8 members for the position of
members of the present liaison council replacing the previous liaison
council. The defendants had instructed their solicitors to issue a letter of
5
demand dated 14/12/2011, through their solicitors and published
defamatory words (as held by the learned judge) against the plaintiff. The
full text of the impugned letter is found in the grounds of judgment of the
learned Judge Puan Hadhariah Syed Ismail at page 13 in the appeal no.
948.
[5]
The aforesaid impugned letter and the imputations it contained
forms the basis of all three appeals. It is also to be noted that the
defendants herein and other defendants (130 of them) had filed a civil suit
22NCVC-417-04/2012 against the plaintiff and the liaison council for
breach of duty and or negligence on part of the plaintiff and the liaison
council but the said suit was struck out as being frivolous and vexatious
and the decision was affirmed by the Court of Appeal.
APPEAL IN B-02(NCVC)(W)-948-05/2014
[6]
In this appeal, the learned Judge sustained the claim of the plaintiff
for defamation and rejected the defendant’s plea for justification, fair
comment and privilege. We are of the view that the learned judge had
quite exhaustively dealt with the issue as to whether the impugned letter
was defamatory and found so and we have no reason to disagree with her
ladyship. The general burden of proof is on the plaintiff to show that the
impugned letter carried defamatory imputations as set out in the statement
6
of claim and the learned Judge should find as a fact the meaning
conveyed. In determining the meaning of the words, the Judge must
reflect and decide on the meaning conveyed. As this exercise would be
a finding of fact and law, the learned judge had aptly decided the issue at
pages 24 to 30 of her grounds and we find no reason to interfere. We
refer to the case of Chok Foo Choa @ Chok Kee Lian v The China
Press Bhd [1999] 1 MLJ pg 371, a decision of the Court of Appeal and
to the judgment of his Lordship Gopal Sri Ram (as he then was) and we
quote:
“It cannot, I think, be doubted that the first task of a court in an action for
defamation is to determine whether the words complained of are capable of
bearing a defamatory meaning. And it is beyond argument that this is in essence
a question of law that turns upon the construction of the words published. As
Lord Morris put it in Jones v Skelton [1963] 3 All ER 952 at p 958:
The ordinary and natural meaning of words may be either the literal meaning or
it may be an implied or inferred or an indirect meaning: any meaning that does
not require the support of extrinsic facts passing beyond general knowledge but
is a meaning which is capable of being detected in the language used can be a
part of the ordinary and natural meaning of words (see Lewis v Daily Telegraph
Ltd [1963] 2 All ER 151). The ordinary and natural meaning may therefore
include any implication or inference which a reasonable reader, guided not by
any special but only by general knowledge and not fettered by any strict legal
rules of construction, would draw from the words. The test of reasonableness
guides and directs the court in its function of deciding whether it is open to a jury
in any particular case to hold that reasonable persons would understand the
words complained of in a defamatory sense.
In my judgment, the test which is to be applied lies in the question: do the words
published in their natural and ordinary meaning impute to the plaintiff any
dishonourable or discreditable conduct or motives or a lack of integrity on his
part? If the question invites an affirmative response, then the words complained
7
of are defamatory. (See JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334.)
Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi Haji AbdulRahman Ya'kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393, collected and reviewed
the relevant authorities upon this branch of the subject and I would, with respect,
expressly approve the approach adopted by him.
The article in the present instance when read as a whole clearly suggests that
the appellant is a person who, under the guise of doing service, was in fact
making false statements in order to deceive the people of Lukut. The implication
is that the appellant is a man given to deception and is untrustworthy. I think that
there can be no doubt that to say of a man that he is a cheat and a liar is a
serious defamation of him. It has the effect of lowering the appellant in the
estimation of right-thinking members of society generally. It follows that the
learned judge in the present case clearly fell into error when he held that the
words complained of were not defamatory of the appellant.
Having decided whether the words complained of are capable of bearing a
defamatory meaning, the next step in the inquiry is for a court to ascertain whether
the words complained of are in fact defamatory. This is a question of fact dependent
upon the circumstances of the particular case. In England, libel actions are tried by
judge and jury and the question is left for the jury to determine. However, in this
country, libel actions are tried by a judge alone, he is the sole arbiter of questions
of law as well as questions of fact. He must, therefore, make the determination. In
the present instance, it is quite apparent that it is as a matter of pure fact that the
article defames the appellant. It literally calls him a cheat and a liar. There can, in
my opinion, be no dispute that the appellant was in fact libelled. I am, therefore,
unable to agree with the opposite conclusion arrived at by the learned judge who
tried the action.”
[7]
The appellant submits that the impugned letter is a letter of demand.
However a letter of demand issued by solicitors is based on the
8
defendants’ instructions and when reduced to writing constitutes the
defendants’ defamation of the plaintiff.
JUSTIFICATION
[8]
The defendants must first of all set out the defamatory statement in
the claim that is sought to be justified and must particularise the same to
support that meaning. The defence, the learned judge found, had not
sufficiently particularised the same to justify the sting of the defamation.
With the dismissal of the appellant’s suit in 22NCVC-417-04/2012 the
learned judge was correct in dismissing a plea for justification (see Abdul
Aziz bin Jelani & Anor v. Peter Chua Swee Lai [2000] 2 MLJ pg 462).
(See Evans on Defamation in Singapore and Malaysia Third Edition
at page 85 – 86).
QUALIFIED PRIVILEDGE / FAIR COMMENT
[9]
We are in agreement with the learned judge that the defence of fair
comment will not apply as the impugned letter contains assertion of facts
not comment or opinion. We refer to the case Tun Datuk Pattingi Haji
Abdul Rahman Yaakub v. Bre Sdn Bhd & Ors [1996] 1 MLJ pg 393 at
9
408, and we quote the judgment of his Lordship Richard Malanjum J (as
he then was) where he held:
“(3)
Regarding the defence of fair comment, the words complained of were
not capable of being comments. Alternatively, such words were not
made on a matter of public interest because the mere presence of the
plaintiff during nomination day was not a matter of public interest. Even
if such words qualified to be comments, such words were not fair in the
sense that a fair-minded person could not honestly make them without
having any basic facts to rely upon. Accordingly, on the balance of
probabilities the defence of fair comment failed (see pp 408H, 409E-G
and 410G); JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334, Lee
Kuan Yew v JB Jeyaretnam [1979] 1 MLJ 281, Telnikoff v Matusevitch
[1991] 4 All ER 817 and Abdul Rahman Talib v Seenivasagam & Anor
[1965] MLJ 142 followed; Odger v Mortimer (1873) 28 LT 472
distinguished.”
QUALIFIED PRIVILEDGE
[10] The learned judge had
dealt with the defence raised by the
appellant. We agree that for privilege to apply, the impugned letter must
be addressed to a person or body having jurisdiction or control over the
person whose conduct is impugned (see David Kuok Khoon Hin v Kuok
Khoon Hwong [2012] 3 MLJ pg. 581).
[11] The burden to prove the defence of qualified Privilege lies on the
defendants and the learned judge found (and we agree) the defendants
10
had failed to prove the same. In the light of the aforesaid, we dismissed
the appeal with costs and the order of the High Court was affirmed.
APPEALS IN B-02(NCVC)(W)-947-05/2014 AND B-02(NCVC)(W)-94905/2014
[12] In both these appeals, his Lordship Dato’ Suffian Razak J differed
from the findings of her Ladyship Hadariah J although the facts relied on
were the same and the impugned letter was also the same. His Lordship
in both these appeals dismissed the plaintiff’s claim with costs.
[13] In his grounds of judgment, the learned judge ruled at page 40 of
his judgment that malice must be explicitly pleaded in the statement of
claim and since the defendants had pleaded particulars of fair comment
and justification, it was incumbent upon the plaintiffs to file a statement of
reply particularising malice and since the plaintiffs failed to do so, this was
fatal and the plaintiffs suit should be dismissed (Ord. 78 rule 3(3) of the
Rules of Court 2012).
[14] Where the plaintiffs allege that the defendants maliciously published
the impugned statement, then particulars are not necessary as malice is
presumed, however if malice is being used to thwart a plea of qualified
privilege/and or fair comment, then if it is already specifically pleaded in
11
the statement of claim there would be no need to file a statement of reply.
We refer to the decision of the Federal Court in Luk Kai Lam v. Sim Ai
Leng [1978] 1 MLJ pg. 214, and to the holding of the court and we quote:
“(3) Where it is necessary for the plaintiff to prove that the defendant
was actuated by an improper motive he need not specifically allege
malice in his reply if he has already done so in his statement of
claim or if the defendant in his defence has pleaded that he acted
in good faith. If the plaintiff has already alleged malice in his
statement of claim the proviso to Order 19 rule 22 does not come
into play.”
Looking at paras (8, 9, and 10 of the statement of claim Rekod Rayuan
Bahagian A Jilid 1 pg. 33), it is our view that the same have been
sufficiently particularized, the learned judge therefore erred in finding that
the impugned letter was devoid of malice. It is the instructions rendered
to the solicitors who drafted the said letter of demand based on those
instructions that come under the microscope. We are therefore of the view
that the treatment of the learned Judge on the issue of malice and
particulars of the same was in error.
[15] Turning to the defence of justification, we had dealt with this defence
at length in our earlier part of this judgment in respect of appeal No. 948.
The learned judge in dealing with the issue of justification, placed the
burden on the defendants and found that the defendants’ allegations had
12
been particularised, however the learned judge failed to make a finding
that the facts averred in the particulars had been proved by the
respondent justifying the sting of the defamation (see Tun Datuk Patinggi
Abdul Rahman Yaakub v Bre Sdn Bhd [1996] 1 MLJ pg 393). Nowhere
in the judgment of the learned judge, had the learned judge made a finding
that the particulars of justification had been proved and the learned judge
was in error in finding a defence of justification had been made out.
[16] As to the defence of fair comment, the learned judge again fell into
error in failing to make a finding as to whether the impugned letter was a
statement of fact or comment. The learned judge failed to look at the four
corners of the impugned letter to determine the same. The learned judge
erred in law which warrants appellate intervention.
[17] As to the defence of qualified privilege, the learned judge found as
there was an absence of malice on part of the respondent, the defence of
qualified privilege should be sustained.
The learned judge made a
passing reference to the interest of the members and general public good.
We have dealt with this head of defence in our judgment. However we
would add that mere public or general interest in matters raised by the
impugned letter is not enough to found a defence of qualified privilege.
The impugned letter does not raise matters that effect the public at large.
13
In our present case only members of the Golf Club would be interested to
receive the publication. Whilst there might be an interest in news about
alleged wrong doing or condemnations concerning the plaintiff as being
part of the liaison council, which would attract the interest of the Malaysian
public being instinctively drawn to such news, the receiving public would
remain sectional. Most certainly non golf playing members of the public
would not be concerned. We refer to the decision of the Court of Appeal
Singapore and to the judgment of LP Thean JJA in Aaron and Others v.
Cheong Yip Seng and Others and Chen Cheng and another v. Central
Christian Church and other appeals [2000] 2 LRC pg. 62 and we quote:
“(4)
In order to establish a defence of qualified privilege, it had to be shown
that the maker of the comment had a legal, social or moral duty to publish
it to another person who had a corresponding interest to receive it. This
reciprocity was an essential element of the defence. In the instant case
the publication by Impact fulfilled the requirements for the defence.
Impact had the requisite duty to publish comments on the plaintiffs as it
was a publication of the evangelical community and circulated amongst
the members of that community. Therefore its general readership had
the necessary requisite interest. The mere fact that persons who were
not members of that community may have had access to Impact did not
ipso facto destroy the privilege. That the defamatory matter was
communicated to persons who had no legitimate interest in the subject
matter did not necessarily avoid the privilege. With respect to TNP and
Wanbao, while the mass media had a right to make fair comment on a
matter of public interest or a professional duty amongst journalists and
editors to report on matters of public interest, such were insufficient to
constitute the requisite duty of the commentator for the purposes of the
defence of fair comment. Generally qualified privilege was only available
14
to newspapers on the same terms as to any other person. Privilege for
publication in the press of information of general public interest was
confined to cases where the defendant had a legal, social or moral duty
to communicate it to the general public. Therefore the duty would not
arise simply because the information appeared to be of legitimate public
interest. The duty to communicate had also to be met with the
corresponding interest of the readership to receive that information. It
followed that TNP and Wanbao could not show that they had the
required duty to publish their articles on CCC solely on the basis that
CCC's activities were a matter of public interest and that it was their duty
to report on such matters of interest. The burden of proving the existence
of circumstances that gave rise to a duty had not been discharged by the
defendants. While it was unclear what 'special facts' had to be shown in
order for a newspaper publication to succeed on the defence of qualified
privilege, the requisite standard or test for such 'special facts' was an
onerous one”
and to the case of Sarawak Times Ltd & Ors v Tan Too Yam [1960 –
1963] SLR pg. 221 (CA) and to the judgment of John Ainley CJ at pg. 225
and we quote:
“Upon the assumption that there was here a privileged occasion I
consider that the learned judge was correct in fact and in law in finding
for the respondent. It is then not really necessary to go into the question
whether there was in this case a privileged occasion.
My learned
brothers have however expressed views on this question, and I wish to
say with all respect to the careful reasoning of the trial judge, that I
cannot see in this case proper grounds for holding that the occasion was
privileged. I approach the matter by asking first whether the Association
have any duty or interest to publish to the public at large items of
information about the misconduct of their officers. The Association may
15
well have duty to keep their members informed of the decisions of their
various committees, the Association may possible have a duty to inform
their members of the action their committees propose to take relative to
their officers. The public at large may in one sense be interested in the
affairs of a fairly extensive Association such as this, but it seems to me
quite impossible to say that the Association has any duty to broadcast in
the public press their suspicious or condemnations of their officers. Then
did the notice of the respondent change the situation? I cannot see that
the notice did so. It was said by the Vice Chairman that the notice
reflected in some way on the Association. The learned judge also took
a similar view of the notice, but I am unable to see in what way the notice
put the Association on the defensive. The Association might reasonably
have felt that their members should know what was going on, but it was,
I think, quite unreasonable for them to suppose that they had been
attacked in the press in a manner which called for public defence. In my
opinion no occasion of qualified privilege was made out in this case, and
the respondent was entitled to succeed without proof of express malice.
Be that at it may he has succeeded, and the conclusion of the learned
trial judge was correct.”
[18] It is rather disquieting that the respondents had instructed their
solicitors to send the impugned letter to the appellants and not to the other
members of the liaison council. The plaintiff was in charge of competition
handicap rules and not really a main decision maker in the liaison council.
Whilst we accept that the concept of qualified privilege is an absolute
defence but if the bounds of that privilege is exceeded, then the cudgel of
defamation and the pain of damages will ensue. We find the learned judge
16
erred in holding that the defence of qualified privilege applies on the facts
of this appeal.
[19] On the upshot, appeal in B-02(NCVC)(W)-948-05/2014 is dismissed
with costs and the order of the High Court affirmed. Appeals in B02(NCVC)(W)-947-05/2014 and B-02(NCVC)(W)-949-05/2014, is allowed
with costs and the order of the High Court set aside.
Dated: 18th November 2015
Signed
[DATUK DR. PRASAD SANDOSHAM ABRAHAM]
Judge
Court of Appeal Malaysia
Putrajaya
Counsel for Appellants
B-02(NCVC)(W)-947-05/2014
B-02(NCVC)(W)-949-05/2014
17
S. Seenivasagam
A. Ravikumar
…Messrs Azariah & Associates
Counsel for Respondent
B-02(NCVC)(W)-947-05/2014
B-02(NCVC)(W)-949-05/2014
Walter Pereira
T. Geetha
…Messrs Kamarudin & Partners
Counsel for Appellant
B-02(NCVC)(W)-948-05/2014
Walter Pereira
T. Geetha
…Messrs Kamarudin & Partners
Counsel for Respondent
B-02(NCVC)(W)-948-05/2014
S. Ravichandran
…Messrs Seah Balan Ravi & Co
Cases Referred To:
1)
Abdul Aziz bin Jelani & Anor v. Peter Chua Swee Lai [2000] 2 MLJ
pg 462 (referred)
2)
Chok Foo Choa @ Chok Kee Lian v The China Press Bhd [1999] 1
MLJ pg 371 (referred)
3)
David Kuok Khoon Hin v Kuok Khoon Hwong [2012] 3 MLJ pg. 581
(referred)
4)
Luk Kai Lam v. Sim Ai Leng [1978] 1 MLJ pg. 214(followed)
18
5)
Tun Datuk Patinggi Abdul Rahman Yaakub v Bre Sdn Bhd [1996] 1
MLJ pg 393 (followed)
6)
Aaron and Others v. Cheong Yip Seng and Others [1996] 4 LRC 315
(referred)
7)
Chen Cheng and another v. Central Christian Church and other
[2000] 2 LRC pg. 62 (referred)
8)
Sarawak Times Ltd & Ors v Tan Too Yam [1960 – 1963] SLR pg. 221
(CA) (followed)
Legislation Referred To:
1) Ord. 78 rule 3(3) of the Rules of Court 2012.
2) Evan on Defamation in Singapore and Malaysia Third Edition
19