Thiruchelvasegaram v Mahadevi

Thiruchelvasegaram a/l Manickavasegar v Mahadevi a/p Nadchatiram

[2000] 5 MLJ 465

HIGH COURT (KUALA LUMPUR) — CIVIL SUITS NOS S2(S5)–23–04 OF 1997 AND S5–23–08 OF 1997

JAMES FOONG J

22 JANUARY 2000

Catchwords

Tort — Conspiracy —Conspiracy to defame —Allegation of incest —Agreement to conspire — Whether proved

Summary

The plaintiff and the defendant are both advocates and solicitors. The plaintiff is the brother-in-law of the defendant, having married the defendant’s eldest sister, Vijayalakshmi. The plaintiff has a daughter, Shanti. The plaintiff claimed that the defendant conspired with her brother (Jega), sister (Saraswathy) and Shanti to defame him. The sting of the defamation was incest by the plaintiff on Shanti. The defamation was said to be contained in: (1) the submission of the defendant to the judge in a civil suit filed by Vijayalakshmi against the defendant; (2) utterance in the court house when the court was not in session; (3) the letter written by Jega to Vijayalakshmi’s solicitor; (4) the letter from the defendant’s solicitors’ firm addressed to the plaintiff’s legal company; (5) remarks written by Shanti contained in an acknowledgement copy of the plaintiff’s letter; (6) the writing on the back of the last page of the serving copy of the writ; (7) the writing on the back of a letter of demand for an apology; and (8) statutory declaration made by Shanti. The plaintiff claimed that the words stated imputed him to be a person of low morals, who had committed the sexual crime of incest and has discredited him and exposed him to hatred, contempt and ridicule in the eyes of the right-thinking members of the society. The defendant pleaded, inter-alia, the defence of absolute and qualified privileged, justification and non-publication. After setting out the substantive defences, the defendant pleaded a general plea.

Holdings
Held:

(1) In a defamation suit, it is well settled that a defendant must expressly plead the particular defence he wishes to rely on against each specific charge of defamation with full particulars; ie the ground and fact on which it is based. The general plea of the defendant related to no particular and distinctive allegation in the statement of claim. The defences raised were not supported by any disclosed facts and grounds. By the defendant’s own admission, this paragraph was intended as a net to capture anything that had been overlooked. This is certainly unacceptable as it will confuse the plaintiffs and take him by surprise. If the defendant is displeased with the so called ‘messy’ pleadings of the plaintiff, she can avail herself of all the remedies provided under the rules and procedures as set out under the Rules of High Court 1980; certainly it cannot be reciprocated with this generalised form of pleading. For this, the court shall not entertain the defences raised in the general plea (see p 482G–H).

(2) After careful perusal of all the relevant evidence and having the opportunity to observe the demeanour of the witnesses, the court found that the claim of incest was not proved, even on the balance of probability (see p 483B–D).

(3) The submissions of the defendant, however defamatory they were of the plaintiff, are protected by absolute privilege. The court accepted the submission when tendered. When this happened, the statements contained in these documents must be considered to be made in the course of legal proceedings (see p 488C–E).

(4) Statements once made remain. When the court expunged them, it was only for the purpose of the court’s process and record. Other than this, the statements remain as statements made. Thus, the defendant’s assertion that since the offending parts of the submissions were expunged by the courts, no defamatory statements exist, was totally unacceptable and was a fallacy (see p 489C–D).

(5) The utterance in the court house when the court was not in session was scandalous based on the finding that there was no truth in the allegation of incest by the plaintiff. Further, the remark was actually uttered by the defendant. A defamatory statement made by counsel outside the court room, with reference to the proceedings, is not entitled to absolute privilege (see p 489D–E, G).

(6) By virtue of ss 5 and 6 of the Defamation Act 1957 in a slander to the plaintiff of his profession, there shall be no necessity for the plaintiff to prove that he has suffered damages. Here, the plaintiff is and was an advocate and solicitor, and the slander inflicted by the defendant on him was calculated to disparage him in his profession (see p 489H–I).

(7) Conspiracy is a cause of action on its own in tort to cover a situation where there is a combination of two or more persons who wilfully injure a man in his trade resulting in damage to him. This cause of action is separate and distinct from that of the tort of defamation which is governed by different factors. By the pleadings of the plaintiff, I am of the view that the allegation of defamation in the letter written by Jega to Vijayalakshmi’s solicitors is more for the tort of conspiracy rather than defamation (see p 490D–H).

(8) The court could not agree to the defendant’s explanation that the letter by the defendant’s solicitors’ firm addressed to the plaintiff’s legal company was to seek clarification. There was no request for clarification nor was there any subject matter that need to be clarified. The contents consisted of derogatory remarks, which had no truth in them. They imply that the plaintiff was a person of low morals, lustful and mean, and for this had exposed him to hatred, contempt and ridicule by the right-thinking members of society. Though the publication of the letter was to the plaintiff’s staff, the defendant was considered liable for defamation when such publication was to the plaintiff’s servant and/or agent (see pp 490I–491A, F).

(9) Though the defendant had clarified that the remarks were written by Shanti, the liability for publication arose from authorization. The defendant is and was the sole proprietor of the legal firm and Shanti was only a legal assistant — an employee of the defendant. By allowing a staff to write defamatory remarks on a document meant and intended for the firm, and approving them amounts to the proprietor of the firm making such statements. For this, the defendant must be held responsible (see pp 491H–492A).

(10) The defendant’s reliance on her assertion that the statement was written in her private office and thereafter placed in a sealed envelope marked ‘private and confidential’ was just not probable. As an advocate and solicitor, the defendant would be aware of the rules and procedures that require such an acknowledgement copy of serving writ to be exhibited to an affidavit of service. With such a practice, she would have known that there could be no confidentiality for this document. So it is most unlikely that she did what she claimed (see p 492C–E).

(11) The plaintiff had not satisfied the court that the defendant directed Shanti to affirm contents in the statutory declaration. Shanti is and was then an adult and a member of the Bar. The court did not think such a serious act as affirming a statutory declaration, Shanti could be forced into it. She must have done this, most probably in furtherance of the conspiracy brought about by inducement by the defendant and Jega. But the court was not convinced to charge the defendant for making this defamatory statement (see p 493F–G).

(12) After considering the evidence as a whole and particularly from the contents of the defamation and how they were executed, the court found the tort of conspiracy proved. The court detected a pattern of concerted actions by the defendant’s group to synchronise their attack on the plaintiff’s reputation and his profession. This is with the sole objective of forcing the plaintiff to influence his wife to compromise on the settlement of the estate property. Though the defendant had expressly denied any part in this scheme to injure the plaintiff in his profession, however the court found that she was and is in the thick and thin of the whole conspiracy as can be noticed by her actions in the carrying out these defamatory remarks in association and in conjunction with the others named. In conspiracy, the tort is committed as soon as the agreement with other conspirators is made, and it continues to be committed so long as the combination persists. The court concluded that the defendant was liable to the plaintiff under this cause of action of conspiracy (see p 494B–F).

(13) Since the slander in this case involved the plaintiff in his profession and imputed him to a crime punishable with a term of imprisonment, there was no necessity for the plaintiff to tender proof of special damages. Undoubtedly, the defamatory remarks by the defendant were of grave and serious nature. The defendant’s act in publishing such defamatory statements over a substantial period; and with malice, had certainly exposed the plaintiff to much hatred, contempt and ridicule by society. The mode of publication of the defamation, especially those on formal and legal documents were contemptuous. It showed the defendant’s total disrespect for the image, integrity and honour of legal profession of which she, herself is a member (see p 495A–B, D–G).

Lawyers
Gurbachan Singh (Malik Imtiaz Sarwar with him) (M Segaram & Co) for the plaintiff.

Lawyers
Mahadevi Nadchatiram (RS Sothi with her) (Mahadevi Nadchatiram & Partners) for the defendant.

Perunding Alam Bina Sdn Bhd v Errol Oh

[1999] 6 MLJ 101

Perunding Alam Bina Sdn Bhd v Errol Oh & Ors

HIGH COURT (KUALA LUMPUR) — SUIT NO S5–23–05 OF 1996

JAMES FOONG J

15 AUGUST 1998

Catchwords

Tort — Defamation — Imputation of unprofessionalism and negligence of architects — Objective test of reasonable man with ordinary intelligence and of general knowledge and experience in worldly affairs applied — Whether defence of justification can succeed — Whether dishonesty and malice proved — Whether public has legitimate right to comment — Whether comments were fair

Summary

The plaintiffs were the architects for plans to build a hospital. The plaintiffs claimed that they were defamed in two articles written and published by the defendants in the newspaper. The plaintiff averred that they were the persons referred to in the articles and, by their natural and ordinary meaning and/or by way of innuendo, it imputed that the plaintiffs were lackadaisical in their supervisory functions as consultant architects, had failed to give out proper instructions, were unethical, unprofessional, negligent, incompetent and were in breach of the architect’s professional code of conduct. As a result of the statements in the articles, the plaintiffs alleged that their credit and reputation were gravely injured and lowered in the estimation of right thinking members of society generally and had also suffered damages. The defendants admitted writing and publishing the articles but raised the defence of justification and fair comment. The issue before the court was whether the words complained of in the articles impute the plaintiffs of some quality which would be detrimental or adverse of such quality which was essential to successfully carry on their profession as architects.

Holdings
Held, dismissing the claim:

(1) To decide on the issue of imputation, the objective test of the reasonable man with ordinary intelligence and of general knowledge and experience in worldly affairs would likely to understand the alleged defamatory words without being fettered with strict legal rules of construction but may include any implications or inferences must be used. In the present case, the first article focused on the unprofessionalism of the architects, ethics and breach of it, safety measures and negligence. These were obviously elements associated with unprofessional conduct. By the natural and ordinary meaning of the words used, an ordinary reasonable person reading the statements would have the impression that the plaintiffs were unprofessional and unethical in their conduct. These statements were therefore defamatory (see pp 106H–107H).

(2) With regard to the second article, except for the paragraph which directly refers to the plaintiffs, the entire alleged defamatory statements relates to the developer. It did not impute the plaintiffs at all. Reading the article as a whole, the court did not believe that an ordinary reasonable man could impute the alleged defamatory statement to the plaintiffs (see p 111A–D).

(3) Though the defence pleaded justification, and even with particulars to certain facts being true, there was no disclosure as to what these facts alleged to be true impute. This particular imputation on the facts alleged to be true was nowhere stated in the statement of defence. Going by the rules of pleadings, where a party’s case must be confined to the four walls of its pleadings, the court found that the defendants’ alleged meaning imputed from the facts disclosed as true could not be accepted. There was no justification asserted that it imputed that the plaintiffs were unprofessional and incompetent in their work. For this, the plea of justification must fail (see p 108B–G).

(4) The articles principally were comments or opinions made by the defendant. Further, the exposure of non-compliance of building plans was certainly a matter of public interest. So was the role of the architects. Not only an honourable and respected profession serving the community was involved, but also the safety factor of structures constructed or to be constructed in this country. On this, the defendant, as a matter of the public had a legitimate right to comment and in the light of the situation, his comments on the conduct and ethics of the plaintiffs were fair. There was no dishonesty and malice on the part of the defendants nor were these ever proved (see p 110C–E).

Lim Kit Siang v Ling Liong Sik

Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors

[1997] 5 MLJ 523

HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NO S3–23–75–1993 CONSOLIDATED WITH CIVIL SUIT NO S2–22–520–1993

ZAINUN ALI JC

7 NOVEMBER 1996

Catchwords

Tort — Defamation — Libel — Whether actual words must be pleaded — Whether words attributed to first defendant capable of bearing defamatory meaning — Whether plaintiff has sufficient cause of action

Summary

The plaintiff, the leader of a political party, brought actions against the defendants. The first defendant was the leader of another political party while the second, third and fourth defendants were the editor, publisher and printer of a local daily newspaper respectively. The causes of action of both suits were based on a statement allegedly made by the first defendant in a speech which was later published by the second, third and fourth defendants. The alleged defamatory statements concerned funds collected by the plaintiff’s political party for the payment of quit rent of Bukit China in Melaka. The first defendant raised the preliminary issues of whether the words set out in the statement of claim were capable of bearing the defamatory meaning as alleged by the plaintiff and whether the statement as published could be defamatory in effect. The issues raised by the second, third and fourth defendants were whether the words published in both reports, read in their ordinary and natural meaning, were capable of being defamatory and whether the plaintiff’s allegations in his statement of claim disclosed a sufficient cause of action against them.

Holdings
Held, striking out the plaintiff’s application with costs:

(1) The alleged defamatory words as uttered must be reproduced in verbatim in the statement of claim and a certified translation must be tendered. To merely describe the substance, purpose or effect of the words was not sufficient. What was important was not the fact that the first defendant had used the defamatory expression but the fact of his having used those defamatory expressions as alleged. Since the alleged defamatory words as pleaded in the plaintiff’s statement of claim (even if it captured the essence of what the first defendant said) was based on the newspaper report and therefore the product of the reporter’s journalistic skills, the statement of claim did not disclose any cause of action against the first defendant (see pp 526D, H–I and 527D–E); Bruce v Odhams Press Ltd [1936] 1 KB 69, Harris v Warre (1879) 4 CPD 125, Workers’ Party v Tay Boon Too [1975] 1 MLJ 47 and Collins v Jones [1955] 2 All ER 145 followed.

(2) With regard to the second, third and fourth defendants, from an objective point of view, the two reports read as a whole did not appear to be capable of bearing any defamatory meaning and thus the statement of claim did not disclose a sufficient cause of action against them (see p 529B–D).

Per curiam

Even if there was a valid cause of action against the first defendant, the statement as reported fell short of being defamatory because there was no identification of the part of the statement which was alleged to be defamatory. Further, a statement is not defamatory merely because it caused damage to the plaintiff. It must either contain the defamatory allegation or the statement itself is false. The alleged statement considered in its natural and ordinary meaning was not capable of being defamatory as alleged and based upon the plaintiff’s answers in the interrogatories, could not be said to be untrue. Thus in the light of this, the plaintiff’s claim would also fail (see pp 527E, H–I and 528A–D); Astaire v Campling & Anor [1965] 3 All ER 666 followed.

Ling Liong Sik v Krishna Kumar

[2002] 2 MLJ 278

Dato’ Seri Dr Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam

HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NO S3(S2)–23–37 OF 2000

ARIFIN ZAKARIA J

9 FEBRUARY 2002

Catchwords

Civil Procedure — Particulars — Application for further and better particulars — Statement of claim and statement of defence — Particulars may be sought only of matters arising from pleadings — Exercise of court’s discretion — Particulars not to be granted of matters of evidence or inference drawn or substitute interrogatories — Whether court should allow application — Rules of the High Court 1980 O 18 r 12(3)

Legal Profession — Professional privilege — Communication between solicitor and client — Information on date and mode of client’s instructions — Privilege applicable to communication for purpose of seeking legal advice — Whether extends to matters observed by solicitors in the course of his retainer

Summary

The claim herein arose out of a letter written by the defendant to the plaintiff, which allegedly contained defamatory allegations (‘the letter’). The defendant claimed that he was at all material times acting for one Dato’ Soh Chee Wen (‘the client’). The contents of the letter were published in the newspapers. Arising from the respective pleadings, the parties applied for further and better particulars pursuant to O 18 r 12(3) of the Rules of the High Court 1980. The plaintiff applied for the following further and better particulars in respect of the amended defence: (a) under para 4, the date when the client left the jurisdiction, the circumstances and reasons why the client had left the jurisdiction and the present address of the client; (b) under paras 6(a) and 6(b), the date and mode of the instructions and the location of the client at the time of the alleged conversation and instructions; (c) under para 6(h), the client’s address and facsimile number to which the letter from the defendant’s office was transmitted and the date and mode of the client’s instruction to do so; (d) under para 6(1), the source of the alleged information or informant, the date of receipt of the alleged information and the position, status and relationship of Lee Chai Huat (‘LCH’) to the client. According to para 6(1) of the defence, the defendant had been informed that LCH had published the letter to the various newspapers. The defendant, on the other hand, applied for further and better particulars of the amended claim. In the plaintiff’s amended claim, the plaintiff pleaded that: (a) the letter was read by the plaintiff’s press secretary (‘OBS’) and the plaintiff’s senior private secretary (‘LLC’) (‘para 5.1(iva)’); (b) the defendant caused or otherwise facilitated the publication of the letter to various newspapers (‘para 5.1(v)’); (c) the defendant had caused or facilitated the publication of the letter on the Internet website of ‘Malaysiakini.com’ (‘para 5.1(vi)’); (d) the defendant, his agents and/or servants had spoken to reporters from various newspapers regarding the letter (‘para 5.1(vii)’); (e) the letter was sent and published in the press two days before the Malaysian Chinese Association’s annual general meeting (‘para 9(b)’); (f) the allegations in the letter were four years old and stale (‘para 9(g)’); and (g) the defendant had acted recklessly and without caring for the truth of the defamatory allegations in the letter or unverified instructions from the client who had fled the country to avoid investigations and charges by the relevant authorities (‘para 10(c)’). The particulars sought by the defendant were: (a) in respect of para 5.1(iva), particulars regarding the person who had allowed OBS and LLC to read the letter; (b) in respect of paras 5.1(v) and 5.1(vi), the time and place of each publication thereof, how and by what way the defendant was alleged to have caused or assisted in the publication of the letter and the identities of the persons to whom the letter had been circulated to and published; (c) in respect of para 5.1(vii), the reporters whom the defendant, his agents and servants had spoken to and the identities of the defendant’s agents and/or servants; (d) in respect of para 9(b), the person by and to whom the letter had been sent; (e) in respect of para 9(g), the person who had made the allegations four years ago; and (f) in respect of para 10(c), the charges that had been or would be brought against the client.

Holding
Held:

(1) The principles governing particulars were that particulars may only be sought of matters arising from the pleading and that the discretion was with the court as to whether to grant an order of particulars. In addition, particulars would not generally be ordered in respect of matters of evidence or inference drawn or substitute interrogatories (see pp 286H–287A).

(2) The particulars sought for by the plaintiff in respect of para 4 of the amended defence were matters of evidence for the defendant to adduce to show whether he had taken reasonable steps to verify the instructions of the client. The circumstances and reasons for the client’s absence from jurisdiction and the client’s present whereabouts did not have any relevance to the present action. Accordingly, the plaintiff’s application for particulars in respect of para 4 of the amended defence was rejected (see p 287F–G).

(3) The particulars sought for by the plaintiff in respect of paras 6(a) and 6(b) of the re-amended defence did not come within the ambit of legal and professional privilege as provided under s 126 of the Evidence Act 1950. The particulars sought for under those two paragraphs were relevant to the issue of verification of the truth of the letter of demand with the client. As such, the defendant was ordered to furnish to the plaintiff the particulars sought for thereunder (see pp 288G, 289C–D).

(4) In respect of the particulars sought for under para 6(h) of the re-amended defence, the defendant was prepared to give the address of the client’s office and the facsimile number to which the letter was transmitted. Legal professional privilege only extended to communications for the purpose of seeking legal advice. It was limited to the information for and the content of any legal advice but it did not extend to matters observed by the solicitors in the course of his retainer. Accordingly, legal professional privilege did not extend to the date and mode of the client’s instructions (see pp 289H, 290A–B).

(5) The particulars sought for in respect of para 6(1) of the re-amended defence were irrelevant to the issue herein and the question of how and from whom the defendant had obtained the information was a matter of evidence for the defendant to adduce at the trial (see p 290F–G).

(6) The particulars sought under para 5.1(iva) of the plaintiff’s claim did not arise out of matters pleaded but rather out of the defendant’s own averment. As such, the defendant’s application for particulars arising under para 5.1(iva) of the amended claim was disallowed (see p 291E–F).

(7) The defendant was not entitled to the particulars sought for under para 5.1(v) of the amended claim. In the re-amended defence, the defendant did not deny the publication in the newspapers except that he did not know that the letter or news feature in respect thereof would be published in the print or electronic media. From the pleadings, it was obvious when the publication had taken place and the defendant had admitted that he had written the letter. It was a matter of evidence as to how the letter got into the hand of the newspapers concerned and it was certainly not for the plaintiff to furnish the particulars thereof (see p 292A–B).

(8) In respect of the particulars sought under para 5.1(vi) of the plaintiff’s claim, the time and place of circulation were matters of evidence and therefore the plaintiff need not give the particulars. The defendant did not deny that he had written the letter, the only dispute was as to how the letter was published on ‘Malaysiakini.com’. Again, this was a matter of evidence. As such, the defendant’s application on matters arising under para 5.1(vi) was disallowed (see pp 293G, 294D).

(9) In so far as the plaintiff’s pleading in para 5.1(vii) related to the defendant’s agents or servants, the plaintiff properly ought to give particulars of the agents or servants and the reporters of the respective newspapers as it would be a difficult task for the defendant to prepare his defence without knowing who the relevant servants or agents were and the reporters to whom they were alleged to have spoken to (see p 294H–I).

(10) The particulars sought for in respect of para 9(b) of the plaintiff’s claim were irrelevant for the purpose of para 9(b) as the facts pleaded therein were only to support the plaintiff’s claim for exemplary damages (see p 295G–H).

(11) As for the particulars sought under para 9(g) of the amended claim, since the plaintiff had raised the matter in his pleading, it was fair that the plaintiff provide the particulars asked for to enable the defendant to prepare his case (see p 296C–D).

(12) The particulars sought by the defendant in respect of para 10(c) were highly relevant to the issue of the credibility of the client. If the client had in fact fled the country to avoid investigations, the defendant ought therefore to exercise more care in acting on the instructions of the client. This was relevant to the issue of whether the defendant had in the circumstances acted recklessly or without caring (see p 296H–I).

Ummi Hafilda v Karangkraf Sdn Bhd

[2000] 6 MLJ 532

Ummi Hafilda bte Ali & Anor v Karangkraf Sdn Bhd & Ors (No 2)

HIGH COURT (KUALA LUMPUR) — SUIT NO S2(S5)–23–38 OF 1999

KAMALANATHAN RATNAM J

31 MAY 2000

Catchwords

Tort — Defamation — Libel — Allegation of wedding reception of single woman and involvement in defaming Deputy Prime Minister — Attempt to stir hatred against plaintiffs — Deprivation of opportunity to court someone of the opposite sex — Re-publication of internet webpage, whether amounted to publication of defamatory statement — Test applied — Compensatory damages awarded — Whether exemplary damages ought to be awarded

Summary

The plaintiffs sued the defendants for publishing an article about them in Bacaria. Both plaintiffs played a key role as witnesses in the corruption trial against the former Deputy Prime Minister of Malaysia. The headline on the front page of Bacaria stated: ‘Ummi Hafilda NIKAH’. The article alleged that the first plaintiff had married one Khairuddin, which the second plaintiff maintained that the name referred to him. The article further alleged that the wedding reception had to be on a modest scale because it was not well received by the local folk because of the plaintiffs’ involvement in defaming the Deputy Prime Minister. The plaintiffs claimed that the article was untrue and false and thus had defamed them. Both plaintiffs claimed a sum of RM10m as general or compensatory damages and for exemplary damages. The defendants submitted that the impugned passages in the article were picked up from the Internet news and that by reporting such news the defendants had in fact shown the falsity of such news. Further it was submitted that whilst the headline read ‘Ummi Hafilda NIKAH’, yet the final passage on that same front page quoted the first plaintiff’s brother as denying that the first and second plaintiffs were married. Therefore it was urged to apply the balm of the brother’s denial to soothe the bane of the headline.

Holdings

Held:

(1) Whilst the words per se ‘she is married’ are not defamatory but when they are directed towards a single woman who upon the admitted knowledge of the defendants had her face on the front page of major newspapers and whose character and personality had been exposed in the newspapers as a star witness in the Anwar Ibrahim corruption trial, under such circumstances the innuendoes and inferences that an ordinary man in the street would draw from the headline and the subsequent passages would convey the meaning attributed to the words by the plaintiffs (see pp 539I–540A).

(2) The allegation that the plaintiffs had conspired to defame Dato’ Seri Anwar Ibrahim was a serious allegation and an attempt to stir the hatred of the villagers against the plaintiffs. If left uncorrected, this article would tend to cause a rift between the plaintiffs, their parents and the villagers. The allegation was an attempt to label the plaintiffs as liars and/or perjurers. It cast serious aspersions upon the conduct and character of both the plaintiffs (see p 541G–H).

(3) The passages in the article suggested that both the plaintiffs were married. This is an unfair statement to make, knowing full well that they were indeed not married. Such a statement had clearly deprived the chance of each of them being free to meet someone or to court someone of the opposite sex (see p 542F–G).

(4) The court accepted the plaintiffs’ submission that the impugned publications had injured their reputation and credibility. The publication when read by a fair minded and ordinary member of the public would hold the plaintiffs in odium and contempt (see p 542G–H).

(5) The defendants’ failure to produce the printed Internet webpage must be held against them. Alternatively their failure to produce the writer’s or journalist’s notes as the source of the articles must also be held against them. The journalist did not make any effort to ascertain the truth or otherwise from the plaintiffs themselves. In any case, even if there was a re-publication of the Internet webpage, this in itself is publication of the defamatory statement (see p 543A–C).

(6) Whilst the headline stated in black bold print ‘Ummi Hafilda NIKAH’, the defendants had juxtapositioned the words ‘Azwan Ali jelas status adik’ in white print embedded in a splash of black with ray-like edges to highlight what Azwan Ali had said. Had that juxtapositioned statement not been positioned as it had been, the court might have been persuaded to reject the first passage as having any defamatory connotation applying the bane and the balm principle. However, far from soothing the wound, the defendants had indeed exacerbated the hurt (see p 544B–C).

(7) The court was satisfied that this was a case where compensatory damages ought to be awarded against each of the defendants. Taking into consideration the fleeting appearance of both the plaintiffs in the limelight of publicity generated solely due to the Anwar Ibrahim corruption trial, the court awarded each of the plaintiffs a sum of RM25,000 against each of the defendants (see p 544D–E).

(8) The defendants were out to sensationalize the so-called marriage of the plaintiffs to sell their Bacaria. They must therefore pay. Therefore the court awarded each of the plaintiffs a further sum of RM25,000 against each of the defendants. However, the court found that this was not a case for exemplary damages. Whilst there was the element of gain in the form of profits by the sale of Bacaria, the plaintiffs had failed to show that there was such extensive profit as to warrant an award under this head (see p 544H–I).

JB Jeyaretnam vs Goh Chok Tong

JB JEYARETNAM v GOH CHOK TONG

[1985] 1 MLJ 334 (also [1984-1985] SLR 516)

OCJ SINGAPORE — SUIT NO 4474 OF 1981

THEAN J

28 NOVEMBER 1984

Catchwords

Defamation — Slander — Words published by defendant at press conference — Whether defamatory of plaintiff Fair comment — Qualified privilege — Damages and injunction — Defamation Act (Cap 32), s 5

Summary

The plaintiff, the secretary-general of the Workers’ Party in Singapore, was invited as the only guest speaker on September 21, 1981 at the inauguration of the Singapore Democratic Party. After his speech he left the meeting and at that time or immediately following his departure a large section of the audience also left. The Parliamentary by-election for the constituency of Anson was to be held on October 31, 1981. The defendant, the Minister for Defence and second Minister for Health in the Singapore Government, was the first organizing secretary of the Peoples’ Action Party and was therefore most concerned at securing the return of the PAP’s candidate at the by-election.

On October 26, 1981 the defendant held a press conference at which representatives of the media were present. He said:

“SDP had their inaugural (sic) earlier this month. Mr. Jeyaretnam attended. After Mr. Jeyaretnam had spoken, he left the hall, and when he left the hall 200 participants left with him. I believe the exodus was engineered. I don’t think it was a spontaneous exodus. If it was, it did not speak well for the SDP. It shows that the crowd, the limited crowd still look towards Mr. Jeyaretnam, for the time being, as a leader of the opposition. But I am inclined to believe that the exodus was contrived by the leader of the Workers’ Party to show who is boss at this stage. And surely Mr. Chiam cannot take that trick lightly.”

The plaintiff complained that these words were defamatory of him and he sued the defendant claiming damages and an injunction. The plaintiff also relied on section 5 of the Defamation Act, claiming that the words were calculated to disparage him in his office as leader of a political party and in aspiring to be a Member of Parliament.

The defendant denied that the words in their natural and ordinary meaning were calculated to disparage the plaintiff in his office as the secretary-general of the Workers’ Party. The defendant also raised the defences of fair comment and qualified privilege.

Holdings

Held: dismissing the claim:

(i) the words spoken by the defendant were capable of a defamatory meaning and were defamatory of the plaintiff. The words imputed to the plain tiff dishonourable or discreditable conduct or motive or a lack of integrity and such an imputation was defamatory of the plaintiff. However, the words though defamatory of the plaintiff were not calculated to disparage him in his office as the secretary-general of the Workers’ Party. They did not ipute any want of integrity or corrupt or dishonest conduct or any other misconduct in the discharge of that office. On this issue the plaintiff failed;

(ii) the defendant had succeeded in establishing the four elements necessary to find his defence of fair comment;

(iii) the plaintiff has failed to discharge his burden of proving that the defendant was actuated by malice when he uttered the words complained of. The action was accordingly dismissed with costs.

MGG Pillai vs Vincent Tan

MGG Pillai v Vincent Tan Chee Yioun & other appeals

COURT OF APPEAL (KUALA LUMPUR)
— CIVIL APPEAL NOS W–02–221–94, W–02–222–94 AND W–02–223–94
LAMIN PCA, GOPAL SRI RAM JCA AND ABU MANSOR JCA
[1995] 2 MLJ 493

22 MAY 1995

Catchwords

Tort — Defamation — Libel in magazine — Apology — Whether sufficient and unqualified apology — Whether merely conditional apology

Tort — Damages — Defamation — Apportionment of damages — Defendants severally liable — Whether damages may be awarded separately against each defendant — Defamation Act 1957 s 18

Evidence — Conspiracy — Whether must be proved only by direct evidence — Whether circumstantial evidence sufficient


Summary

The respondent, a well-known and successful businessman in Malaysia and internationally, brought an action against the appellants and other persons claiming damages for defamation and for conspiracy to defame. His complaint was in respect of a series of articles (‘the articles’) appearing in a magazine called Malaysian Industry(‘the magazine’). At all material times, the third appellant was its editor-in-chief, while the first appellant authored one of the articles complained of. The second and fourth appellants were the printer and publisher, respectively, of the magazine in question. Prior to the commencement of the action, the third and fourth appellants published an apology, without first sending a draft thereof to the respondent’s solicitors for approval, in a later issue of the magazine which, inter alia, stated that ‘we further apologize if the said articles tarnished the reputation of the [respondent]’. The writ in these proceedings was served on 28 February 1994. Amongst the appellants, only the second delivered a defence to the action. The court then made an order on 22 August 1994, pursuant to a summons for directions, setting the action down for trial which commenced on 10 October 1994. The trial then went on from day to day, even exceeding the period originally assigned to it, until its conclusion. After reserving judgment for a few days, the High Court judge found the appellants and the other defendants liable and awarded separate sums of general damages against them. [See [1995] 1 MLJ 39 .] The appellants then appealed to the Court of Appeal. At the appeal, counsel for the first and second appellants argued that: (a) the trial had proceeded with undue haste; (b) the damages claimed had not been proved; and (c) the award made by the trial judge was too high and out of line with the usual trend of awards for plaintiffs in defamation actions. Counsel for the third and fourth appellants contended that: (a) the trial judge was wrong in finding the third and fourth appellants liable; (b) the award made was too high; (c) the trial judge failed to take into account the apology published by the third and fourth appellants which should have reduced the award made against them; and (d) the trial judge erred in making separate awards against each app ellant.

Holdings
Held, dismissing the appeals:

(1) (Per Lamin PCA) Where a person’s character was being assailed and the facts were so fresh in everyone’s mind, justice could not have been better served than with the judge making an immediate assessment of the evidence and delivering his findings without delay.

(2) (Per Gopal Sri Ram JCA) A judge who had scheduled a case for a limited number of days was entitled to proceed beyond the period to complete the trial. Indeed, it was desirable that such a course be adopted in all cases. To avoid problems, inter alia, of recalling the evidence and exhibits, it was best that trials be proceeded with to their conclusion instead of being adjourned midstream.

(3) (Per Gopal Sri Ram JCA) The grant or refusal of an adjournment was a matter within the discretion of a judge and an appellate court ought not to interfere with such a decision unless it could be demonstrated that the refusal resulted in the deprivation of essential justice from an appellant. The only legitimate expectation which a plaintiff or a defendant had was that he would obtain justice according to law. Applying this principle, it was clear that the trial judge had acted correctly in directing the trial to proceed to completion, in handing down an early decision and in making available his written reasons shortly thereafter.

(4) (Per Gopal Sri Ram JCA) The contention that the trial judge was wrong in finding the third and fourth appellants liable was baseless considering that they had not delivered a defence. It was well-settled practice that a defendant who elected not to plead to a statement of claim in a libel action was confined only to challenging the measure of damages which the plaintiff ought to receive.

(5) (Per Gopal Sri Ram JCA) Libel is a tort actionable per se, ie without proof of actual harm. The law presumes that when a man’s reputation is assailed, some damage must result. While a claim for special damages must be specifically pleaded and proved, the claim by the respondent was only for general damages which need not be so pleaded and proved. Although the respondent was the only witness called to prove his case ,when considering the quality of evidence, each case depended upon its own facts. In the present case, the venom with which the respondent was attacked by the first appellant in his article coupled with the respondent’s status in society were sufficient indicia of the extent of harm suffered. The trial judge had correctly accepted the respondent’s evidence. Thus the argument that the damages claimed had not been proved could not succeed.

(6) (Per Gopal Sri Ram JCA) There are certainly no comparables as regards quantum of damages in libel actions in Malaysia unlike those which exist in personal injury cases. Thus it could not be argued that the award in the present case was out of line with the trend of damages usually awarded in libel actions.

(7) (Per Gopal Sri Ram JCA) In assessing damages, there is no basis for any judicial policy that is directed at awarding very low damages for defamation. Injury to a person’s reputation may occasion him at least as much, if not greater, harm than may injury to his or her physical self.

(8) (Per Gopal Sri Ram JCA) In appropriate cases, the profession or standing of a defendant in society is a relevant factor to take into account when a court considers what damages to award against a defendant. In the absence of any special or exceptional circumstances, it will be proper for a court to award substantial damages against a journalist who has, without any or any sufficient basis, taken a plea of justification. Further, the wider his readership or popularity, the greater should be the award.

(9) (Per Gopal Sri Ram JCA) A court is entitled and should have regard to the conduct of a defendant in a libel action. Such conduct will have a bearing on the making of an award for exemplary damages.

(10) (Per Gopal Sri Ram JCA) The second appellant expressly placed a plea of justification on record with no material in support. The first appellant, while he did not deliver a defence, conducted a cross-examination of the respondent on the footing that the facts appearing in his article were true. As damages multiplied when justification failed, and having regard to the facts of the case, the trial judge’s awards against the first and second appellants were neither excessive nor exorbitant. The Court of Appeal should not interfere with the exercise of the trial judge’s discretion upon a matter where opinions could, and did, vary quite widely. Similarly, the awards against the third and fourth appellants were not too high and should not be interfered with.

(11) (Per Gopal Sri Ram JCA) An apology, although not exonerating a defendant, has the effect of reducing the quantum of damages, in some cases substantially so. In the present case, the apology published by the third and fourth appellants was conditional and was not a full and frank withdrawal of the libel contained in the articles and neither was it a complete and unqualified apology or a fair retraction. Thus it could not be argued that the apology should have reduced the awards made against the third and fourth appellants.

(12) (Per Gopal Sri Ram JCA) The appellants together with the other defendants were sued and found liable as several and not as joint tortfeasors. Thus the trial judge could make separate awards against each appellant.

Per curiam:

(1) (Per Gopal Sri Ram JCA) A plaintiff in a libel action was not bound by O 19 r 7 of the Rules of the High Court 1980 to enter default judgment following the failure of a defendant to serve a defence. He was entitled to proceed and set the action down for hearing for the purpose of vindicating his reputation and to have damages assessed.

(2) (Per Gopal Sri Ram JCA) Conspiracy is a tort that is not always capable of proof by direct evidence. An agreement to do an unlawful act or a lawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. However, there must be proof and not mere conjecture.

(3) (Per Gopal Sri Ram JCA) While it is settled law and practice in libel actions tried with a jury that a judge does not give any direction or guidelines as to assessment of quantum of damages, actions for defamation in Malaysia are tried by a judge alone who is obliged to provide reasons for every decision which he hands down. Thus there is warrant to rely on guidelines for assessment of damages appearing in non-jury jurisdictions such as India and Singapore, although this is a matter upon which our courts must evolve their own criteria based upon our own values and conditions that prevail here.

(4) (Per Abu Mansor JCA) It is trite law that no special damage need be pleaded and proved if the defamatory matter speaks of a plaintiff in the way of his profession, office or calling and the plaintiff only claims general and not special damages.

(5) (Per Abu Mansor JCA) I think the court has to take a stand and deliver the message to all journalists and the media alike that they must act responsibly. They ought to know that they have a large following and that the reading public holds them in high esteem and has the tendency to accept what is written as gospel truth. They should, therefore, act with responsibility.

Lawyers

1. Karpal Singh (Karpal Singh & Co) for the appellant in Civil Appeal No W–02–221–94.
2. Karpal Singh (J Ramdhari with him) (KC Yap, Kamaludin & Partners) for the appellant in Civil Appeal No W–02–222–94.
3. Shamsul-Baharain (Chan Chong Choon with him) (Skrine & Co) for the appellant in Civil Appeal No W–02–223–94.
4. VK Lingam (W Satchithanadhan, V Sivaparanjothi and Adam Bachek with him) (Adam Bachek & Associates) for the respondent.

Read Gopal Sri Ram's full judgment here