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DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DALAM NEGERI JOHOR, MALAYSIA
GUAMAN SIVIL NO. 22-820-2004
ANTARA
DAIRY FARM GIANT PROPERTIES SDN BHD
…
DAN
1.
2.
3.
PLAINTIF
Y.Y. NET LINK SDN BHD
HAYATI BTE MOHAMAD
ADAMS YONG FAH NGIAN
…
DEFENDAN-DEFENDAN
DIMAHKAMAH TERBUKA
DI HADAPAN YA PUAN SUPANG LIAN
PESURUHJAYA KEHAKIMAN
JUDGMENT
Introduction
[1] The plaintiff is part of the Dairy Farm Group of Companies and a
wholly owned subsidiary of Giant-TMC Berhad. Giant-TMC Berhad is
ultimately owned by Dairy Farm International Holdings Limited, which is
part of the Jardine Matheson Group. The plaintiff invests in and
manages properties for the Giant Group of Companies, including
sourcing sites, building retail hypermarket complexes thereon and
managing and renting out the same.
[2] The 1st defendant is part of the YY Group of Companies, which
also includes 2 other companies known as YY Capital Sdn Bhd and YY
Heritage Sdn Bhd. The 2nd defendant is the Managing Director of the 1st
defendant, whereas the 3rd defendant at the material time was the Chief
Executive Officer of the YY Group of Companies.
[3] In the year 2002 the plaintiff was looking for a site in Melaka to
open a Giant hypermarket. The plaintiff and the defendants became
associated and that led to the defendants proposing a site at Batu
Berendam, Melaka for the purpose. The parties are at odds as to when
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and how they first became associated. PW1 said that it was the 3rd
defendant (DW2) that had some time in mid June of 2002 called him and
introduced himself. Subsequently at the end of that month DW2 came to
the Giant Shah Alam head office to give a briefing on development in
Melaka. The 2nd defendant (DW1) on the other hand said that she and
DW2 met PW1 over dinner at the Pan Pacific Glenmarie Hotel, Subang
Jaya in May of 2002 and the idea of opening a Giant hypermarket in
Melaka was broached.
[4] Whatever might have been the case; PW1 and DW1 in their
evidence agree it was only at a meeting on 27.7.2002 that the plaintiff
had formally confirmed its intention of opening a hypermarket in Melaka.
They agreed too that it was from that date that the parties engaged in
formal negotiations on the proposed lease by the plaintiff of the premises
at the existing Senyum site, Batu Berendam, Melaka. However,
ultimately, no agreement was signed and the deal was not concluded.
In March 2003, the plaintiff terminated the negotiations between the
parties. On May 10, 2003, the 1st defendant filed a suit against the
plaintiff in the Melaka High Court for breach of contract. This suit is still
pending.
The 3 Letters
[5] Nearly 10 months after the filing of the suit, the 2nd defendant
issued and signed 2 letters both dated 5th March 2004. Both letters were
on the letterhead of the 1st Defendant, YY Capital Sdn Bhd and YY
Heritage Sdn Bhd and both addressed to the persons as follows :
(i)
(ii)
(iii)
The Honourable Prime Minister of Malaysia;
The President of the Dewan Perniagaan Melayu Malaysia,
and
The President of the Malaysian Retailers Association.
Both letters were copied to the following persons, namely :
(a)
(b)
(c)
[6]
His Excellency the High Commissioner of Britain;
His Excellency the High Commissioner of Singapore; and
Mr Michael Kok of Dairy Farm International Pte Ltd,
Singapore.
The 1st letter is in the Malay language and it reads thus :
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“PERKARA: DAIRY FARM INTERNATIONAL – SOUTH ASIA
REGION
DAIRY FARM GIANT PROPERTIES SDN BHD
--------------------------------------------------------------------------Adalah kami dengan segala hormatnya merujuk kepada perkara yang
tersebut di atas.
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[7] The 2nd letter is a translation in English of the 1st letter and it reads
thus :
Kami merayu kepada YAB Perdana Menteri, Pihak Berkuasa dan
Badan Profesional untuk membantu syarikat kami dan mendedahkan
aktiviti perniagaan yang tidak berprinsip dan tidak beretika yang
dilakukan oleh syarikat besar multinational yang dimiliki oleh keluarga
Keswick dari United Kingdom.
Untuk makluman YAB, pihak kami telah dilantik dan dimaklumkan
melalui surat (seperti di lampiran) untuk bekerjasama dengan syarikat
Giant dalam membangunkan beberapa buah bangunan dan
perniagaan Giant di seluruh Malaysia. Kami juga menyertakan satu
salinan Surat Kuasa daripada syarikat Giant yang bersetuju dengan
dua (2) tapak lokasi projek di Melaka. Kami adalah seratus (100)
peratus syarikat Bumiputera dan merasa bahawa syarikat Giant tidak
ikhlas untuk membantu syarikat Bumiputera seperti kami. Demi
Agama, Bangsa dan Negara pihak kami telah diperalatkan oleh
syarikat tersebut.
Kami juga mendapat tahu bahawa syarikat Giant telah memberi
kebenaran kepada seorang pengarah mereka yang berkerakyatan
Singapura untuk mengadakan perbincangan dan rundingan tanpa
memiliki pas penggajian yang sah pada masa itu.
Kami merasa bersyukur kerana di bawah Pentadbiran YAB Perdana
Menteri Malaysia yang amat menekankan kepada Amalan Ketulusan
dan Keadilan dalam segala aspek urusan. Sehubungan dengan itu
pihak kami memohon jasa baik YAB untuk mendapatkan sokongan
dan kerjasama YAB agar syarikat Giant ini tidak mengeksploitasikan
rakyat Malaysia lebih-lebih lagi Bumiputera seperti kami.”
“SUBJECT : DAIRY FARM INTERNATIONAL – SOUTH ASIA
REGION
DAIRY FARM GIANT PROPERTIES SDN BHD
------------------------------------------------------------------------With reference to the above, we write to appeal to our Honourable
Prime Minister and relevant Authorities and professional Bodies to
intercede on our behalf in exposing the unscrupulous and unethical
Business Conduct of big multinational company owned by the
Keswick families from the United Kingdom.
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We were appointed and written to (see letters attached) to work with
Giant in the development of their stores throughout Malaysia. We
forward herewith Giant Letter of Authorisation for two (2) sites in
Melaka. We are a 100 percent Bumiputera owned company and we
feel exploited by this so called big foreign company. We were misled
to believe that Giant were sincere to assist Bumiputera Entrepreneur.
We were also informed that the Company had authorized one of the
Singaporean Director to enter into discussion and negotiation without
a valid work permit at that point of time.
We feel confident that under the administration of our Prime Minister
who insist on integrity, transparency and fairness, we seek the
support of your good office to ensure that Giant is not exploiting
Malaysian more so a Bumiputera for their own benefits.”
[8] A month later, the 3rd defendant issued and signed a letter dated 6
April 2004 on the letterhead of the 1st Defendant, YY Capital Sdn Bhd
and YY Heritage Sdn Bhd. This letter was addressed to the Honourable
Prime Minister of Singapore Mr. Goh Chok Tong and it reads thus :
“REF : DAIRY FARM SINGAPORE INTERNATIONAL PTE LTD
We humbly take the courage and initative to write to your good office
to seek assistance and appeal for HELP in an event that we felt
deeply exploited, humiliated and embarassed by the abovenamed
HUGH MULTINATIONAL COMPANY.
We further write to express deep regrets by the actions/inactions of
the First Secretary (Commerce) of the Singapore High Commission in
Malaysia.
SIR,
We forward a copy of our letter to our Malaysian Prime Minister for
your attention and we seek recourse that Dairy Farm International Pte
Ltd had through its subsidiary in Malaysia, had used and made used
of Ms Hayati Bte Mohamad (see letters) for the purpose to getting a
hypermarket trade licence, BUT ABORTED WHEN THE
ACQUISITION OF THE TOPS STORES WAS COMPLETED by them.
We further wish to inform that Encik Mohd Ismail Bin Ahmad, passport
no. S0065491D had at that moment of time working at the Malaysian
office without a valid work permit, but subsequently applied for one
only in June 2002.
SIR,
We met the FIRST SECRETARY at her office on the 24th March at
2.00 pm, but were informed that our original letter to HIS
EXCELLENCY DATED 5th MARCH AND ENDORSED RECEIPT 8th
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MARCH WAS NOT RECEIVED BY HER. We would like to quote and
unquote some of her statements during our discussions :a. “That work permit is a non issue for any Singaporean representing
a Malaysian company to enter into an agreement or contract with
local companies.”
b. “That for her to make an enquiry to Dairy Farm Singapore on the
issue will make them laugh at her.”
c. “That she has extensive network among the Embassies and PMO
Department and could ascertain their response and the
authenticity if we did mail to the relevant addresses.”
SIR,
We appeal to AUTHORITIES because we are unable to voice our
concern agains a hugh multinational company. Much like David
Versus Goliath.
We appeal to AUTHORITIES that aside legal rights, we believe that
MR PRIME MINISTER share our natural justice in terms of moral
rights, code of ethics and business integrity.
We are at your liberty sir and be most humbled by your advise or
instructions. But we feel good that the highest authority has been
informed regardless. That’s being hope and faith.”
[9] By this 3rd letter the 3rd defendant had enclosed the 2nd letter
referred to above. This 3rd letter of the 3rd defendant was copied to the
following persons :
(a)
(b)
(c)
(d)
His Excellency the High Commissioner of Singapore;
The First Secretary (Commercial) of the Singapore High
Commission;
Mr Michael Kok of Dairy Farm Singapore; and
Mr Simon Keswick of Dairy Farm Singapore.
[10] By 2 letters dated 6 April 2004 issued by the plaintiff’s solicitors to
the 1st defendant and the 2nd defendant respectively, the plaintiff
demanded an apology from each of the defendants in respect of the
publication of the letters. However, the 1st and 2nd defendants refused
to apologize to the plaintiff.
The Plaintiff’s Claim
[11] Following from the publication of the letters, the plaintiff filed this
action in defamation against the defendants jointly and severally for :
a.
General damages;
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b.
c.
d.
e.
Exemplary damages;
interest on the damages at 8% p.a. from 5 march 2004 or
from such other date as the court deems fit;
an injunction restraining the defendants and each of them
from repeating, publishing or causing to be published the
words complained of or similar words defamatory of the
plaintiff and
costs.
[12] It is the case for the plaintiff that the words contained in the 1st, 2nd
and 3rd letters in their natural and ordinary meaning were defamatory of
the plaintiff and they meant and were understood to mean :
(i)
that the plaintiff conducts its business in an unlawful,
unscrupulous, unethical, improper and/or dishonest manner;
(ii)
that the plaintiff misleads, exploits and cheats local
companies, and in particular Bumiputra-owned companies;
(iii)
that the plaintiff conducts its business without integrity,
transparency and fairness; and
(iv)
that the plaintiff had authorized a person without a valid work
permit to act on its behalf and had contravened the
immigration laws of Malaysia.
[13] The plaintiff contends that the words of the 3 letters above were
calculated to injure the plaintiff’s trading and business reputation and
goodwill, and did in fact injure the plaintiff’s trading and business
reputation and goodwill.
The Defence
[14] All 3 defendants by their joint Statement of Defence filed on June
10, 2004 admit writing and publishing the 3 letters in the manner alleged
by the plaintiff. The defence pleaded is to be found in paragraph 5 of the
Defence which reads as follows :
“Merujuk Para 10, 11, 12 dan 13 Pernyataan Tuntutan,
Defendan-defendan menyatakan kata-kata yang dirujuk
Plaintif tersebut di dalam makna biasa dan semulajadinya
adalah benar pada isi (substance) dan faktanya. …”
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Hence, the pleaded defence is that the imputations alleged by the
plaintiff are substantially true which is a plea of justification.
The Issues
[15] Pursuant to the Deputy Registrar’s directions given on 8 December
2009, the trial before me was to be confined to the issue of liability. As
such, the trial proceeded on the basis of determining liability only and
not the reliefs sought. In determining liability, the issues for the Court
are as follows :
(a)
(b)
(c)
(d)
whether the defendants published the words complained of
to a third party;
whether the words complained of are published of the
plaintiff;
whether the words complained of in their natural and
ordinary meaning are defamatory of the plaintiff; and
whether the defendants are entitled to the defence raised.
No Documentary Evidence before the Court ?
[16] Before proceeding to consider the substantive issues, it is
necessary to address a point of law raised in the submission of Mr.
Govindarajoo, learned counsel for the 1st and 2nd defendants. He argues
that there is no documentary evidence before the court for consideration
of the claim for defamation. Specifically, the contention is that the letters
of 5 March 2004 were never marked as exhibits and not even placed in
the agreed bundle of documents or disputed bundle but merely put in the
common bundle of documents. As such, the said letters were not
formally proved.
[17] With respect, I think this is completely missing the point altogether
concerning documentary evidence placed in the agreed bundles. All 3
letters were placed in a bundle of documents described by the parties as
the Common Bundle (Part A, B and C). This common bundle was
tendered before the Deputy Registrar during PTCM and given the
marking as Bundle D. Although the description of the bundle says it is
Part A, B and C, the index indicates that all the documents therein are in
fact what are referred to as Part B documents. The parties have agreed
that the authenticity of the documents in Part B is not disputed. The 3
letters that are found in Bundle D were each especially referred to PW1
in his witness statement (Bundle I) which constituted his evidence-inchief and also referred to him during cross-examination. The 3 letters
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were similarly specifically referred to the 2nd defendant (DW1) in her
witness statement (Bundle J) and also during her cross-examination.
Moreover, the 3rd letter (at page 222-223 of Bundle D) was referred to
the 3rd defendant (DW2) during his cross-examination.
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“It goes without saying that either or any of the parties to any particular civil
case can effectively object to the inclusion of any document in an agreed
bundle of documents, and further he is at liberty to impose conditions upon
which any particular document is included therein, if he agrees in the first
place to such inclusion.
[18] The evidentiary value of a document in an agreed bundle and the
effect of referring to a document therein was considered by the Supreme
Court in Jaafar Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ
693. Peh Swee Chin FCJ stated at pp 706-707 :
In the absence of any express conditions regarding the inclusion of any of the
documents in the agreed bundle of documents, speaking for myself, I have
always taken the agreed bundle in a civil case to mean as follows without
meeting any contradiction or any serious contradiction from any member of
the Bar or any appellate court in my decades at the Bar or on the Bench.
First and foremost, the agreed bundle of documents means that the
documents therein are authentic and they do exist, therefore they require no
proof of their authenticity by calling eg, their makers.
Secondly, the truth of contents of any of the documents in the agreed bundle
of documents is always not admitted unless the contrary is indicated directly
or indirectly and such truth of such contents is liable to be challenged in court
at the instance of either of the parties.
Thirdly, such documents therein do not form automatically a part of the
evidence of the case in question ipso facto, but any of such documents does
become part of such evidence if it is read or referred to by either of the
parties, wholly or partly, at length or in a briefest of mention, either in
examination of any witness, in submission at any stage or even on any
unilateral drawing of court's attention to it by either of the parties at any time
before the conclusion of the case.” (emphasis added)
[19] Following from what is stated above, it is in my opinion completely
wrong in law to say that the 3 letters in our present case were not put in
evidence. In the first place, the 3 letters were tendered as evidence by
the act of the parties including them in the bundle of documents that is
produced to the court and given the marking Bundle D. Secondly, the
parties have agreed to the authenticity of the documents in Bundle D
(which would include the 3 letters) and it was no longer necessary to call
the maker to prove authenticity. Thirdly, all 3 letters in Bundle D were
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referred to PW1 and DW1 during examination-in-chief and crossexamination. In addition, the 3rd letter was referred to the 3rd defendant
during his cross-examination. As such, the letters have well and truly
become part of the evidence in this case.
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[21] Consequently, the 1st and 2nd defendants’ reliance on Yap Choo
Hoo v Tahir bin Yassin [1970] 2 MLJ 138, in my judgment, is
misconceived. In that case the issue was whether the documents formed
part of the evidence merely being placed in an agreed bundle marked A
without being referred to by witnesses or in any other way. The answer
obviously was no.
[20] In any case, in light that the parties have agreed to the authenticity
of the letters and the parties themselves have referred them to the
witnesses at the trial and cross-examined extensively on them, there can
be no question, to my mind, of any miscarriage of justice if they are used
as evidence. In Lim Heng Soon & Anor v PP [1970] I MLJ 166 FC
(Singapore) it was held that there was no substantial miscarriage of
justice when an exhibit that was produced in court but not taken into
custody by the court and not marked as an exhibit was used as
evidence. Wee Chong Jin CJ observed at page 169 that :
“The bearing scrapper which the jury wanted with them when considering their
verdict was already part of the evidence introduced during the trial. … The
irregularity would seem to be the omission on the part of the trial court to take
into custody and to have marked as an exhibit produced before it the bearing
scrapper in question but in our opinion no substantial miscarriage of justice
occurred as a result of this irregularity.”
Whether the Defendants published the words complained of to a 3rd
Party
[22] It is fundamental that to give a cause of action in libel there must
be a publication by the defendant (per Lord Esher M.R. in Hebditch v
MackIlwaine [1894] 2 QB 54 at 58; per Bray J in Powell v Gelston
[1916] 2 K.B. 615 at 619).
In order to constitute publication, the matter must be published to or
communicated to a third party, that is to say, at least one person other
than the plaintiff (see Riddick v Thames Board Mills [1977] Q.B. 881 at
898; per Ramly J in Kian Lup Construction v Hongkong Bank
Malaysia Bhd [2002] 7 MLJ 283 at 295-296).
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[23] The 2nd defendant under cross-examination admitted to signing
and issuing both the 1st and the 2nd letters addressed to a number of
parties both local and foreign including the Prime Minister of Malaysia.
Further, she confirmed in court to having authorized the 3rd defendant to
issue the 3rd letter which is addressed to the Prime Minister of Singapore
and copied to various other parties. The 3rd defendant in his evidence
not only admitted to signing the 3rd letter; he as well confirmed that the
2nd defendant authorized him to issue it. Further, he admitted to
enclosing the 2nd letter with the 3rd letter.
[24] In this connection, Mr. Govindarajoo for the 1st and 2nd defendants
argues that the plaintiff has failed to prove that the letters of March 5,
2004 were actually received by those who have been named in the
Statement of Claim. In other words, the defendants are saying that the
plaintiff has failed to prove publication of the defamatory words in the 1st
and 2nd letters. Learned counsel did not submit on the issue of the
publication of the 3rd letter and neither did the 3rd defendant.
[25] With respect, the contention that publication of the letters is not
proven is also erroneous in law, in my view. This is because the crucial
fact of publication has long since been agreed and formally admitted by
all 3 defendants. Section 58 of the Evidence Act 1950 governs the
position with regard formal or judicial admissions. It reads thus :
Section 58 Facts admitted need not be proved
(1) No fact need be proved in any proceeding which the parties
thereto or their agents agree to admit at the hearing or which
before the hearing they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the time they
are deemed to have admitted by their pleadings : - Provided that
the court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions.
From the above, it is clear that the following classes of facts need not be
proved :
(a)
(b)
(c)
admissions at the hearing
admissions in writing before the hearing, and
admissions in pleadings.
The classes applicable to the issue at hand are (b and (c) above.
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Admissions in writing
[26] Admissions in writing made before the hearing must have been in
writing and would include a statement of agreed facts (see EVIDENCE
Practice and Procedure, Augustine Paul, 3rd edition, at p. 534). In our
present case, the Statement of Agreed Facts dated 18 May 2005 was
signed by the defendants’ solicitors Messrs Lockman Hanida & Azizah.
At that time, Messrs Lockman Hanida & Azizah were acting for all 3
defendants. It was only on August 18, 2005 that the said solicitors
discharged themselves as solicitors for the 3rd defendant who thereafter
acted in person. At the PTCM on 13 April 2010 before the Deputy
Registrar, the Statement of Agreed Facts was duly marked as Bundle F.
[27] With regard the 1st letter of 5 March 2004, all 3 defendants have
made express admissions in the Statement of Agreed Facts in relation
thereto and they are contained in the following paragraphs :
(i)
(ii)
para 6 : the 1st and 2nd defendants admitted that each of
them wrote and published the words contained in the letter;
and
para 8 : the 1st and 2nd defendant admitted that each of them
had published the 1st letter to all the persons named in the
Statement of Claim including the persons to whom the letter
was copied to.
[28] With regard the 2nd letter of 5 March 2004, all 3 defendants made
the following express admissions in relation thereto :
(i)
(ii)
(iii)
in para 7 : the 1st and 2nd defendants admitted that each of
them wrote and published the words contained in the letter;
in para 8 : the 1st and 2nd defendants admitted that each of
them had published the 2nd letter to all the persons named in
the Statement of Claim including the persons to whom the
letter was copied to; and
in para 9 : the 1st and 3rd defendants admitted that each of
them when they enclosed a copy of the 2nd letter with the 3rd
letter had published the 2nd letter to all the persons named in
the Statement of Claim including those persons to whom it
was copied to.
[29] As for the 3rd letter dated 6 April 2004, the admissions expressly
made in the Statement of Agreed Facts in relation thereto are :
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(i)
(ii)
in para 10 : the 1st and 3rd defendants each admitted to
writing and publishing the words complained of; and
in para 11 : the 1st and 3rd defendants admitted that each had
published the words complained of to all the persons named
in the Statement of Claim which included the persons to
whom the letter was copied to.
To my mind, the admissions that the 3 defendants made in the
Statement of Agreed Facts are clear and speak for themselves. To sum
up, the 1st and the 2nd defendants admitted to publishing the words
complained of in the 1st letter to all the persons named in the Statement
of Claim. The 1st, 2nd and 3rd defendants admitted to publishing the
words complained of in the 2nd letter to all the persons named in the
Statement of Claim. With regard the 3rd letter, the 1st and 3rd defendants
admitted to publishing the words complained of to all the persons named
in the Statement of Claim.
Admissions in pleadings
[30] Admissions in the pleadings arise where by any rule of pleading in
force at the time, the parties are deemed to have admitted a fact by their
pleadings.
For our purposes, O 18 r 13 RHC is applicable. It provides as follows :
O18 r 13 RHC
(1) Subject to paragraph (4), any allegation of fact made by a
party in his pleading is deemed admitted by the opposite
party unless it is traversed by that party in his pleading or a
joinder of issue under rule 4 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement
of non-admission and either party expressly or by necessary
implication.
(3) Subject t paragraph (4), every allegation of fact made in a
statement of claim or counterclaim which the party on whom
it is served does not intend t admit must be specifically
traversed by him in his defence ... and a general denial of
such allegations, or a general statement of non-admission of
them, is not a sufficient traverse of them.
[31] With respect the 1st and the 2nd letters, the relevant paragraphs in
the Statement of Claim of the plaintiff (see pp 8-95 of Bundle A) are :
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(a)
(b)
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(d)
paragraph 6 : it pleads that by the letter of 5 March 2004 (1st
letter) issued on the letterhead of the 1st defendant, YY
Capital Sdn Bhd and YY Heritage Sdn Bhd and signed by
the 2nd defendant, the 1st and 2nd defendants each of them
wrote and published the words complained of;
paragraph 7 : it is pleaded that by another letter dated 5
March 2004 (2nd letter) issued on the letterhead of the 1st
defendant, YY Capital Sdn Bhd adn YY Heritage Sdn Bhd
and signed by the 2nd defendant, the 1st and 2nd defendants
each of them wrote and published the words complained of;
paragraph 8 : it pleads that the letters in paragraphs 6 and 7
above were published by the 1st and 2nd defendants and
each of them to the persons named; and
paragraph 9 : it pleads that the letter referred to in para 7 (2nd
letter) was also published by the 1st and the 3rd defendants
and each of them to the persons named therein.
[32] The response of all 3 defendants to the allegations of facts in
paragraphs 6 to 9 of the Statement of Claim is in paragraph 4 of the
Statement of Defence (see p. 107 of Bundle A) which reads thus :
“Para 6 sehingga 9 Pernyataan Tuntutan Plaintif diakui oleh
Defendan-Defendan atas kepercayaannya kepada prinsip
kebenaran, ketelusan dan integrity. ...” (Emphasis added)
We therefore have here an express admission by all 3 defendants of the
facts pleaded in paragraphs 6 to 9 of the Statement of Claim. It follows
that by paragraph 4 of the Statement of Defence all 3 defendants admit
to the following facts :
(i)
(ii)
the 1st and the 2nd defendants published the words
complained of in the 1st letter to all the persons named in the
Statement of Claim; and
the 1st, 2nd and 3rd defendants published the words
complained of in the 2nd letter to all the persons named in the
Statement of Claim.
[33] As for the 3rd letter, the relevant paragraphs in the Statement of
Claim are :
(a)
paragraph 11 : it pleads that by the letter of 6 April 2004 (3rd
letter) issued on the letterhead of the 1st defendant, YY
Capital Sdn Bhd and YY Heritage Sdn Bhd and signed by
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(b)
the 3rd defendant, the 1st and 3rd defendants each of them
wrote and published the words complained of; and
paragraph 12 : it pleads that the letter in paragraph 11 above
was published by the 1st and 3rd defendants and each of
them to the persons named.
[34] The response of all 3 defendants to the allegations of facts made
in paragraphs 11 and 12 is found in paragraph 5 of the Statement of
Defence which pleads thus :
“Merujuk Para 10, 11, 12 dan 13 Pernyataan Tuntutan, DefendanDefendan menyatakan kata-kata yang dirujuk Plaintif tersebut di
dalam makna biasa dan semulajadinya adalah benar pada isi
(substance) dan faktanya. ...”
As can be seen there is no traverse of the allegations of facts made in
paragraphs 11 and 12 of the Statement of Claim. Under O18 r13 RHC
above, there is an implied admission of every allegation of fact made in
a pleading which is not traversed in the next pleading. Such an
admission has the same value and effect as if it were an express
admission (see The Supreme Court Practice, 1997, 1 at 18/13/3). The
defendants may want to argue that such allegations of facts have been
traversed by the general denial that is made in paragraph 11 of the
Statement of Defence. However, as stipulated in O 18 r 13 (3) RHC
above, a general denial of allegations of facts is not a sufficient traverse
thereon. This is the more so with essential allegations of facts. So far as
concerns allegations which are the gist of the action the denial should be
as precise as possible, e.g., “The defendant never spoke or published
the said words or any of them” (see The Supreme Court Practice,
1997, 1 at 18/13/6). Similarly, in our present case, the general denial in
para 11 of the Defence is not sufficient traverse of the allegations (in
paragraphs 11 and 12 of the Statement of Claim) of publication by the 1st
and 3rd defendants of the 3rd letter which allegations are the gist of the
action in defamation. Hence, I find that there was an implied admission
(which has the same effect as an express admission) by all 3 defendants
that the 1st and 3rd defendants published the words complained of in the
3rd letter to all the persons named in the Statement of Claim.
[35] In summary, by the Statement of Agreed Facts (Bundle F) and the
Statement of Defence combined, all 3 defendants agreed to and
admitted the following facts :
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(a)
the 1st letter and the 2nd letter were published by the 1st and
the 2nd defendants to the following persons :(i)
(ii)
the Prime Minister of Malaysia
the President of the Dewan Perniagaan Melayu
Malaysia
(iii) the President of the Malaysian Retailers Association
(iv) the High Commissioner of Britain
(v) the High Commissioner of Singapore
(vi) Mr Michael Kok of Dairy Farm International Pte Ltd,
Singapore and
(vii) Mr Simon Keswick;
(b)
the 1st and 3rd defendants published the 2nd letter to the
following persons when they enclosed a copy thereof with
the 3rd letter :(i)
(ii)
(iii)
(iv)
(iv)
(c)
the Prime Minister of Singapore
the High Commissioner of Singapore
the First Secretary (Commercial) of the Singapore High
Commission
Mr Michael Kok of Dairy Farm International Pte Ltd,
Singapore and
Mr Simon Keswick;
the 1st and 3rd defendants published the 3rd letter to the
following persons :
(i)
(ii)
(iii)
(iv)
(v)
the Honourable Prime Minister of Singapore
His Excellency the High Commissioner of Singapore
the First Secretary (Commercial) of the Singapore High
Commission
Mr Michael Kok of Dairy Farm International Pte Ltd,
Singapore and
Mr Simon Keswick.
[36] Following from the admissions of the 3 defendants, express and
implied, in the Statement of Agreed Facts and Statement of Defence of
the fact of publication of the 3 letters to every one of the persons stated
in the Statement of Claim, there was no question of the plaintiff not
having proved the fact of publication.
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Whether the words complained of are published of or concerning
the plaintiff
[37] It is well-settled that to succeed in the action, the plaintiff must
prove a publication of and concerning him (per Lord Donovan in Morgan
v Odhams Press [1971] 1 WLR 1239 at 1263). In other words, the
plaintiff must identify himself as the person that was the subject of the
libel.
[38] In so far as the 1st and the 2nd letters are concerned there is no
difficulty in concluding that the plaintiff is the subject of the words
complained of. This is because the plaintiff is expressly named in the 1st
and the 2nd letters. As stated in Gatley on Libel and Slander, 9th edition
at paragraph 32.16 :
“Where the plaintiff is named in the libel no difficulty can arise. No evidence
that there were readers who identified the plaintiff is necessary, as the plaintiff
only has to establish that persons could have identified him from the words
used, which plainly they could if he was expressly named.”
[39] With regard the 3rd letter, the 3rd defendant in his submission
argues that the letter does not name the plaintiff and as such, does not
refer to the plaintiff. This in my opinion is entirely misconceived. By
paragraph 9 of the Statement of Agreed Facts (Bundle F), all the
defendants admitted and agreed that the 3rd letter had enclosed a copy
of the 2nd letter. In addition, this fact of the 2nd letter having been
enclosed with the 3rd letter was pleaded in paragraph 9 of the Statement
of Claim and which the defendants by paragraph 4 of the Statement of
Defence has admitted. As stated earlier, the 2nd letter which is enclosed
with the 3rd letter clearly and expressly refers to the plaintiff. Hence, the
3rd defendant cannot be heard to say that there is no express reference
to the plaintiff in the 3rd letter.
[40] In any case, the 3rd letter made reference to the plaintiff in the
following manner :
“We forward a copy of our letter to our Malaysian Prime Minister
for your attention and we seek recourse that Dairy Farm
International Pte Ltd had through its subsidiary in Malaysia, ...”
(emphasis added)
The 2nd letter that is enclosed with the 3rd letter is captioned “Dairy Farm
International - South Asia Region [and] Dairy Farm Giant Properties Sdn
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Bhd”. The latter is the plaintiff. It is further stated in the 2nd letter that the
defendants were working with Giant, that is to say, the plaintiff, in
developing their stores in Malaysia. It can be seen in the paragraph
from the 3rd letter reproduced above that there is a reference to Dairy
Farm International Pte Ltd and its subsidiary in Malaysia. Although the
words used are “subsidiary in Malaysia” they are by implication a
reference to the company mentioned in the 2nd letter with which the
defendants were working with in Malaysia. As such I find that the
plaintiff was also identifiable in the 3rd letter by the reference to it in the
paragraph reproduced above as the subsidiary in Malaysia of Dairy
Farm International Pte Ltd.
Whether the words in their natural and ordinary meaning are
defamatory of the plaintiff
[41] Gatley on Libel and Slander, 9th edition, at 2.1 puts this issue in
perspective thus :
“The gist of the torts of libel and slander is the publication of matter (usually
words) conveying a defamatory imputation. In determining whether the words
are defamatory there are two stages, first to decide what they mean, and then
to decide whether that meaning is defamatory.”
In Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd
[1996] 1 MLJ 393 at 402 Richard Malanjum J, as he then was, said that
the determination of whether the words are defamatory is one of
construction of the natural and ordinary meaning of the words published
and at the same time determining whether they are capable of and are in
fact defamatory of the plaintiff (also see J.B. Jeyaretnam v Goh Chok
Tong [1985] 1 MLJ 334 at 336 Thean J).
[42] On the construction of the words published, the approach to such
a construction is to consider the meaning such words would convey to
ordinary reasonable persons using their general knowledge and
common sense; it is not confined to strict literal meaning of the words
but extends to any reference or implication from which persons can
reasonably draw. Lord Morris stated so in Jones v Skelton [1963] 3 All
ER 952 at 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 the words
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(see Lewis v Daily Telegraph, Ltd. [1963] 2 All E.R. 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.”
[43] As for the issue of whether the words published were capable of
and are in fact defamatory of the plaintiff, the test is whether the words
were calculated to expose the plaintiff to hatred, ridicule or contempt in
the mind of a reasonable man or would tend to lower him in the
estimation of right-thinking members of society generally (per Lord Atkin
in Sim v Stretch [1936] 2 All ER 1237, 1240; also see J.B. Jeyaretnam
v Goh Chok Tong, supra, at 336). Mohamed Azmi J, as he then was,
considered the point in Syed Husin Ali v Sharikat Penchetakan
Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 and observes as follows
at p 58 :
“Thus the test of defamatory nature of a statement is its tendency to excite
against the plaintiff the adverse opinion of others, although no one believes
the statement to be true. Another test is: would the words tend to lower the
plaintiff in the estimation of right-thinking members of society generally? The
typical type of defamation is an attack upon the moral character of the plaintiff
attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.”
In addition, “to be defamatory an imputation need have no actual effect
on a person’s reputation; the law looks only to its tendency, so there is a
cause of action even if the words were not believed by the audience”
(Gatley on Libel and Slander, 9th Ed, p [23] para 2.1).
[44] On this whole issue, it needs to be stated at the outset that the
defendants have in fact conceded the point that the words complained of
were in fact defamatory. This admission of the defendants is made in
paragraph 12 of the Statement of Agreed Facts (Bundle F) wherein all 3
defendants agreed that the words contained in the 3 letters are capable
of being defamatory of the plaintiff. Learned counsel for the plaintiff
submits that in light of this admission by the defendants, there is no
dispute that the words complained of are defamatory of the plaintiff. With
respect, I agree with the plaintiff on this. As earlier explained, by virtue
of section 58 Evidence Act no fact need be proved which the parties
have agreed to admit in writing before the hearing. As we have seen,
the Statement of Agreed Facts (Bundle F) qualifies as a formal
admission in writing. In my judgment, because the defendants have
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admitted in writing that the words contained in all 3 letters are
defamatory, the point is settled and the meaning of the words
complained of taken as proven to be defamatory of the plaintiff. In my
view, this is sufficient to dispose of the issue at hand. However, in view
of the matters pleaded and the arguments addressed by counsels on
both sides and for the sake of completeness, I feel I should go on to
examine the words published and ascertain if they were defamatory.
[45] Following from the test laid down in Sim v Stretch, supra, and
reiterated in Syed Husin Ali, supra, the crucial point in this issue is this:
did the words complained of in their natural and ordinary meaning
impute to the plaintiff any dishonourable or discreditable conduct or
motives or a lack of integrity on its part ? If they did, then inescapably
they were defamatory of the plaintiff. It seems to me that in considering
this issue one must examine the words complained of. The 1st letter
which is in the Malay language makes the following allegations
regarding the plaintiff :
(i)
(ii)
(iii)
(iv)
(v)
“aktiviti perniagaan yang tidak berprinsip dan tidak beretika
yang dilakukan oleh syarikat besar multinational”;
“tidak ikhlas untuk membantu syarikat Bumiputera”;
“kami telah diperalatkan oleh syarikat tersebut”;
“telah memberi kebenaran kepada seorang pengarah
mereka yang berkerakyatan Singapura untuk mengadakan
perbincangan dan rundingan tanpa memiliki pas penggajian
yang sah pada masa itu”; and
“mengeksploitasikan rakyat Malaysia lebih-lebih lagi
Bumiputera seperti kami”.
[46] The allegations in the 2nd letter are a repeat, albeit in English, of
the same allegations stated in the 1st letter. The allegations regarding
the plaintiff are :
(i)
(ii)
(iii)
(iv)
(iv)
“unscrupulous and unethical Business Conduct of big
multinational company”;
“exploited by this so called big foreign company”;
“misled to believe that Giant were sincere to assist
Bumiputera Entrepreneur”;
“the Company had authorized one of the Singaporean
Director to enter into discussion and negotiation without a
valid work permit at that point of time”;
“exploiting Malaysian more so a Bumiputera for their own
benefits”.
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[47] To my mind, there can be no doubt at all that the natural and
ordinary meanings of the words above were capable of a defamatory
meaning and were defamatory of the plaintiff in the manner ascribed in
paragraph 10 of the Statement of Claim. The allegations clearly suggest
to any reader of the letter that :
(i)
(ii)
(iii)
(iv)
the plaintiff conducts its business in an unlawful,
unscrupulous, unethical, improper and/or dishonest manner;
the plaintiff misleads, exploits and cheats local companies,
and in particular Bumiputra-owned companies;
the plaintiff conducts its business without integrity,
transparency and fairness; and
the plaintiff had authorized a person without a valid work
permit to act on its behalf and had contravened the
immigration laws of Malaysia.
[48] The sting, in my view, lay in the suggestion or implication that the
plaintiff as a big multinational company has conducted business in
Malaysia in an unscrupulous, unethical and unprincipled manner thus
exploiting Malaysians in particular Bumiputra entrepreneurs for its own
ends. To say that the plaintiff is any of these things is to impute lack of
integrity, dishonesty, cheating and dishonourable conduct on the part of
the plaintiff in conducting its business. In my opinion, the imputations
would certainly have the effect of lowering the plaintiff in the estimation
of right-thinking members of society generally. This was all the more so
considering that the recipients of the letters were persons in high places
as for instance the Prime Minister of Malaysia, the President of the
Dewan Perniagaan Melayu Malaysia, the President of the Malaysian
Retailers Association, the High Commissioner of Britain, and the High
Commissioner of Singapore. There is little doubt that these individuals
would have taken a dim view of the plaintiff in light of these allegations.
As such, the imputations are a defamation of the plaintiff.
[49] Furthermore, the 1st and 2nd letters go on to state that the plaintiff
had authorized one of the Singaporean directors to enter into discussion
and negotiation without a valid work permit at that point in time. This
clearly is an imputation of breach of the Immigration laws of Malaysia.
As such when the plaintiff ascribed the meaning that the plaintiff
conducts its business in an unlawful manner, it is in my opinion, an
imputation that is justified. Attributing breach of the laws to the plaintiff,
in my judgment, is certainly a defamation of the plaintiff.
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[50] As for the 3rd letter, I agree with the submission of learned counsel
for the plaintiff that it is of added significance. This is because, not only
did it itself contain defamatory statements regarding the plaintiff, but it
also enclosed the 2nd defamatory letter and circulated it to new
recipients. One should also bear in mind that the 2nd defendant in court
admitted to authorizing the 3rd defendant to issue this 3rd letter. I should
think that the act of enclosing the 2nd letter with the 3rd letter amounts in
law to a fresh publication of the 2nd letter by the 3rd defendant to the
Prime Minister of Singapore and the First Secretary (Commercial) of the
Singapore High Commission (to whom the 2nd letter had not been
originally addressed). Besides, it is in my view a re-publication of the
letter by the 2nd defendant to the High Commissioner of Singapore, Mr
Michael Kok and Mr Simon Keswick (to whom the 2nd letter had been
sent earlier by the 2nd defendant). In my judgment, enclosing the 2nd
letter with the 3rd letter and then publishing it afresh and re-publishing it
meant that the contents of the 2nd letter were effectively incorporated into
and become part of the contents of the 3rd letter. This necessarily means
that the allegations in the 2nd letter (adumbrated above) regarding the
plaintiff have become part of the contents of the 3rd letter.
[51] In addition to the allegations in the 2nd letter, the 3rd letter itself
made the following allegations regarding the plaintiff :
(i)
(ii)
(iii)
(iv)
“had used and made used of Ms Hayati Bte Mohamad”;
“ABORTED WHEN THE ACQUISITION OF THE TOPS
STORES WAS COMPLETED”;
“working at the Malaysian office without a valid work permit”;
and
“moral rights, code of ethics and business integrity”.
[52] To my mind, there can be no doubt at all that the natural and
ordinary meanings of the additional words of the 3rd letter itself taken
together with the words of the 2nd letter were capable of a defamatory
meaning and were defamatory of the plaintiff in the manner ascribed in
paragraph 13 of the Statement of Claim. The allegations suggest to any
reader of the 3rd letter and the 2nd letter that was enclosed with it that :
(i)
(ii)
(iii)
the plaintiff conducts its business in an unlawful,
unscrupulous, unethical, improper and/or dishonest manner;
the plaintiff misleads, exploits and cheats local companies,
and in particular Bumiputra-owned companies;
the plaintiff conducts its business without integrity,
transparency and fairness;
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(iv)
(v)
the plaintiff had authorized a person without a valid work
permit to act on its behalf and had contravened the
immigration laws of Malaysia; and
the plaintiff misleads, exploits and cheats local individuals,
and in particular Bumiputras.
[53] I spoke earlier of the sting in these imputations and suggestions
and I say the same for the allegations in the 3rd letter. I believe I need
not repeat what is said earlier. In the same way, to say that the plaintiff
is any of these things is to impute lack of integrity, dishonesty, cheating
and dishonourable conduct on the part of the plaintiff in conducting its
business. Similarly, the imputations would have the effect of lowering
the plaintiff in the estimation of right-thinking members of society
generally. In the case of the 3rd letter, the recipients were also persons in
high places like the Prime Minister of Singapore, the High Commissioner
of Singapore, and the First Secretary (Commercial) of the Singapore
High Commission. There is little doubt that these individuals would have
taken a dim view of the plaintiff in light of these allegations. The words
of the 3rd letter are therefore, in my judgment, defamatory of the plaintiff.
[54] Mr. Govindarajoo for the 1st and 2nd defendants contended that
some of the meanings ascribed by the plaintiff in paragraph 10 of the
Statement of Claim as the natural and ordinary meaning of the words
complained of are not expressly stated in the 1st and the 2nd letters. The
1st and 2nd defendants referred in particular to the words unlawful,
dishonest manner, cheats, without integrity, transparency and fairness
as pleaded in paragraph 10 which they say are not even found in the 1st
and 2nd letters. The 3rd defendant also higlighted that the plaintiff has in
the Statement of Claim pleaded that the words of the 3rd letter were
meant to mean the plaintiff conducts its business in an unlawful manner,
is unscrupulous and dishonest. However, these words too are not found
in the 3rd letter. Learned counsel for the 1st and 2nd defendants referred
to Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523
where the court held at p. 528 that merely to call someone dishonest, a
liar or a cheat is insufficient to amount to defamation as they do not
entail corporal punishment. The 1st and 2nd defendants then argued that
the 2nd defendant had not even used the words cheat, unlawful and
dishonest manner in the 1st and 2nd letters let alone that they are capable
of a defamatory meaning.
[55] I think it is missing the point altogether if the defendants thought,
as they appear to going by their contention above, that the ordinary and
natural meaning of the words published is confined to the actual or
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express words used in the letters. The statement by Lord Morris in
Jones v Skelton, supra, could not have been any clearer than that the
ordinary and natural meaning of the words published also include any
implied, inferred or indirect meaning of the words. To reiterate, such
meaning is not confined to strict literal meaning of the words but extends
to any reference or implication from which persons can reasonably draw.
In my judgment, it does not make sense to expect to use precisely the
same words that are published when one is giving the implied, inferred
or indirect meanings of the words. In any case, the phrase “implied,
inferred or indirect meanings of the words” itself suggest something else
other than what is stated. That is precisely why we do not find, in
paragraph 10 and 13 of the Statement of Claim, a repeat of all the
express words published but words to describe or bearing the implied,
indirect or inferred meanings of the words.
[56] As for the reliance on Lim Kit Siang’s case, supra, to be sure, it is
not clear to me precisely what the defendants’ line of argument is based
on this case. Anyhow, it seems to me that when the court there spoke of
it being insufficient to amount to defamation to call someone dishonest,
a liar or a cheat, the court was specifically referring to a case in slander
(not libel) where special damage has to be pleaded and it was not.
Further, in that case there was no evidence that the words complained
of were even uttered.
[57] Therefore, I find that nothing turns on the contentions of the
defendants on this.
[58] I now turn to the defence raised.
The Plea of Justification
[59] The sole defence pleaded by the defendants is to be found in
paragraph 5 of the Statement of Claim and as noted earlier, it is a plea
of justification. That justification is the sole defence is confirmed by the
Statement of Agreed Issues dated 18 May 2005 (Bundle G) and signed
by Messrs Lokman Hanida & Azizah, who at that time were acting for all
3 defendants. By paragraph 2 of Bundle G the sole defence to be tried
is “whether the said words were true”. The Federal Court in RHB Bank
Bhd v Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665 at 679-680
reaffirmed the fundamental principle that a party is strictly bound by its
pleadings. Hence, the defendants are bound by their pleaded defence
and cannot depart from the same.
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[60] There are however specific rules of pleading that the defendants
have to comply with if justification is employed in a defamation case. In
this regard, O 78 r 3(2) RHC 1980 is of particular application. It states
thus :
“Where in an action for libel or slander the defendant alleges that, in so far as
the words complained of consist of statements of fact, they are true in
substance and in fact, and in so far as they consist of expressions of opinion,
they are fair comment on a matter of public interest, or pleads to the like
effect, he must give particulars stating which of the words complained of he
alleges are statements of fact and of the facts and matters he relies on in
support of the allegation that the words are true.”
[61] The effect of O 78 r 3(2) RHC was considered in several cases
and the consensus is that it is a strict requirement for the defendants to
plead full particulars when pleading a defence of justification. Thus, in
Lee Kuan Yew v Chin Vui Khen & Anor [1991] 3 MLJ 494 at 496 Siti
Norma Yakob J, as she then was, held as follows :
“Under O 78 r 3(2) of the Rules of the High Court 1980 (‘the Rules’), it is
incumbent upon the defendants when relying on the pleas of justification and
fair comment to plead particulars of the facts that are sought to be justified
and on which the comments have been based.”
Similarly, in Datuk Abdul Ghapur Hj Salleh v Ch’ng Boon Heng, The
Chief Editor of New Sabah Times & Ors [2002] 6 CLJ 352 at 362
Richard Malanjum J, as he then was, referred to the rule and said as
follows :
“Thus it is a requirement of the RHC that particulars must be given if a plea of
justification is employed in a defamation case. In the instant case para. 4 [of
the Defence] failed to do just that. Hence on this point alone that the plea
could not be sustained.”
The 1st and the 2nd defendants have relied on the case of Chiew Foo
Hua v Miri Daily News & Anor [2000] 8 CLJ 68. Even in that case
Sulaiman Daud JC, as he then was, held as follows at 75-76 :
“… The learned counsel in his final submission argued that the defendants
should not in their defence of justification be allowed to rely on any such
particulars of fact which are not pleaded in their defence. I agree that there is
a strong force in such contention as under O.78 r.3(2) of the Rules of the High
Court 1980 (the RHC) it is incumbent on the defendants when relying upon
the plea of justification and fair comment to plead particulars of the facts that
are sought to be justified and on which the comments have been based…”
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[62] In the present case, there are absolutely no facts pleaded in the
Statement of Defence to support the allegation of justification. A
defence of justification without particulars cannot be sustained as it is
tantamount to a bare denial and meaningless. Therefore, in law the
defendants do not have a pleaded defence of justification in this action.
[63] The case of Chiew Foo Hua v Miri Daily News & Anor [2000] 8
CLJ 68 was alluded too. The 1st and 2nd defendants relied on the
decision in that case to argue that they can still rely on the defence of
justification even in the absence of particulars. However, as pointed out
by learned counsel for the plaintiff, Chiew Foo Hua can easily be
distinguished from the present case. In that case there was no objection
when the evidence on justification was led by the defendant although no
such particulars were pleaded in the defence. It was only during
submissions that the plaintiff objected to the evidence of justification.
The learned Judicial Commissioner therefore held (following
Superintendent of Land and Survey (4th Div) v Hamit bin Matusin
[1994] 3 AMR 1882 ) that the failure to plead particulars of facts which
were sought to be justified was waived or inferentially consented to
when the evidence was adduced without objection by the plaintiff. In the
instant case, before the 2nd defendant (DW1) gave her evidence, Mr.
Dhinesh Bhaskaran of learned counsel for the plaintiff had specifically
recorded his objection to nearly all her evidence (as given in the witness
statement) on grounds that the evidence led fell outside the 4 corners of
the pleaded defence. Learned counsel stated that he would crossexamine DW1 without prejudice to the objection.
[64] It follows therefore that in our present case, there was no question
of the plaintiff having waived the failure to plead the particulars of facts
sought to be justified or inferentially consenting to the evidence being
adduced. The fact remains that the defence of justification of the
defendants is without the pleaded particulars and as such, rendered
meaningless. As pointed out earlier, the plea of justification is the sole
defence. Since it is rendered meaningless, there is absolutely nothing
for the defendants by way of defending the case in defamation against
them. I find therefore that the defendants fail on the issue of justification.
The plaintiff is therefore entitled to judgment without further inquiry into
the defendants’ evidence.
[65] In my judgment, my decision on this issue is sufficient to dispose
of the issue of liability. I do not propose to go into the evidence adduced
and the submissions raised by the defendants in support of the failed
defence of justification. That would be unnecessary.
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Liability
[66] For the reasons given above, I find as follows on the issue of
liability.
Liability of the 2nd Defendant
[67] The 2nd defendant is liable for the following :
(i)
(ii)
(iii)
(iv)
(v)
issuing and publishing the 1st defamatory letter
issuing and publishing the 2nd defamatory letter
authorizing the issuance of the 3rd defamatory letter, which
also enclosed a copy of the 2nd defamatory letter
making a fresh publication of the 2nd defamatory letter to the
Prime Minister of Singapore, and the First Secretary
(Commercial) of the Singapore High Commission ; and
re-publishing the 2nd defamatory letter to the High
Commissioner of Singapore.
Liability of the 3rd Defendant
[68] He is liable for the following:
(i) issuing and publishing the 3rd defamatory letter; and
(ii) publishing the 2nd defamatory letter by enclosing it with the 3rd
defamatory letter.
Liability of the 1st Defendant
[69] Gatley on Libel and Slander, 11th Ed, paragraph 8.30 states :
“The fundamental principle is that the employer is liable where the employee
was acting within the scope of his employment and that is as applicable to
defamation as to any other tort.”
It is not in dispute that the 2nd and 3rd defendants issued, published and
re-published all 3 defamatory letters on the 1st defendant’s letterhead.
Further, it is not disputed that the 2nd defendant as managing director
and the 3rd defendant as Chief Executive Officer were both employees of
the 1st defendant and committed their acts in the course of their
employment. The 1st defendant is therefore vicariously liable for the
tortuous acts of the 2nd and 3rd defendants in issuing, publishing and republishing the 3 letters on its letterhead.
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Conclusion
[70] For the reasons given, I am satisfied on balance of probabilities
that the words complained of are capable of and are defamatory of the
plaintiff and published in the manner set out above by the 3 defendants.
Further, I find that the defendants have not proved on balance their
defence of justification. I therefore hold and conclude that all 3
defendants are liable for the defamation of the plaintiff. The case is
remitted to the Senior Assistant Registrar for assessment of damages. I
order for costs of the action to the plaintiff to be taxed unless agreed.
( SIGNED )
SUPANG LIAN
Judicial Commissioner
High Court Malaya
Johor Bharu
Dated : 20 May 2010
Solicitors
Mr. Dhinesh Bhaskaran and Miss Denise Tan of Messrs Shearn
Delamore & Co., Advocates & Solicitors for the plaintiff.
Mr. M Govindarajoo of Messrs Nurbaya Govind & Co., Advocates &
Solicitors for the 1st and 2nd defendants.
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guaman sivil no. 22-820-2004 - Portal Rasmi Mahkamah Negeri Johor