IN THE HIGH COURT IN KUALA LUMPUR
IN THE FEDERAL TERRITORY, MALAYSIA
CIVIL SUIT NO. 23NCVC-28-03/2013
BETWEEN
HEW KWEE YEW
(NRIC No. : 650524-10-5722)
...PLAINTIFF
AND
…DEFENDANT
RHB BANK BERHAD
(COMPANY NO.: 6171-M)
GROUNDS OF JUDGMENT
Introduction
The Plaintiff’s claim against the Defendant on tort of defamation over a
statement uttered by the Defendant: a slander as her cause of action. The
reliefs which she is seeking are as follows:
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i. general and special damages for RM 500,000.00
ii. exemplary damages
iii. aggravated damages,
iv. an apology that can be accepted by the Plaintiff
v. interest at the rate of 8% from the date of the writ filed until full payment
vi. costs on solicitor and client basis, and
vii. any order that the Court thinks just and expedient.
The Plaintiff’s case
Sometimes in November 2012, the Plaintiff’s company, Anovatech
Corporation. Limited applied for a hire purchase loan facility from the
Defendant to buy a car. On 9 November 2012, the representative of the
Defendant, known as Miss Stephanie (SD1)) called a car dealer, Fixed
Focus Sdn. Limited. (third party) and told the third party representative
(SP3), about the Plaintiff's application for hire purchase loan facility.
The Defendant informed SP3 that the Plaintiff's application for hire
purchase loan facility cannot be approved because the Plaintiff was
blacklisted by Bank Negara Malaysia (the purported statement).
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The Plaintiff was shocked by the purported statement. She was
embarrassing and stressful. The purported statement uttered by the
Defendant was known to the Plaintiff’s staffs, her friends and neighbours.
As a result of the purported statement, the Plaintiff failed to obtain an
approval for the hire purchase loan facility from the Defendant .The Plaintiff
failed to get the contract for her business, and she claimed had lost future
prospects in her business which she had engaged.
The Defendant’s case
The Plaintiff failed to state the exact statement purportedly uttered by the
Defendant. At all material times, the Defendant's representative known as
Ms. Stephanie (SD1) never informed SP2, in particular, that the Plaintiff
has been blacklisted by Bank Negara.
The Defendant denied that the SD1 had informed or uttered the purported
statement to the Plaintiff whom her name has been blacklisted by the Bank
Negara. The Defendant denied that the Plaintiff had failed to obtain
approval for the hire purchase loan facility from the Defendant.
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The problems faced by the Plaintiff are not related to the statement
purportedly uttered by the Defendant. The Defendant had offered the loan
facility, and it was approved by the Defendant but was refused or rejected
by the Plaintiff.
The alleged defamation was not related to the facts that as a result of the
purported defamatory statement; the Plaintiff failed to get the contract for
her business and had lost future prospects in which she had engaged and
later suffered losses due to the purported statement.
Issues to be tried
i. Whether the Defendant through SD1 verbally uttered a statement that the
Plaintiff has been "blacklisted by the Bank Negara" (the purported
statement).
ii. Whether the statement referred to the Plaintiff;
iii. Whether the statement is defamatory,
iv. Whether the statement was published to third party,
v. If the above elements are fulfilled whether Plaintiff suffers losses.
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Analysis of evidence and Findings
Defamation Laws protect the reputations of individuals and other entities
such as business from untrue and damaging statements. Slander occurs
when a defamatory statement is spoken or otherwise audible, such as a
radio broadcast. While libel refers to statements that can be seen i.e.
typically written and published.
It is well settled law that in order to prove a claim on either type of
defamation, three elements must be established:
i.
the Plaintiff, had made a defamatory statement;
ii.
the statement referred to the Plaintiff, and;
iii.
the statement was published to third party- (see
Ayob bin Saud v
T.S Sambanthamurthi [1989] 1 CLJ 321 (Rep), [1989] 1 CLJ 152).
The Plaintiff must, firstly, prove the three elements above before the
Plaintiff can be said he had established his claim against the Defendant.
Only after proving these elements, the Defendant will adduce evidence to
prove his defence. If the Plaintiff fails to prove one of the above elements,
then the Plaintiff’s claim can be dismissed without the Defendant adducing
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any evidence. This principle has been decided in cases - S. Pakianathan v
Jenni Ibrahim [1988]2MLJ173 and Abdul Rahman Talib v Seenivasagam &
Anor [1966]2MLJ66.
Whether the Defendant had uttered the purported defamatory
statement.
The Plaintiffs alleged that the Defendant had orally uttered the statement
“blacklisted by the Bank Negara" and was uttered by SD1 to SP2 (third
party).
The Defendant’s defence is that the statement was never uttered by SD1 to
SP2.
The first issue to be determined by this Court is whether the statement was
uttered by SD1.
Plaintiff's case relies heavily on the evidence from SP2 to prove whether
the purported statement was uttered by SD1 to SP2. In SP2 testimony,
she said, “…. I called up bank officer, Miss Stephanie (SP2) who is in
charge of the loan application. She then informed me that Miss Hew’s
(Plaintiff) loan got some problem and cannot be processed due to the Miss
Hew’s name was “blacklisted by Bank Negara”
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SP2 then told her superior (SP3) on the matter. In her testimony in crossexamination, SP2 said what she understood by the
word "blacklisted" is
that where a bank customer has a bad name with Bank Negara and difficult
to get loans in the future.
SP3 in her testimony testified that she only knew about the purported
statement when told by SP2. SP3 does not have personal knowledge about
the statement uttered by the SD1 to SP2.
SP1 also testified in her evidence that she was contacted by SP2 and SD1
on 11.09.2012 and was notified that the hire purchase loan application by
her cannot be processed by the Defendant because her name was
"blacklisted by the Bank Negara." SP1 was told by SP2 that her name was
blacklisted by the Bank Negara.
However, SP1 evidence, especially during cross-examination where I
found that SP1 was evasive in answering questions by Counsel for the
Defendant.
There was material inconstancies in her testimony especially matters
pertaining statements uttered by SD1. SP1 testified that she was defamed
by the statement that she was blacklisted by Bank Negara. But during
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cross- examination, SP1 testified that there were numbers of statements
uttered by the Defendant’ representative.
As such, it can be concluded that, SP1 was unsure as to the exact
statement uttered by SD1
There are material contradictions in her testimony on the issue of whether
she had checked her status with the Bank Negara and with other banks,
numbers of statement uttered by the Defendant’s representative, approval
of the Plaintiff’s loan by the Defendant and other facilities that she have
with other banks especially with regard to D2.
The evidence of SP1 has to be evaluating with care and cautious in view of
the many material contradictions and thus affecting the credibility of SP1.
SP1 was evasive and not transparent in her testimony.
I have observed the demeanors of SP1; more than often she was evasive
when answering questions. She does not appear to be a truthful witness.
The Plaintiff had submitted that exhibit D2 should not be admissible
because it was not pleaded in the Defence. Exhibit D2 relates to a CCRIS
Report. D2 is credit information that is confidential and which is not given to
the customer at all material times. The court was informed that SP1 had
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give consent for D2 to be tendered in court and there was no objection from
the Plaintiff’s counsel for the tendering of D2 in the proceeding.
D2 is not a fact that ought to be pleaded but an evidence to support the
Defendant’s contention that there is no basis to utter the word “blacklisted
by Bank Negara” since the Plaintiff is not blacklisted. As such, D2 is
admissible.
The Defendant had denied that SD1 had uttered the purported statement to
SP3. SD1 had also denied uttering such statement to the Plaintiff herself.
SD1 had testified that Bank Negara can never blacklisted a customer and
had in her evidence pointed out that only banks other than Bank Negara
can blacklist the customer.
SD1 had been in the banking line since June 2008. SD1 never informed
SP2 that the Plaintiff was blacklisted by Bank Negara since it would be
unreasonable statement for the very fact that as she had testified Bank
Negara does not blacklist the customer.
SD1 is very consistent in her evidence even though continuously
challenged in cross-examination by the Plaintiff’s counsel. I have no doubt
with her evidence and demeanor. SD1 is a credible witness.
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The Defendants’ defence is that the purported statement was never
uttered. Exhibit D2 showed the Plaintiff has a credit card account tagged as
“special attention account” are evidence supporting the Defendant’s case
that the words was never uttered.
The Plaintiff had submitted that the Defendant failed to plead the defence
of justification or fair comment.
The defence of justification or fair comment would only arise if the
Defendant is in fact pleading that the statement was uttered but it was
justified or it amounts to a fair comment.
On the facts of this case, the exact statement uttered is in doubt due to the
contradictory evidence by SP1 .The report from CCRIS; D2 supported the
testimony of SD1 that she never uttered the purported statement.
The statement purportedly uttered by SD1 is farfetched since the existence
of the word being “blacklisted by Bank Negara” by SD1 would never
happen since being in the banking line since 2008. SD1 obviously had no
reason to utter the purported statement which does not have any merits.
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The purported statement complained of was not proven uttered by SD1 and
as such could not have been taken to refer to the Plaintiff.
Likewise, flowing from the above, the issue of whether the statement
complained of is defamatory would equally fail. The element of publication
of the purported statement as such ought not to arise.
The elements required to sustain a case of action for defamation is trite
law. The Plaintiff had failed to prove that the Defendant had in fact uttered
the purported statement. The Plaintiff had failed to establish all the
elements to support the case of action for defamation.
For the foregoing reasons, I dismissed the Plaintiff claim with costs of
RM30, 000.00.
Dated: 27.9.2013
(ROSILAH BINTI YOP)
Judicial Commissioner
NCvC 8
Kuala Lumpur High Court
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For the Defendant:
Encik Malcom Fernandez
C Sukumaran & Co.
1st Floor, Wisma Tan Kim San
No. 518A, 3rd Mile, Jalan Ipoh
51200 Kuala Lumpur
For The Plaintiff:
Cik Patricia Chan
Lee Ros & Ling
Unit CT-07-12 Coporate Tower
Subang Square
Jalan SS 15/4G
47500 Subang Jaya
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