Chang Yoke Yee v Kinta Riverfront Hotel & Suites Sdn Bhd (A-02(IM)(NCVC)-1628-08/2018)

This is an appeal by the Appellants/Plaintiffs against the decision of the High Court at Ipoh in allowing the Respondent/First Defendant’s application to strike out the Appellants/Plaintiffs’ Writ and Statement of Claim under Order 18 rule 19(1) of the Rules of Court 2012 (‘ROC 2012’) with costs of RM5,000.00 in Encl. 13.

We heard the Appellants/Plaintiffs’ appeal on 9th January 2019 wherein at the end of it, we allowed the appeal with costs. We now give our reasons in doing so.

For ease of reference the parties will be referred to in this judgment as they were described in the Court below. Background Facts [4] The 2nd Defendant and the 1st Plaintiff in the original suit were husband and wife but their marriage was never registered. 3

This suit arose from an incident in which the 2nd Defendant broke into a unit in the 1st Defendant’s premise occupied by the Plaintiffs, causing a commotion.

The Plaintiffs commenced a defamation suit against the 1st and 2nd Defendants in the original suit. The basis of their claim was based on the Statement of Defence filed by the 1st Defendant in another suit vide Suit No. AA-NCVC-3-01/2017 involving the same parties which was later transferred down to the Sessions Court and re-registered as No. AA-A53- 11-06/2017 in which the Sessions Court had expunged the impugned paragraphs 5, 8, 9, 10, 11 and 12 of the 1st Defendant’s Statement of Defence upon an application made by the Plaintiffs. This order of the learned Sessions Court judge was never appealed by the 1st Defendant.

The Plaintiffs alleged that the 1st Defendant had caused an embarrassment and had defamed them through the Statement of Defence filed by the 1st Defendant. The Plaintiffs considered the statements which were expunged by the Sessions Court to be defamatory and had tarnished their reputation.

In the original suit, the Plaintiffs claim against the Defendants for the following reliefs:

General damages;

Exemplary damages;

Written unirrevocable apologies from the Defendants;

Undertaking not to repeat the same defamatory statements against the Plaintiffs; 4

Compensation;

Costs based on the solicitors - client basis; and

Other reliefs. At the High Court [9] The Defendants filed an application in encl. 13 to strike out the Plaintiffs’ original suit on the ground that they were protected by absolute privilege. As we stated earlier, enc. 13 was allowed by the learned High Court judge with costs. [10] In his brief written grounds of judgment, the learned presiding High Court judge relied on S Ashok Kandiah & Anor v. Dato’ Yalumallai Muthusamy & Anor [2011] 1 CLJ 460 CA and Ayob Bin Saud v. T S Sambanthamurthi [1989] 1 MLJ 315 before deciding that the statements contained in the 1st Defendant Statement of Claim fell squarely within the category of absolute privilege and were therefore insulated from defamation action. Hence, his Lordship held that the Plaintiffs’ claims against the 1st Defendant disclosed no reasonable cause of action, was scandalous, frivolous or vexatious and was an abuse of the Court process. Therefore the claim against the 1st Defendant was unsustainable and ought to be struck out with costs. The Appeal [11] Before us, learned counsel for the Plaintiffs canvassed their main ground of appeal was that the 1st Defendant is not protected by the defence of absolute privilege once the relevant paragraphs in their Statement of Defence had been expunged by the Sessions Court by an order dated 5

4.10.2017 of which the 1st Defendant had failed to appeal on. Learned counsel argued that a defence of absolute privilege only applies when a statement and/or evidence and/or document made in the course of judicial proceedings and had been properly and regularly used for the proceeding. Since the impugned statements had been expunged and no longer part of the proceedings and was not even used for the purpose of the proceedings before the Session Court, the defence of absolute privilege is no longer available to the 1st Defendant. [12] Learned counsel for the 1st Defendant on the other hand posited that the fact that the impugned statements had been expunged by the Sessions Court does not preclude the 1st Defendant from the protection of absolute privilege. Learned counsel for the 1st Defendant relied on S Ashok Kandiah & Anor v. Dato’ Yalumallai Muthusamy & Anor (supra); Cornelius Jimbangan v. Joseph Crispin & Anor; Michael Persius Ubu (Third Party) [2009] 10 CLJ 87; Mahadevi Nadchatiram v. Thiruchelvasegaran Manickavasegar [2001] 3 CLJ 65. [13] Before discussing the case law cited by learned counsel from both side, it is pertinent for us to look at the impugned statements contained in the 1st Defendant’s Statement of Defence which was expunged by the Sessions Court to see whether they were of defamatory in nature. Those statements were as follows: Paragraph 5: “Defendan Pertama menegaskan bahawa kebanyakan kakitangan Defendan Pertama mengenali Plaintif Pertama dan Defendan Kedua sebagai suami isteri seperti mana yang diketahui umum.” 6 Paragraph 8: “Defendan Pertama menegaskan bahawa Plaintif Kedua adalah seorang individu yang mempunyai isteri dan anak-anaknya melalui perkahwinan yang sah, dan Defendan Pertama dan kakitangannya pula hanya mengenali Plaintif Pertama dan Defendan Kedua sebagai suami isteri, pada segala masa yang material. Defendan Pertama memohon Plaintif Kedua untuk mengemukakan butiran berkenaan perkahwinannya yang sah dan anak-anaknya, semasa perbicaraan tindakan ini untuk membuktikan kepada Mahkamah, berkenaan sebab pertelingkahan dan pergaduhan berlaku di antara Plaintif Kedua dan Defendan Kedua. Defendan Pertama menegaskan bahawa pertelingkahan di antara Plaintif-Plaintif dan Defendan Kedua berlaku akibat hubungan sulit dan zina (adultery) di antara Plaintif-Plaintif dan dengan itu pergaduhan yang berlaku adalah berada di luar kawalan Defendan Pertama.” Paragraph 9: “Defendan Pertama menegaskan bahawa ianya adalah tindakan Plaintif Ke-2 yang sanggup menetap di dalam bilik yang sama dengan isteri Defendan Ke-2 yang mencetuskan pergaduhan dan pertelingkahan di dalam kes ini. Defendan Pertama tidak mempunyai apa-apa pengetahuan berkenaan hubungan sulit dan zina (“adultery”) di antara Plaintif-Plaintif….” Paragraph 10: “Defendan Pertama menyatakan bahawa Penyambut Tetamu Defendan Pertama telah memberikan kad akses kepada Defendan Ke-2 dengan anggapan bahawa Defendan Ke-2 ingin berjumpa isterinya yang menetap di bilik no: 1809, pada hari tersebut dan Penyambut Tetamu Defendan Pertama tidak mempunyai pengetahuan berkenaan hubungan sulit di antara Plaintif-Plaintif. Defendan Pertama tiada apa-apa niat lain selain membantu Defendan Ke-2 untuk pergi berjumpa dengan isterinya, yang dikenali oleh Penyambut Tetamu.” 7 Paragraph 11: “Defendan Pertama menegaskan bahawa Defendan Pertama tidak pernah berdepan dengan kes melibatkan hubungan sulit yang ditangkap, sepertimana kes ini.” Paragraph 12: “Defendan Ke-2 telah amat marah dengan tindakan Plaintif Pertama yang didapati menjalin hubungan sulit dengan Plaintif Ke-2 yang juga adalah seorang yang telah berumahtangga. Defendan Pertama percaya bahawa Defendan Ke-2 akan mengemukakan Pembelaan yang sewajarnya berkenaan hubungannya dengan Plaintif Pertama…” [14] It was the Plaintiffs pleaded case that those statements by the 1st Defendant were diverted from the subject matter of the Plaintiffs’ claim against the 1st Defendant which was premise on tort of negligence. It was alleged that during the commotion, the Plaintiffs was assaulted by the 2nd Defendant after breaking and entering into hotel room occupied by the Plaintiffs due to the negligence conduct of the 1st Defendant. We agreed with learned counsel for the Plaintiffs that the impugned statements were baseless, frivolous, vexatious and embarrass the Plaintiffs and was rightly expunged by the learned Sessions Court judge. For that there was no appeal against by the 1st Defendant. [15] The law on striking out under Order 18 rule 19 of ROC 2012 is settled. A pleading should only be struck out if it is shown that it is on the face of it obviously unsustainable. It is only in a plain and obvious case this drastic power will be exercised by the Court with the utmost caution. In the most often cited case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, the Supreme Court said at page 11: 8 “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [16] In Solai Realty Sdn Bhd v. United Overseas Bank (Malaysia) Berhad [2013] 4 MLJ 545 this Court through Ramly Ali, JCA (as his Lordship then was) said: “Judges dealing with striking out application under Order 18 rule 19 of the RHC must always bear in mind that the power to strike a case under the Order without having to go for trial should be exercised sparingly and only in a plain and obvious case. The procedure is of a summary. The party affected should not be deprived of his right to have his case proceeded by a proper trial unless the claim is obviously unsustainable. The Federal Court in the case of C.C. Ng & Brothers Sdn Bhd v. Government of State of Pahang [1985] CLJ Rep 45; [1985] 1 MLJ 350, had said that “the inherently power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with 9 utmost caution”. It is a power which ought to be very sparingly exercised and only in very exception cases (per Lord Herschell in Lawrence v. Norry – as cited C.C. Ng & Brothers).” [17] Learned counsel for the 1st Defendant supported the learned trial judge’s finding that the defence of absolute privilege was available to the 1st Defendant. The learned trial judge as alluded to earlier relied on S Ashok Kandiah [supra] and Ayob Bin Saud [supra]. Learned counsel for the 1st Defendant further relied on Cornelius Jimbangan [supra] and Mahadevi Nadchatiram [supra]. In the later, James Foong J (as he then was) held that the submissions of defendant, however defamatory they were of the Plaintiff, are protected by absolute privilege on the ground that these documents must be considered to be made in the course of legal proceedings. [18] In Cornelius Jimbangan [supra], involving third party proceedings brought in by the defendants into the suit. The third party counterclaimed against the defendants for damages and pleaded that the defendants’ allegations in their statement of claim in the third party proceedings were baseless, malicious, defamatory and calculated to disparage him in his profession as an advocate and solicitor. The defendant on the other hand contended that the matters alleged by the third party to be defamatory were published on occasion of absolute privilege and therefore not actionable in a court of law. Abdul Rahman Sebli, JC (now JCA) agreed with the defendant’s contention that the defendants’ statement of Claim fell squarely within the category of absolute privilege and were therefore insulated from defamation action. 10 [19] In Ayob Bin Saud [supra], one of the issue raised was on publication of a letter written by the defendant to a third party containing the following paragraph: “I am surprised that a Chinese Surveyor was charged $1,450

The position and standing of the plaintiff.

The extent of the publication.

The mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel.

The uncertainty undergone in the litigation.

The conduct of the defendant from the time of the libel down to the very moment of the verdict.

The absence and refusal of correction, retraction or apology. In our view the extent of the publication is one of the relevant factors. In this case the defamation was confined to a small circle of people, that is, the court staff and those present in the Seremban High Court. It was not a publication to the public at large. We agree that the allegation of incest against the respondent was a serious one and certainly would have caused distress etc to the respondent as a result thereof. However, we were advised that there was an attempt to settle but unfortunately failed possibly because of the strong personalities of the parties. Be that as it may, as stated earlier in this judgment, the root cause of all the problems is the squabbles amongst the siblings of the deceased over the distribution of the properties left by their deceased father.” 12 [23] The case of S Ashok Kandiah [supra] relied by the learned trial judge in his ground of judgment as well as the case of Mahadevi Nadchatiram [supra] was decided after a full trial. There is a lot of difference from the present case before us. The two earlier cited cases above was never decided summarily. What matter most was that in the present appeal, the impugned statements had been expunged and no longer before the cognisance of the Court. Furthermore, the 1st Defendant’s refusal to retract the impugned statements upon Plaintiffs’ request goes to show malice and bad faith on the part of the 1st Defendant. We are of the view that the issue whether the 1st Defendant entitled to the defence of absolute privilege should be decided by the learned trial judge after a full trial. [24] Based on the facts and the pleadings filed in the instant case and based on competing affidavits and arguments of the parties, we are of the view that the present case is not a plain and obvious case for striking out under Order 18 rule 19 of the ROC 2012. We are also of the considered view that the present case is not frivolous, vexatious or may prejudice, embarrass or delay the fair trial of the action or that the pleadings are otherwise an abuse of the process of the Court. [25] Based on the aforesaid, we unanimously allowed the appeal with cost of RM10,000 here and below to be paid by the 1st Defendant to the Plaintiffs within 14 days subject to payment of allocator fees. We ordered the deposit to be refunded. The order of the High Court is set aside and the matter is reverted back to the High Court for a full trial. 13 [26] We therefore ordered accordingly. Dated: 15 July 2019 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel For the Appellants/Plaintiffs: Raam Kumar (Norleena Jamal, with him) Messrs K.B. Tan, Kumar & Partners No. 11C, Jalan Wan Mohd Salleh Greentown 30450 Ipoh PERAK For the Respondent/1st Defendant: James Huntzen Ong (Sukhvinder Singh Sidhu, with him) Messrs Chan & Associates No. 1, 1st Floor, Jalan Tun Sambanthan 30000 Ipoh