1. ) Chong Hion Choong v Dato' Tony Looi Chee Hong (BA-23CY-8-07/2021)

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1 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 DALAM MAHKAMAH TINGGI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.BA-23CY-8-07/2021

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(19)(1) (a) and/or (b) and/or (c) and/or (d) of the High Court Rules 2012 for the Writ and Statement of Claim dated 28.07.2021 against him be struck out on the basis that Plaintiffs’ claims – i) did not disclose any reasonable cause of action; ii) defective, not clear, and did not fulfill pleading requirements for defamation action; iii) failed to plead purported defamatory statements in their original language and in verbatim; 6 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 iv) failed to plead and particularise the purportedly defamatory statements and provide the meaning of those words; v) purported defamatory statements pleaded are confusing, convoluted, and prolix and consist of a jangled mass of complaints. Therefore, it is difficult to identify when and what were the defamatory statements made by Defendant; vi) prejudice, embarrass or delay the fair trial of the action; or vii) obviously unsustainable and an abuse of the process of the Court. [14] Defendant relied on the cases of Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523, Ng Kim Ho V Chai Sze Shin and Others [2006] MLJU 87 and City Team Media Sdn Bhd v Saravanan A/L Murugan [2020] MLJU 1315 to contend that in a defamation suit, the purported defamatory words shall be pleaded in verbatim and in its original language. Failure to do so would be fatal and the Plaintiffs’ SOC would fail to disclose any cause of action. In the three cases cited above, the Courts dismissed Plaintiff’s claims for not disclosing any cause of action and therefore, must fail. [15] It is undisputed that the purported defamatory words were uttered in Chinese as admitted by the Plaintiffs themselves. Nevertheless, this Court 7 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 noted that Plaintiffs have rectified its failure by exhibiting a transcript in the Chinese language together with a certified translation in the Malay language in the Plaintiffs’ affidavit in reply. [16] Nevertheless, Defendant further contends that any defects in the pleading cannot be cured by affidavit evidence as was held in the case of United Malayan Banking Corporation Berhad v Palm and Vegetable Oils (M) Sdn Bhd & Ors [1983] 1 MLJ 206 which made reference to the Federal Court decision in National Company for Foreign Trade v Kayu Raya Bhd [1984] 2 MLJ 300. [17] Unlike the case of United Malayan Banking Corporation Berhad (supra), which has omitted material facts regarding the deposit of the shares as security in the Statement of Claim, which made the SOC defective. In the present case, Plaintiffs did disclose the purported defamatory words in its SOC. From the SOC, Defendant could easily identify that the complaints made are in relation to the statements that he has published through video and Facebook pages that are alleged to be defamatory and he knows the exact claim made against him. The issue, in this case, is merely the claims are not pleaded clearly and do not observe the rules of pleading applicable for a defamation action. 8 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 [18] Furthermore, Plaintiffs claim that its SOC was based on facts and law which disclosed a reasonable and continuing cause of action against Defendant. Plaintiffs’ contention is Defendant has clearly and obviously, made defamatory statements against the Plaintiffs. Those defamatory statements have been clearly pleaded in detail in paragraphs 21 to 31 of the SOC. [19] In this respect, this Court accepts the reason given by the Plaintiffs that the purported defamatory words were not prepared in their original language, but prepared in the Court’s language, in Malay. This Court is also satisfied that the translation in the Malay language has clearly reflected the defamatory statements made by Defendant in his video recordings and his Facebook. The translated defamatory statements have been pleaded in the SOC and are sufficient to disclose a reasonable cause of action. This Court finds support in the case cited by the Plaintiffs Dato’ Seri Tiong King Sing v Datuk Justine Jinggut [2003] 6 MLJ 433 in which the Court has held as follows:- “(1) Although the alleged defamatory words were not stated in the statement of claim in the original language in which they were so published, such publication was specifically referred to in the statement of claim. The publications had been sufficiently identified. The translation of the alleged defamatory words in the language of 9 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 the Court in the statement of claim constituted a sufficient cause of action for the purpose of striking out application. The omission to plead the actual words so spoken or published was not a fundamental defect which would nullify the pleadings. The question of whether the exact words complained of, which were in Chinese in the instant case, should be set out in the statement of claim, was not an issue for determination in an application to summarily strike out. Whether the same was the correct or accepted translation of the original publication was a question of fact to be determined at the trial upon examination of witnesses. The defendant was entitled to put the plaintiff to proof of all facts alleged in the statement of claim by the production of the original publications and by the examination of witnesses. It was open for the defendant to provide the court with his alternative version at the trial. This was not a plain and obvious case where the plaintiff’s writ and statement of claim could be struck out for want of cause of action.” [20] Defendant further submits that the SOC failed to plead and particularise the purported defamatory words against Plaintiffs and failed to plead the meaning of such purported defamatory words. Henceforth, the purportedly defamatory statements as pleaded by Plaintiffs in paragraphs 21 – 30 of the SOC are confusing convoluted, prolix, and 10 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 consist of a jangled mass of complaints and clearly prejudices, embarrass or delay the fair trial of this matter. [21] Basically, the challenge made by the Defendant against the SOC is that it is unsustainable because it was not pleaded according to the pleading format for a defamation suit. Be that as it may, the principle on Order 18 as held in the case of Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 has instructively stated that in any striking out application, a claim should not be struck out unless the case is obviously unsustainable as follows:- “The principle 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 Hubback v Wilkinson [1899] 1 QB 86, p.91), and this summary procedure can only be adopted when it can be clearly seen that 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 11 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 (Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA)….” [22] In the present application, this Court finds that the SOC has raised issues that require serious consideration. Taking into consideration the number of paragraphs and pages reflecting the purported defamatory words, save they were not presented following the format of pleading for a defamation action, the purported defamatory words have on the face of it, disclose some cause of action for the Plaintiff. The challenge on the formatting which can be improved by way of amendment definitely not a case that should be thrown out for want of a certain specific style of pleading. It is only when it is conspicuously clear that the Plaintiffs’ claim, on the face of it, is obviously unsustainable that the summary procedure under O 18 should only be restored. (Sivakumar a/l Varatharju a/l Retanam [2011]6 MLJ 70). [23] Therefore, it is this Court’s considered view that the Plaintiffs’ claims in the present action prima facie, have disclosed a cause for a defamation action, on the basis of facts and law. The translated defamatory statements are sufficient to disclose a cause of action in a defamation suit which should be tried in Court through viva voce evidence. 12 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 [24] Upon examination of the factual background of the case, this Court finds that at all material times, Defendant has the knowledge and is aware that the 1st Plaintiff is well known and recognized as a ‘Dazu’ by the public. The statements made against Plaintiffs are claimed to be defamatory in their natural and ordinary meaning and must be given a meaning in which a reasonable man would understand it by way of a trial in the Court of law. Defendant’s action in making statements through video recordings and publishing on the Facebook page which could be assessed by the general public could imply mala fide on the part of Defendant which at this juncture, the making of it, has never been denied by Defendant in his Defence. [25] For the Striking Out Application, It is pertinent to note that, this Court will not make a determination whether defamation could be proven, or whether it fulfills the requirements for defamation. It is sufficient for this Court to examine the pleadings and determine whether, on the face of it, Plaintiff has some cause of action against Defendant. Upon close scrutiny, this Court finds that the despite the defamatory words not being stated in their original Chinese language which Defendant claims to be fatal, this Court finds that they can be identified and enable Defendant to put up his defense. 13 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 [26] Therefore, this Court will not throw out this case because it does not have an effect on any of the grounds under Order18. On the face of it, these defamatory words, the subject matter of the Plaintiffs’ complaint, have adversely affected and damaged the 1st Plaintiff’s reputation whose business relies heavily on social media. These are serious issues to be tried at a full trial. It was held in Jamal Md Yunos v Teresa Kok Suh Sim [2021] 1 MLJ 438 where the Court of Appeal held as follows:- “(2) The discretion to strike out should only be exercised when it was demonstrated convincingly that the claim was on the face of it, obviously unsustainable. The Court had to be satisfied that there was no reasonable cause of action or that the claim was scandalous, frivolous or vexatious or an abuse of process. If the pleading s disclosed some cause of action or raised some questions which were fit to be tried, the mere fact that the case was weak or not likely to succeed was no ground for the pleadings to be struck out.” Conclusion [27] Taking into consideration that Order 18 of the ROC also empowers the Court to order an amendment, the Plaintiffs’ pleading could be saved by amendment and it is ordered accordingly. 14 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 [28] Based on the foregoing, it is my considered view that this is not a fit and proper case to be struck out summarily as there are serious issues and facts being disputed which should be decided by the Court through evidence of witnesses. I therefore, dismiss the Defendant’s Striking Out Application with costs. Date: 30th August 2022 signed (ROHANA ABD MALEK) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 2 Shah Alam Counsels: Solicitor for the Prayer/Defendant Tetuan Han & Partners Unit No.23-8, Menara Permata Damansara No. 685, Jalan Damansara 60000 Kuala Lumpur Tel: 1700818433 Email: enquiry@hanpartners.com.my Solicitor for the Respondents: Tetuan Calvin Khoo D-05-03, Plaza Kelana Jaya Jalan SS7/13A, Kelana Jaya 47301 Petaling Jaya 50490 Kuala Lumpur Tel: 03-78658071 Email: inquiry@cklaw.co 15 | B A - 2 3 C Y - 8 - 0 7 / 2 0 2 1 Legislation referred Defamation Act 1957 Rules of Court 2012, Order 18 rule 19(1) Cases referred: