1. ) Dato' Sri Lai Cha Suang @ Jessy Lai v XXXX (WA-23CY-30-06/2019)

The Plaintiffs in this case are claiming for damages for loss of reputation as a result of defamatory statements made by the Defendant against them. Brief facts

The 1st Plaintiff is an individual and a substantive owner of the 2nd Plaintiff which is a limited liability company incorporated under the Companies Act 1965. The Defendant is a Member of Parliament and a member of the Democratic Action Party (DAP).

In the Statement of Claim (SOC) the Plaintiffs highlights 5 statements made by the Defendant which they allege are defamatory, publicised in various news portal at different times.

One statement was made on 13/5/2017 in the news portal called “Kwong Wah Jit Poh”. 2 statements were made on 23/5/2017 to a reporter from the publication called Free Malaysia Today. Another statement was made on 18/11/2018 in a recorded video shown on

Apart from making the statements the Plaintiffs allege that the Defendant had instigated 19 Chinese Nationals to lodge police reports against the Plaintiffs for cheating them and leading a demonstration in front of the office of the Plaintiffs.

The Plaintiffs alleges that the statements and the conduct of the Defendant had led the Plaintiffs reputation to be tarnished as well as painting the image of Plaintiffs as criminals, law breakers and of carrying out illegal activities. The purported statements

In determining the purported statements made the Court looked at the SOC which details out the purported statements made. There is no necessity to reproduce the entire statements but will suffice if the statements are summarised to reflect what was said.

The first statement which is alleged by the Plaintiff to be defamatory to the Plaintiff is an accusation by the Defendant that the Plaintiffs had avoided being blacklisted by the Central bank because they had bribed senior government officials as well had given protection money.

The 1st statement also contains accusation made by the Defendant that the subsequently the 2nd Plaintiff was blacklisted because the Plaintiffs had stopped paying bribes and protection money or the senior government officials had upped the stake and demanded higher bribes and protection money.

It can therefore be summarised that in the first statement itself they are 2 accusations made by the Defendant against the Plaintiffs which relates to giving of bribes and protection money to government officials.

The 2nd alleged defamatory statement is an accusation by the Defendant that the Plaintiffs are carrying out illegal activities which has resulted in losses suffered by a group of Chinese Nationals.

The 3rd and 4th alleged defamatory statement apart from repeating that the Plaintiffs were carrying out illegal business also added that the Plaintiffs are involved in illegal money transactions.

The 5th alleged defamatory statement is an accusation by the Defendant that the Plaintiffs are not only carrying out illegal business but are also involved in get rich scheme or Ponzi scheme.

In the Court’s view by looking at the SOD filed by the Defendant as well as taking into account the Defendant’s sole testimony in Court, the Defendant has not really challenged making the purported statements to the news portals nor denied that the purported statements were directed towards the Plaintiffs.

The Defendant although denying that he had instigated the demonstration by the 19 Chinese National, did not deny that he had taken part in the demonstration.

It is therefore the Court’s ruling that the Plaintiffs have proven that the Defendant had made the purported statements as stated in the SOC and that the statements were directed towards the Plaintiffs. [ See the case of Ayob bin Saud TS Sambantarmurthy [1989]1

The only issues needing determination by the Court is whether the purported statements are defamatory and whether the Defendant has proven any of the defenses as stated by the Defendant in his SOD. Are the statements defamatory?

In determining whether the statements are defamatory the Court must look at the natural and ordinary meaning of the words used in the statement and must view the statement accordingly.

In the Court’s view the statements made by the Defendant in its ordinary and natural meaning is a clear and direct allegation of bribery and cheating against not only the Plaintiffs but also senior government officials. The statements are not mere innuendos but are direct allegation of serious criminal offences committed by the Plaintiffs. [ See case of Chok Foo Choo @Chok Kee Lianv The

The allegations made by the Defendant most certainly tarnishes and reputation of not only the Plaintiffs but also senior government officials. In short in the Court’s view the statements made by the Defendant defamatory against the Plaintiffs. The Defendant’s defense

In his SOD the Defendant has raised 3 defenses to wit justification, fair comment and qualified privilege and has also given facts supporting his defences.

The Court will not reproduce the details of the defences as stated in the SOD suffice if the facts supporting the defences are summarised.

Under the defense of justification the Defendant contends that the Plaintiffs had pleaded guilty to money laundering charges, for fair comment the Defendant contends that the 2nd Plaintiff had held large-scale events attended by senior government officials as well as the former Inspector General of Police. On fair comment the Defendant also contends that as a Member of Parliament he was duty bound to report the illegal activities of the Plaintiffs.

The Defendant also relies on section 8 and 9 of the Defamation Act

For ease of reference both this provisions are reproduced here. Section 8 states as follows: In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. Section 9 provides as follows: In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

It is trite law that the burden of proving the defences lie upon the Defendant. This is clear from the reading of sections 101 and 102 of the Evidence Act which provides as follows: 1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. (section 101) The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to his possession. Therefore, the burden of proof is on A.

A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. (section 102).

In this case the Court notes that apart from relying on his own testimony the Defendant did not call any other witnesses. When questioned about the source of his information he stated he had sources who informed him about the misdeeds of the Plaintiffs, which included government officials. However these sources were not identified nor called to testify. In short, the source of information who has informed the Defendant cannot be verified by the Court or be cross examined by the Plaintiffs.

In failing to call this witnesses to testify in Court, the Court rules that an adverse inference against the Defendant is raised by virtue of section 114 (g) of the Evidence Act 1950 which provides as follows: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. The court may presume:-

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

Next, in considering the oral testimony of the Defendant, the Court found the Defendant’s testimony to be merely self-serving and speculative. As an illustration the Defendant speculates that no action was taken against the Plaintiffs for many years as they had managed to bribe senior government officials. Then when action is taken to blacklist the 2nd Plaintiff the Defendant again speculates that action was taken against the Plaintiffs as the government officials had demanded a higher amount of bribe and were not satisfied with the amount of bribe given.

The Defendant also alludes to certain events involving the Plaintiffs to support his defences. At least 3 events have been highlighted.

The first event according to the Defendant, is the 2nd Plaintiffs habit of hosting lavish events attended by senior govern officials, celebrities and even a former Inspector General of Police. If the Defendant’s insinuates that the presence of this senior officials at this events is a proof that they were bribed, then in the Court’s view this insinuation is not only farfetched but also illogical, and a mere figment of the Defendant’s imagination.

The 2nd event alluded by the Defendant is the 2nd Plaintiff pleading guilty to money laundering charges. The Court takes judicial notice that the Plaintiffs had pleaded to money laundering charges and were subsequently sentenced and even blacklisted by the Central Bank.

However the Court also takes judicial notice of the fact and this also an undisputed fact that the Plaintiffs have never been charged for bribing government officials under any Penal law. The allegation of bribery in the Court’s view remains a mere speculation by the Defendant.

Another event allude to by the Defendant is the police reports lodged by the 19 Chinese Nationals. The Court notes that 19 similar reports have been lodged against the Plaintiffs. However again there is no evidence that the police have completed their investigations and have arrived at a finding. The glaring fact is however that the Plaintiffs have never been charged for cheating the 19 Chinese nationals nor the Plaintiffs have been charged for carrying out Ponzi schemes.

A final salvo fired by the Defendant to support and justify his statements is that as a Member of Parliament he is duty bound to bring up matters of public interest. The Court commends the Defendant for bringing up the activities to the authorities. However, the Defendant should have stopped there and allowed the authorities to investigate instead of pressurising the authorities to take action against the Plaintiffs.

In fact, the Court views the actions of the Defendant as akin to a vigilante determined to force actions be taken against the Plaintiffs at any cost. This is evidenced by the fact that the Defendant had taken to the streets with the 19 Chines Nationals to demonstrate in front of the office of the Plaintiffs.

By doing so the Defendant seemed to be taking care of the interest of the 19 Chinese nationals than the interest of his constituents or the nation. The Court is sure that the 19 Chinese Nationals who were intelligent enough to invest with the Plaintiffs could have taken action against the Plaintiffs without the help of the Defendant.

Taking into account the above factors the Court rules that the Defendant has failed to discharge the burden of proof and failed to prove any of the defamatory statements are justified, the truth or covered by qualified privilege.

The Court therefore finds the Defendant liable for defaming the Plaintiffs. The Plaintiffs are entitled to be compensated for the damage to their reputation and image.

It is a known principle that the amount of damages must compensate for the loss suffered by the Plaintiffs and certainly not a means of enriching the Plaintiffs.

There are various factors taken into account in awarding damages to the Plaintiffs in this case. The first factor the Court took into account is the seriousness of the allegations made against the Plaintiffs.

The seriousness of the allegation against the Plaintiff is reflected by the fact that the allegations are multi prong. It paints the Plaintiffs as criminals for carrying out illegal businesses including carrying out Ponzi schemes.

However even more serious is the allegation that the Plaintiffs have avoided action taken against by bribing senior government officials, which by itself a serious offence.

The seriousness of the allegation is multiplied by the fact that senior government officials are implicated as being in cahoots with the Plaintiffs. This not only damages the image of the civil service but also the nation as a whole.

The Court also takes note that any bad publicity will have serious implications on business and even to the country as a whole as this allegation involves foreign nationals. The Defendant in siding with foreign nationals without verification and completion of investigation goes against his role as the guardian of the nation and his constituents in his role as a Member of Parliament.

The Court also feels that the Defendant as a Member of Parliament he must be more responsible in his speech and actions. The Defendant as a Member of Parliament cannot be trigger happy shooting from the hip. By doing so he might have not killed any person physically but he has certainly killed the reputation of the Plaintiffs. [ See case of Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Ultra badi a/l K Perumal [2003] 3 MLJ 281]

The Court also feels that in this case the damages awarded must act as a deterrence. This is not to stifle freedom of speech and expression but as a discouragement for any person making uncalled for and unverified statements, especially in the era of the wide use of social media.

Another reason why deterrence is required is the fact that the courts are inundated with case involving defamation involving all strata of the society from the highest to the lowest.

“See you in court” seems to have become a fashion statement rather than being something to be fearful about.

A final factor which took into account in this case is that the Defendant did not show any remorse for his actions and on converse was combative in his attitude. The Plaintiffs had graciously agreed to settle the matter without going for the full trial with a mere apology, but the Defendant refused this request.

Taking into the above factors the Court ruled that the Plaintiffs have proved their claim against the Defendant directed the Defendant to publicly apologise to the Plaintiffs in the media for the defamatory statements made. The Court also directed the Defendant to pay RM500, 00 as general damages to the 1st Plaintiff. RM1 million to the 2nd Plaintiff and another RM500,000 as aggravated damages.

Finally, the Court awarded a cost of RM250,000 by the Defendant to the Plaintiffs for the cost of proceedings and statutory interest of 5% after judgement. Dated: 18.4.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Chan Tse Yuen & Co. 12A, Jalan Nadchatiram Taman Taynton View Jalan Cheras 56100 Kuala Lumpur For the Defendant: Tetuan Guok Partnership B-3A-3A Gateway Kiaramas Corporate Suites No. 1 Jalan Desa Kiara 50480 Mont Kiara Kuala Lumpur

Ayob bin Saud TS Sambantarmurthy [1989]1 MLJ 315;

Chok Foo Choo @Chok Kee Lianv The China Press Bhd [1999]1 MLJ 317;

Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Ultra badi a/l K Perumal [2003] 3 MLJ 281.