1. ) Ifcon Technology Sdn Bhd v Luqmanul Hakim Bin Abd. Rahim (WA-23CY-2-01/2018)

Likewise, on 20.01.2018, another publication was made on a site called antiponzi.livejournal.com titled as ‘Pembongkaran COIN.MY – Scammer, Pemfitnah, Syiah & Penipu’ (https://antponzi.livejournal.com/3272.html) (all postings in paras 3 and 4 collectively, ‘the Postings’): “Jikalau suadara saudari sekalian belum membaca artikel terdahulu, sila baca DI SINI (link) Mari kita berkenalan dengan fake account facebook milik, Encik Ahmad Aliff bin Encik A S Ahmad Shariffuddin (860120-26-5311). Sila lihat gambar screenshot screenshot di bawah… Mengapa kami mengatakan bahawa fake account facebook di atas yang dikenali sebagai Abu Hussain Hairdar adalah milik Encik Ahmad Aliff? Kerana tarikh lahir yang digunakan, hanya lari sedikir dari seorang perempuan yang sedang di usahakan oleh Encik Ahmad Aliff tersebut untuk dijadikan isteri ke-3 nya. Perempuan tersebut, dikenali sebagai Cik Ainul Shakirah binti Shafie. Dia dijadikan rakan kongsi dan BOD oleh Encik Ahmad Aliff di dalam syarikat dummy dia supaya meraka boleh menjadi teman tetapi mesra… Besar sungguh kan… selera Encik Ahmad Aliff yang zakarnya sekecil otaknya? Hendak berbini sampai 3, rumah cukup besar kah? Mari kita lihat rumah jawatan cryptocurrency dikawasan yang sungguh elit, eh…silap, rumah anjing peliharaan scammer jutawan ini. Yang kononya bergambar sambil meletakkan kaki diatas meja di Cendana Condo, Kuala Lumpur. Hakiktanya ianya adalah rumah scammer forex dan bitcoin terkenal tanah air – Dato Berkat Solat. Untuk makluman alamat diatas ialah No. 1108, Jalan BBN 6/1K, Taman Desa Cempaka, 71800 Nilai, Negeri Sembilan. Ianya adalah alamat kediaman sebenar Encik Ahmad Aliff. Kami melihat sendiri yang rumah ini sudah hamper siap renovation nya kini, dinaik taraf dari rumah low cost kepada reban ayam serama yang agak sedikit mewah. Tetapi masih mengekalkan ciri ciri low costnya, maklumlah jutawan humble. Duit berabis pada lifestyle dan kereta serta tiket kapal terbang business class untuk menyakinkan orang dengan scamnya, TETAPI rumah cap ayam kah kah kah… Encik Ahmad Aliff ini sangat berbahaya, golongan syiah ini sangat bahaya. Kerana ini Encik Ahmad Aliff ini sering menggunakan gambar ulama ulama syiah. Termasuk watak didalam pagenya yang dikenali sebagai Abu Fedora 6 Al Turkistani dan juga watak Maulana Kypto. Yang mana kesemua watak watak ini termasuk dirinya, seringkalu mengungkapi kata kata “kamu suka mengkaji”, “kami mengkaji sesuatu ilmu itu”. Kami merasakan, mereka lebih kepada mengkaji bagaimana mereka dilahirkan dari lubang dubur ibu mereka. Kerana mereka busuk. Wallahualam… Berhati hatilah dengan mereka ini, mereka golongan terpelajar, berijazah yang cukup cukup makan. Mereka ini membawa fahaman syiah dan virus syiah. Kawan kawan rapat dan disekeliling Ahmad Aliff itu, kami pasti yang mereka juga adalah syiah kerana terpengaruh dengan Ahmad Aliff dan kekayaan palsunya itu…

In all accounts, the Defendant disputed over the ownership of the account and the author and argued that the Postings were not published by him. As a result, the Plaintiffs had filed this Claim against the Defendant. The Trial [6] The Plaintiffs called five (5) witnesses during the trial, while the Defendant called two (2) witnesses, respectively. Finding and Decisions of this Court [7] Before this Court delving deeper into the discussion on the defamatory statements stated in the Postings, it is of the utmost importance that I deal with the preliminary issue of whether the Postings were made and/or published by the Defendant. i. Whether the Postings were made and/or published by the Defendant? [8] Throughout the trial, the defamatory implication of the Postings was never denied by the Defendant. Nonetheless, the Defendant argued that he was not the one who made and published the Postings. The Defendant premised throughout the trial that the individual who posted the defamatory statements only ‘appears to be somebody like the Defendant’. This was testified by SD2, who is the Defendant himself in this Claim. [Notes of Proceeding (NOP) at pages 425-427) You say, 5 different individual with the name of Luqmanul Hakim. Did they this all Luqmanul Hakim, did they come with all same pictures? SD2: No. What are you trying to tell? SD2: No. What are you trying to tell? SD2: Because you have said, because you have said, there are 5 Luqmanul Hakim, so which one? … So agree with me, this Luqmanul Hakim, the 5 Luqmanul hakim that appears in the facebook are different individual? SD2: I don’t know … The photograph appearing somebody like you, do you agree with me? SD2: Seems like me. And the name also similar to your name? Agree with me? SD2: Seems like me. Seems like you ya? SD2: Ya. And the name describing was the name also similar to the name of your name, agree with me? SD2: I agree.

The Defendant further contended that the Plaintiffs had failed to prove to this Court that it was the Defendant who owned and/or control the Facebook account and the Livejournal blog. The Plaintiffs also failed to call crucial witnesses that may provide a relevant answer to whom the Facebook account and the Livejournal blog belong. Here, the Defendant invoked Section 114(g) of the Evidence Act to support his contention.

In response, the Plaintiffs have relied on direct and indirect evidence that indicates that it was actually the Defendant who owned the Facebook account and the LiveJournal blog. Firstly, the Plaintiffs called 2 witnesses to identify the Defendant and it was the testimonies of these 2 witnesses that they have contacted him through the Facebook account, ‘Luqmanul Hakim Abd Rahim’ and later met him in person in real life. The first witness was SP1 who testified that the Defendant had contacted her 8 using the Facebook account to purchase ‘Sambal hitam’. During the examination in chief, the Plaintiffs’ counsel had an additional question to SP1: [NOP at page 9] Saya rujuk kepada penyata saksi di soalan 6. Dalam jawapan puan kata pernah berhubung dengan Defendan dan pernah jumpa betul tak? SP1: Betul Adakah Defendan, orang jumpa itu ada di Mahkamah hari ini? SP1: Ada.

SP1 further confirmed and explained that she had met with the Defendant to deliver the ‘Sambal hitam’ during cross-examination: [NOP at pages 19 – 20] Ok Puan, soalan no. 6 penyata saksi, Soalan dia adakah Puan pernah berhubung dengan Defendan di luar facebook. Jawapan dia ya, betul saya pernah berhubung dengan Defendan di luar facebook ketika menghantar produk saya yang dipesan oleh Defendan di tepi padang kelab bola Ampac, Bandar Baru Bangi, Selangor. Bagaimana makanan itu dihantar kepada Defendan? SP1: By hand. By hand? SP1: Saya jumpa dia dengan kakak dia … Soalan no. 10 Puan. Di sini apakah kesan daripada tindakan Puan dengan tidak berkawan atau unfriend Defendan di facebook. Puan mengatakan saya pernah dikomen dalam facebook akaun Defendan menerusi Ponzi Sceme Alert in Malaysia sebagai seorang tidak professional apabila keluar daripad senarai rakan facebook beliau. Berikut adalah petikan daripada terbitan ambil daripada laman facebook. Saya rujuk pada mukasurat 32, Jilid 3. Adakah ini yang Puan maksudkan petikan daripada mukasurat 32. SP1: Betul. Tapi Puan tak pasti yang ini Luqman lah? SP1: Saya pasti itu dia. 9 [12] The next witness was SP3 who testified that the Defendant had offered assistance in obtaining public donation to help in paying for her legal fees. SP3 also further confirmed that she had met with the Defendant and was sure that the owner of the Facebook account ‘Luqmanul Hakim Abd Rahim’ was the Defendant. SP3 during re-examination testified this: [NOP at pages 156 – 157] Puan boleh saya tanya soalan seterusnya, puan telah ditanya sama ada puan membuat pengesahan bahawa sama ada laman fb yang menunjukkan nombor akaun dan juga mengutip dana bagi membantu itu adalah kepunyaan En. Luqman. Puan kata tidak walaupun testimony puan dalam Mahkamah ini adalah bahawa laman fb itu adalah kepunyaan En. Luqman. Boleh terangkan kenapa tidak? SP3: Saya dah berjumpa dengan Luqman. Luqman yang bersetuju untuk membantu saya dalam kos guaman. Segala aktiviti pengutipan atau nak kumpul dana itu berlaku di fb dia dikongsi di fb lain. Jadi saya dah jumpa orangnya, kita dah berjumpa, kita pun dah tahu facebook dia dan dia meletakkan sendiri nombor akaun situ. Jadi saya nak soal pada siapa sebenarnya

Based on the testimonies above, I am with the Plaintiffs. Although it is a norm that a report from the Malaysian Communications and Multimedia Commission would be useful and crucial to identify the tortfeasor in such situation, the Plaintiffs’ case here is uniquely different. To begin with, both SP1 and SP3 had managed to identify and relate the Facebook account user who goes by the alias ‘Luqmanul Hakim Abd Rahim’ with a real-life person, namely the Defendant. Thus, there is direct evidence given by SP1 and SP3 in identifying the Defendant, and the onus to prove otherwise is shifted to the Defendant.

This Court find valuable guidance from the Court of Appeal case of Dato’ Sukri Hj Mohamed v. Wan Muhammad Azri Wan Deris [2016] 4 CLJ 654. The plaintiff in that case had made an appeal to the trial judge decision in which the trial judge rejected the testimonies of the witnesses as it was not supported with any documents. The Court of Appeal had overruled the High Court decision and had decided the following: 10 “[14] In our opinion the learned judge had misdirected himself on the law to reject the direct evidence of the oral testimonies of the witnesses that had clearly shown that they knew the respondent as a blogger who blogs using a pseudonym ‘papamogo’. The learned judge gave no reason whatsoever as to why the oral evidence of the witnesses referred to the above ought not to be believed except to say that the witnesses did not have any documentary evidence to support their claim that they knew the respondent. In our view it is reasonable to infer that in the world of bloggers it is highly probable that a blogger knows the other blogger next to him or her. This probability is real because blogs are circulated in virtual space and they are widely read. It is not something that is unusual or unthinkable that sometimes bloggers do engage in virtual debate or argument and respond to each other over issues which attract public interest such as corruption and misuse of power or position by public officials or public figures. The learned judge in our view had completely ignored the provision of ss.59 and 60 of the Evidence Act 1950 (Act 56). Section 59 says all facts, except the contents of documents may be proved by oral evidence; and s 60 provides that oral evidence shall in all cases whatsoever be direct.” [Emphasis added]

In a similar vein, in our present case not only SP1 and SP3 were in contact with the Defendant via the Facebook account ‘Luqmanul Hakim Abd Rahim’, both witnesses have testified that they had met with the Defendant in person. Thus, I am agreeable with the Plaintiffs that the Defendant was indeed identified in person by SP1 and SP3.

Furthermore, in conjunction with SP1’s testimony, the Plaintiffs contended that based on a receipt ijual.my from the transaction between the Defendant and SP1 it was stated the name of the Defendant, his company (TechieAngel Partners Sdn Bhd) and email address. The receipt was produced in the Common Bundle of Documents (CBOD) Vol. 2 at page 27. It was submitted by the Plaintiffs’ counsel that, TechieAngel Partners Sdn Bhd was indeed owned by the Defendant. This is based on the SSM search conducted by the Plaintiffs and was produced in CBOD Vol. 4 at page 32 where the Defendant was listed as one of the directors of the company. 11 [17] Moreover, it was also submitted by the Plaintiffs that the CIMB bank account that was used for the public donation to assist SP3 was also owned by the Defendant. The CIMB bank account was posted at the end of the Postings:

The Defendant had admitted that the CIMB Bank account was his. This is listed in paragraph 11 of the parties agreed facts (Enclosure 31): “11. Defendan merupakan pemilik kepada no akaun CIMB no.:7004471887.”

Next, the Plaintiffs further asserted that section 114A of the Evidence Act 1950 is applicable to presume that the Defendant was the owner the Facebook account, administrator of the Ponzi Scheme Alert in Malaysia and the owner and the administrator of the Livejournal blog. Section 114A of the Evidence Act 1950 says: “Presumption of fact in publication 114A. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to published or re-published the contents of the publication unless the contrary is proved.

Q. Can you provide the breakdown of the total revenue according to the months prior and post publication of Defendant post in Facebook and Blog? A. Yes. The breakdown of the total revenue based on Statement of Comprehensive Income according to the months prior and post publication of the Defendant post in Facebook and Blog is as follows: Financial Period Revenue (RM) 30 July 2017 42,306.36 31 August 2017 (21,285.37) 30 September 2017 (85,748.49) 31 October 2017 (39,609.28) 30 November 2017 (82,247.42) 31 December 2017 897.54 30 January 2018 (26,653.59) [55] However, with all due respect, the explanation from SP2 did not address the issue at hand. The numbers quoted in the table are the month-end figures after netting off the operating and administration expenses and expenditure (for example, rentals, salaries, or even training fees) of the 1st Plaintiff. That is not the sale revenue of the company. The revenue of a company is the collection/ sale of the company. In all fairness, the operating and administration expenses and the finance costs of the company should not be accounted in determining how far the Postings have impacted the company. The 1st Plaintiff Statement of Comprehensive Income for each month (throughout the relevant period of time) which was tendered in CBOD Vol. 4 at pages 37 – 50 has clearly shown otherwise through the ‘Sale Revenue’ recorded. For ease of reference, I list here in the table below my finding of the Sale Revenue of the 1st Plaintiff from the statement: Financial Period Revenue (RM) 30 July 2017 79,600.00 31 August 2017 12,800.00 25 30 September 2017 12,800.00 31 October 2017 28,099.00 30 November 2017 12,800.00 31 December 2017 396,050.00 30 January 2018 63,631.23 [56] Looking at the table above, there was no significant loss of revenue suffered by the 1st Plaintiff due to the Postings (which were posted in the month of September and early October 2017). While there was no increase or decrease in the month-end sale revenue between the month of August and September 2017, the was a significant increase (more than double) in the month-end revenue between September 2017 and October 2017. Similarly, between 31 December 2017 and 30 January 2018. It would be different if the month-end sale revenue in the months succeeding actually dropped or decreased from the month end sale revenue of August 2017 (the month before the publication of the Postings). Since only the month-end-accounts of these 7 months were tendered by the Plaintiff, nothing can be analysed beyond January 2018. Therefore, it is this Court’s finding that the Postings do not injuriously affect the pocket of the 1st Plaintiff, and hence, do not injuriously affect the 1st Plaintiff. Thus, the damages claimed by the 1st Plaintiff is bound to fail. vi. Damages-The 2nd and 3rd Plaintiffs [57] Now, the question arises whether the 2nd and 3rd Plaintiffs are entitled to general damages and/or special damages against the Defendant for the impugned statements under the Postings. In order to determine this, this Court will look into a few factors that will weigh the 2nd and 3rd Plaintiffs’ claim for damages. In the Court of Appeal case of Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar [2001] 3 CLJ 65, His Lordship Haidar Mohd Noor JCA (as he then was) held that (at p. 96) in considering an award for damages for defamation, the established factors set out by the Federal Court in MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun [1995] 2 CLJ 912 should be observed: “1. 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; and 6. The absence and refusal of correction, retraction or apology” [58] Likewise, in the recent Federal Court decision in Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2018] 1 CLJ 145 it was decided that (at p. 213): “[82] In the present appeal, the learned trial judge had considered the seriousness of the libel, the extent of the publication, the plaintiff’s reputation and the adverse effect of the defamatory statements on his dignity and reputation, and the conduct of the defendants including absence of remorse for defaming the plaintiff and in urging the court not to award any damages or costs to the plaintiff, all of which the learned trial judge was entitled to take into account in assessing damages. Then, there is the award in MGG Pillai’s case which we have to put into the scale to consider the award made by the learned trial judge. Whilst we are not prepared to share the Court of Appeal’s view that the learned trial judge had not been influenced by the award in MGG Pillai, he would have awarded the global sum of RM1 million to the plaintiff for compensatory, aggravated and exemplary damages. This, in our view, warrants appellate interference.” [Emphasis added] For that, this Court shall now examine few of the relevant considerations mentioned in MGG Pillai (supra). a. The Position and Standing of the 2nd and 3rd Plaintiffs [59] Generally, it is presumed that one man’s reputation is always good. As discussed in Defamation Law, Procedure & Practice (Third Edn.) by David Price and Korieh Duodu at pp. 210 – 211 where: “It is presumed that the claimant has a good reputation. However, the extent of that reputation will vary. Juries, in particular, tend to award larger damages to well-known personalities than to ordinary people who perhaps for once in their lives find themselves in the news. This is a little unfair because the reputation of a celebrity tends to be more resilient and able to withstand the odd defamatory publication. Furthermore, in certain cases, there is an argument that ‘all publicity, is good publicity”. The presumption of a good reputation may be rebutted by the defendant calling evidence to show that the claimant has a bad reputation. If this is proved damages will be reduced…” [Emphasis added] [60] In our present case, the 2nd and 3rd Plaintiff are businessmen who involve in drones and the IT business. Thus, in this case, it is presumed that the 2nd and 3rd Plaintiff are respected individuals with a good reputation and a high social standing. As mentioned, the burden then shifted to the Defendant to negate this. This the Defendant has not done so in our present case. b. The Gravity of the Allegation [61] In considering this factor, it is my finding that the gravity of the postings was extremely serious, derogatory, and reputation blemishing, tarnishing and degrading. The defamatory remarks about the 2nd and 3rd Plaintiff in the Postings cast muddy and besmear on their character and reputation. The Plaintiffs premised that, and I agree, the Postings had painted the following:

The business conducted by the 2nd and the 3rd Plaintiff involved a scam investment;

The 2nd and 3rd Plaintiff also involved with an alleged well-known scammer i.e., Dato Fadino and Dato Zaimi Azmi;

The 3rd Plaintiff involved in a scam which if arrested will be jailed in prison;

The 2nd and 3rd Plaintiff was dishonest and incompetent in running their business;

The 2nd and 3rd Plaintiff should not be trusted;

The 2nd Plaintiff is a snobbish, stupid person and from the low class of India kasta;

The 3rd Plaintiff is a spoil son (biawak hidup) in which his life to dependable to his father to give project to the first Plaintiff to survive;

The 2nd Plaintiff is a person who like to use a religion to justify his illegal motive of the 2nd Plaintiff

The drone product business run by the Plaintiffs was a non-quality product (cap ayam) and it does not fly nor function as a drone;

The 2nd Plaintiff is a public burden (sampah masyarakat);

The Plaintiffs was involved in a smuggling business which is against the law in which is not encourage and scared the public to purchase any of the Plaintiff’s product;

The 2nd Plaintiff is a poor person and no money currently living in a small house as small as a chicken barn;

The 2nd Plaintiff is a shiah follower and a dangerous person;

The 2nd Plaintiff is a stink and dirty person which come from his mother ass; and

All the 2nd Plaintiff friend and acquittance is a shiah follower after being influence by the 2nd Plaintiff. [62] The English Court of Appeal in John v MGN Ltd [1997] Q.B. 586 at 607, has articulated the following, regarding the gravity of libel: “in assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be.” [Emphasis added] [63] In line with the case above, the Postings made by the Defendant had undeniably touched on the 2nd and 3rd Plaintiffs’ integrity, credibility, personal and professional reputation, and other core attributes of their personalities. c. The Extent of Publication [64] Another matter that this Court must consider is the extent of the publication. As discussed, statements that were posted or ‘tweeted’ on social media, are considered to be published. In Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, the claimant had brought a claim of libel against the defendant in respect of ‘tweets’ complaining they the claimant had vandalising a war memorial and desecrating the memory of those who fought for her freedom. The counsel of the defendant submitted that alternatively that there was only a small publication and mostly made of the followers of the parties. However, Warby J opined that it is enough to assess the overall scale of publication of the tweets, which is an estimation of around 20,000 impressions from the first tweet and 40 re-tweets from the second tweet are clearly substantial. (As a side note, at the time of this judgment, the case of Monroe v Hopkins (supra) is pending its appeal but still the discussion is relevant to our present case) [65] Similarly, in Dato’ Seri Anwar Bin Ibrahim (supra) where it was held that at p. 619: “[44] In the case of S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173; [1988] 1 CLJ Rep 233, said: In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the plaintiff. By publication, it is meant the making known of defamatory matter, after it has been written, to some person other than the person to whom it is written, the uttering of a libel to the party libeled is no publication for the purposed of a civil action: Wenhak v Morgan… [45] In our case the defamatory statements were published in the website www.papagomo.com i.e. in the internet and the people all over the world can get access to the website meaning that there was a wide publication of the defamatory statements. [46] It is a judicial notice that the internet is used worldwide. [47] Applying the above principles to the present case, there is no doubt that the online defamatory statements or published on the internet amounts to publication.” [Emphasis added] [66] The gravity of such comment or posting on the social media was also raised in the National Union of Bank Employees v Noorzeela bt Lamin [2014] 7 MLJ 31 at p. 72 where the court expressed that: “As regards the Facebook webpage with its defamatory comments, the court is of the view that this is equally serious. In this day of social media networking, a comment posted on one’s Facebook page has the ability to reach a large number of persons in a short space of time.” [Emphasis added] [67] Thus, as discussed above, there is obvious traction in the Postings, and it had significantly led to the unsavoury comments and humiliation received by the Plaintiffs. And as the Plaintiffs’ counsel had put and submitted, the first result of ‘google search’ for each of the Plaintiffs will be the Postings published in Defendant’s personal blog, https://antiponzi.livejournal.com/1165.html. Thus, this shows also the extent and the gravity of the Postings. d. Remorse [68] This Court also find that rather than apologizing or correcting his statement the Defendant had adamantly denied that it was him who made or wrote the Postings. Thus, the Defendant has shown no remorse in publishing the Postings. e. Quantum [69] The Plaintiffs submitted that the quantum of damages should be RM3,000,000 as the allegation stated in the Postings was too grave and with the ill-intention to tarnish the Plaintiff’s reputation. Besides, the extent of publication should also be taken into account as it was posted on the Defendant’s Facebook account, Facebook public group and Livejournal blog. The Plaintiffs also contended the quantum reflected the position and standing of the Plaintiffs as a well-known drone business and IT Supplier. To this, the Plaintiffs referred several cases to support their contention, such as MGG Pilai (supra) and Datuk Seri Utama Dr Rais bin Yatim v Amizudin bin Ahmat [2012] 2 MLJ 807. [70] To refute, the Defendant submitted that the quantum to be awarded should be RM10,000 because the social standing of the 2nd and 3rd Plaintiffs were not that well-known. They are just businessmen and directors of the 1st Plaintiff. The Defendant referred to the case of Dato’ Annas Bin Khatib Jaafar v Sharifuddin Mohamed & Ors [2016] 8 MLJ 180 where the court awarded RM30,000 as general damages against the first and second defendants and RM10,000 as general damages against the third defendant. [71] Based on the parties’ submissions, I agree that the award should be higher than the amount prayed by the Defendant. In Dato’ Annas (supra), the defamatory statements were printed and published in media/newspapers i.e., the Harian Metro. However, in our present case, the Postings were published and posted on the Internet and social media i.e., Facebook and blog. Thus, such postings are there permanently and would be spread as wide as possible. They would be read at anytime by anyone in the global community. This Court cannot turn a blind eye to the prolonging impact of the Postings. Since the Postings were published on the internet, it cannot be undone as ‘the Internet never forgets.’ [72] In Masyitah Bt Md Hassan v Sakinah bt Sulong [2021] 7 MLJ 144, exemplary damages was awarded by the court to punish the wrongdoer for her contumelious and reprehensible conduct. This was held to be in disregard of the plaintiff’s rights. Evrol Mariette Peters JC (as she then was) expressed her hope that this would act as a deterrent to others who are contemplating conduct of a similar nature. [73] The same is the position in our present case. The publication of irresponsible writings in the social media should be deterred so that similar libel and ignominy would not happen in the future. It is implored that all netizens will take accountability reporting and investigative journalism more seriously. [74] Moreover, looking at the nature of the Postings, I also agree with the Plaintiffs that the Postings were full of obscenity and vulgarity which makes evident to this Court that the Defendant’s conduct in publishing the Postings is heedless, irresponsible and ill-manner. I am also of the view that the 2nd Plaintiff would suffer disparagement more than the 3rd Plaintiff. This is because the defamatory remarks against the 2nd Plaintiff were more downgrading and heinous against him. For example, the remarks in the Postings accusing the 2nd Plaintiff as a ‘snobbish, stupid person and from the low class of India kasta’, ‘a Shiah follower and a dangerous person, and ‘a stink and dirty person which come from his mother ass’ should be taken into consideration. All these remarks are too grievous and atrocious to be taken lightly by this Court. [75] Indeed, as observed by Varghese George J (as he then was) in Lim Guan Eng v Utusan Melayu (M) Bhd [2012] 2 MLJ 394, awarding one global lump sum damages (including in it the aggravated and exemplary damages or ‘rolled-in-one damages’ as His Lordship put it) in defamation proceeding is the judicial trend these days. Yet, the era of million Ringgit award for defamation has long gone and consigned to history with the decision of the Court of Appeal in MGC Pillai (supra). For instance, in Lim Guan Eng (supra), despite the plaintiff being a Chief Minister of Penang, the court awarded RM200,000 as damages. [76] Considering the nature of the Postings, the extend of publication and allegation against the 2nd and 3rd Plaintiffs and all other considerations discussed above, it is my view that the award of one global lump sum damages of RM300,000.00 to the 2nd Plaintiff and RM150,000.00 to the 3rd Plaintiff is fair and reasonable. Conclusion [77] To conclude, this Court find that the Plaintiffs have proved on the balance of probabilities that the Defendant is the owner of the Facebook account, ‘Luqmanul Hakim Abd Rahim’ and the Livejournal Blog and the author of the Postings. [78] The Plaintiffs’ cause of action for defamation has been proven as the Postings were indeed defamatory against them. However, the 1st Plaintiff’s claim for damages is dismissed because the 1st Plaintiff as a body corporate had failed to prove that it or its ‘pocket’ had been injuriously affected by the Postings. [79] Based on the aforesaid, it is ordered that the following be entered against the Defendant: i) Declaration that the Postings made by the Defendant were false, malicious and embarrassing to the Plaintiffs; ii) The Defendant is directed to make a public apology within seven (7) days from the date of judgment for two (2) days at:

News Straits times newspaper;

The Defendant’s Facebook page (Luqmanul Hakim Bin Abd. Rahim); and

The blog journal, antiponzi.lifejournal.com; iii) The Defendant shall withdraw all his allegations against the Plaintiffs on the internet and/or social media and subsequently apologize and undertake to not repeat the allegations against the Plaintiffs; iv) An injunction restraining the Defendant whether by himself, his servants or agents or otherwise, from publishing or causing to be published or contributing to the publication of defamatory words against the Plaintiffs in Facebook and blog publications; v) Global lump sum damages in the sum of RM300,000.00 to be paid by the Defendant to the 2nd Plaintiff; vi) Global lump sum damages in the sum of RM150,000.00 to be paid by the Defendant to the 3rd Plaintiff; vii) Judgement Interest; and viii) Costs. Dated: 20th July, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiffs Bani Prakash Messrs. Bani Prakash & Co For the Defendant Gurmurk Singh, John Das, Kabina Levan Messrs. John Das & Associates Table of Authorities Case Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315; [1989] 1 CLJ Rep 321 Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371 Christina Liew Chin Jin v Leksun bin Injil [2021] MLJU 1373 Crowd Care Sdn Bhd & Anor v Ling Lek Foo [2021] MLJU 2831 Dato’ Sukri Hj Mohamed v. Wan Muhammad Azri Wan Deris [2016] 4 CLJ 654 Dato’ Wan Hasim bin Hj Wan Daud v Mazlan bin Ibrahim [1998] 1 MLJ 176 Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2018] 1 CLJ 145 Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605 Jameel and others v Wall Street Journal Europe SPRL [2006] UKHL 44 John v MGN Ltd [1997] Q.B. Lachax v Independent Print Ltd; Lachaux v Evening Standard Ltd; Lachaux v AOL (UK) Ltd [2016] QB 402 Mahadevi Nadchatiram v Thiruchelvasegaram Manickavasegar [2001] 3 CLJ 65 Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314 MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun [1995] 2 CLJ 912 Monroe v Hopkins [2017] EWHC 433 Nurul Izzah Binti Anwar v Tan Sri Khalid Bin Abu Bakar & Anor [2018] MLJU 472 Ratus Mesra Sdn Bhd v Shaikh Osman Majid & Ors [1999] 3 MLJ 529 Siti Sakinah bt Meor Omar Baki v Zamihan Mat Zin & Anor [2018] 7 MLJ 487 Sivabalan a/l Asapathy v The New Straits Times Press (M) Bhd [2010] 9 MLJ 320 Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904 Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393 Veerasingam a/l Ratnam & Anor v Narindar Sigh a/l Avtar Singh Chhabra [2021] MLJU 1425 Wong Yoke Kong & Ors v Azmi M Anshar & Ors [2003] 4 MLJ 96 YB Dato’ Hj Husam Bin Hj Musa v Mohd Faisal Bin Rohban Ahmad [2015] 3 MLJ 364 Statutes Section 114A of Evidence Act 1950 Treaties Halsbury’s Law of Malaysia, [370.025], [370.040]

A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.” [20] Here, the Plaintiffs cited the case of YB Dato’ Hj Husam Bin Hj Musa v Mohd Faisal Bin Rohban Ahmad [2015] 3 MLJ 364 to support their submission. The Court of Appeal in YB Dato’ Hj Husam Bin Hj Musa (supra) held that: “[26] We have gone through the evidence repeatedly and we are satisfied that on the balance of probabilities, the plaintiff has made out a case against the defendant. The defendant in this case has also failed to rebut the presumption under s 114A of the EA 1950 and the defence of mere denial is not acceptable on the facts of the case as identity has been established on the balance of probabilities; and in defamation suit it need not be on beyond reasonable doubt. Such a proposition is also consistent with s 114(h) of the EA 1950 which states:

that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him.” [21] In response, the Defendant submitted that this Court should distinguish the position of YB Dato’ Hj Husam Bin Hj Musa (supra) as, in that case there was direct and circumstantial evidence that showed the tortfeasor that owned the blog was the defendant. However, in the present case, the Plaintiffs had failed to adduce cogent evidence in proving the Defendant was the owner of the Facebook account. The Defendant further cited Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904 to support his contention that it is important for the Plaintiffs to carry out a pre-action discovery first before the defamation suit could be filled in against the Defendant. [22] With due respect, I disagree with the Defendant. In light of all the aforementioned testimonies and documentary evidence, I do find that there is enough evidence to point out and identify that the Defendant was the owner of the Facebook account and the LiveJournal blog. As discussed above, SP1 and SP3 had given direct evidence that they knew and met the owner of the Facebook account, ‘Luqmanul Hakim Abd Rahim’ in person, and there was no doubt that the owner of this Facebook account is the Defendant in reality. This ‘Luqmanul Hakim Abd Rahim’ was also the author of the Postings. [23] As has been ruled in the High Court case of Siti Sakinah bt Meor Omar Baki v Zamihan Mat Zin & Anor [2018] 7 MLJ 487 by His Lordship Wan Ahmad Farid JC that it is pertinent to establish that the defendant was the one who utter the words reflected in the impugned statements. This is because if it can be established that he never made the impugned statements, then he could not be possibly liable no matter how defamatory the words are. [24] With the positive identification by both SP1 and SP3 and the other collaborating evidence, it is clear that the Facebook account belongs to the Defendant and that he is the blogger who wrote the entry in the Postings. I am agreeable with the Plaintiffs that the burden of proof now shifted to the Defendant to prove otherwise and the Defendant has failed to do so. Throughout the trial, SD2 had merely denied that the Facebook account was not his, without any shred of evidence to support his denial. As have been put by the learned counsel of the Plaintiffs during cross-examining SD2: [NOP at page 495] Are there a police report available before this court to that effect? To say to deny that all these postings and everything was not made by you and your name, your photographers, your information has been misused. SD2: I can’t remember. No. Are there any? I’m asking, am not asking where there is any? Can you check the bundles and tell me? SD2: In the bundles? Yes. SD2: As in the bundles, no. [25] In fact, it is my finding that SP1 and SP3 ‘s testimonies are reliable and credible. They have identified the Defendant positively. This is also supported by the other corroborating evidence. On the other hand, the Defendant has offered nothing more than bare denial. The Defendant has denied that the Facebook account in issue, ‘Luqmanul Hakim Abdul Rahim is his. Also, he denied that he was the administrator of the ‘Ponzi Scheme Alert in Malaysia’ Facebook public group (https://www.facebook.com/groups/PonziSchemeMalaysia) as well as the administrator of LiveJournal blog ‘AntiPonzi.LiveJournal’ (https://AntiPonzi.LiveJournal.com/1165.html). He, however, agreed that whoever is the Facebook account user ‘Luqmanul Hakim Abd Rahim’ in issue, is also the author of the Postings. He has informed the Court that he had another Facebook account https://www.facebook.com/LHARAW) and the same was hacked. He has made police report in 2010. [26] However, this does not address the issue at hand: whether the Facebook account user ‘Luqmanul Hakim Abdul Rahim (https://www.facebook.com/Lord.LuQienstein), who is also the administrator of the public group and the LiveJournal blog, is indeed the Defendant in our present case. It is pertinent to note that the same Facebook user has conducted fundraising activities to ask for donation, invited visitors to and made the same plea of donation in his blog AntiPonzi.LiveJournal. The blog then invited the general public to contribute/ donate money to sue coin.my which was owned by the 2nd and 3rd Plaintiffs. The bank account number used for this donation is the CIMB account number stated earlier which was admitted by both parties in the para 11 of the statements of agreed facts (Enclosure 11) as the Defendant’s banking account. The same applies to many postings in the Facebook account and other entries (pp 70, 97, 152 & 160 of Bundle A—Enclosure 16) where this CIMB banking account number has been posted asking the readers/ viewers to donate and transfer money to this account in support of this ‘Luqmanul Hakim Abdul Rahim’. This casts doubt to the Defendant’s ignorant claim which is non-commensensible. If the Facebook user is indeed someone else, why would he solicit fund to be banked into the Defendant’s banking account? Also, if a person’s banking account has been used to solicit money from the general public, would any reasonable man sit still without making any police report? Bearing in mind the Defendant has previously made police report against scammers and illegal money laundering activities, such suspicious fund-raising activities using his banking account would immediately raise a red flag and to the very least a police report would have been made. Nothing has been forwarded by the Defendant on this. This, couples with the positive identification by SP1 and SP3 with great certainty, has made it clear to this Court the linkage between the Defendant in real life and his avatar in the Facebook account and thus the writer/ maker of the Postings. [27] Overall, the Plaintiffs had successfully proven that the owner of the tortfeasor Facebook account and the LiveJournal blog is the Defendant notwithstanding the lack of a report from the Malaysian Communications and Multimedia Commission. This also further proves that the Defendant is also the administrator for the Facebook group ‘Ponzi Alert and Scheme Malaysia’ and the author of the Postings. This is also in line with the ratio of YB Dato’ Hj Husam Bin Hj Musa (supra). Now, I will proceed to analyse whether the Plaintiff had successfully proved a cause of action for defamation against the Defendant. [28] It is trite law and as articulated in numerous case laws that in order for a party to succeed in a defamation action, he needs to establish three basic elements –

That the statements are defamatory;

(ii) That the statements must refer to or reflect upon the plaintiff’s reputation; and

(iii) That the statements must have been published. (see Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605; Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315; [1989] 1 CLJ Rep 321; Sivabalan a/l Asapathy v The New Straits Times Press (M) Bhd [2010] 9 MLJ 320) [29] I shall discuss these 3 elements separately together with the application of each of them to our present case. i. Whether the Postings are Defamatory? [30] In Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371, the Court of Appeal had lain down the test to be undertaken in determining whether the impugned words stated in the Postings were defamatory. His Lordship Gopal Sri Ram JCA (as he then was) at page 466 observed as follows – “It cannot, I think, be doubted that the first task of a court, in action for defamation, is to determine whether the words complained of are capable of bearing a defamatory meaning. And it is beyond argument that this is in essence a question of law that turns upon the construction of the words published. As Lord Morris put it in Jones v. Skelton [1963] 3 All ER 952 at p. 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 part of the ordinary and natural meaning of words (see Lewis v. Daily Telegraph Ltd [1963] 2 All ER 151). The ordinary and natural meaning may therefore include any implication of inference which a reasonable reader, guide 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.” [Emphasis added] [31] Likewise, in Datuk Seri Anwar (supra), Her Ladyship Rosilah Yop JC followed the ruling in Chok Foo Choo @ Chok Kee Lian (supra) articulated that – “[22] As to whether the statements were capable of being and were, in fact defamatory of the plaintiff, the test to be considered is whether the statements complained of were calculated to expose the plaintiff to hatred, ridicule or contempt in the mind of a reasonable reader would tend to lower the plaintiff in the estimation of right thinking society generally (see JB Jeyretnam v Goh Chok Tong [1985] 1 MLJ 334). [23] The ordinary and natural meaning may therefore include any inference or implication which any inference or implication which an ordinary reasonable reader would draw from the statements.” [Emphasis added.] [32] The test to determine whether the words are defamatory involved is a 2-stage process. In Wong Yoke Kong & Ors v Azmi M Anshar & Ors [2003] 4 MLJ 96 it was opined that, firstly, the court is to consider what meaning the words could convey to the ordinary person and secondly, if the words were published, whether a reasonable person would likely understand them in a defamatory sense. [33] Therefore, in this case, the essential questions to ask are these: what would an ordinary reasonable reader construe the Postings to mean? Would the Postings expose the Plaintiffs to hatred, ridicule or contempt in the mind of a reasonable reader and would it also lower the Plaintiffs in the estimation of right-thinking society generally? The Plaintiffs cited the case of Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393 where the court discussed the test in determining whether the impugned statements defamatory or not – “The test whether the words complained of in the article were capable of being and were in fact, defamatory of the plaintiff was, whether such words were calculated to expose him 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. The words complained of in the article were capable of being and were in fact, defamatory of the plaintiff (see pp 402H and 403C); JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334 and Syed Husin AH v Syarikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 followed” [Emphasis added] [34] In my judgment, I agree with the contention of the Plaintiffs that the Postings convey amongst others the following to a reasonable reader:

The business conducted by the 2nd and the 3rd Plaintiff involved a scam investment;

The 2nd and 3rd Plaintiff also involved with an alleged well-known scammer i.e., Dato Fadino and Dato Zaimi Azmi;

The 2nd and 3rd Plaintiff was dishonest and incompetent in running their business;

The 2nd and 3rd Plaintiff should not be trusted;

The drone product business run by the Plaintiffs was a non-quality product;

The Plaintiffs was involved in a smuggling business [35] To put more salt to the wound, the tone of the Postings was scornful and cynical throughout. The derogatory words such ‘anjing scammer’, ‘brainless spoiled brat’, ‘Syarikat Biawak Hidup Cap ayam’ clearly have the effect of lowering the estimation of the 2nd and 3rd Plaintiffs in the eyes of the public. The Postings would also disparage the 2nd and 3rd Plaintiff’s reputation as any reasonable reader would tend to think less of them as a person and a businessman. [36] The imputation of someone’s act involved in scamming business is also capable of being defamatory especially in today ages and time. In Crowd Care Sdn Bhd & Anor v Ling Lek Foo [2021] MLJU 2831, it was held that the impugned statements that alleged the plaintiff as a ‘man who embraced the Christian faith as a way of scamming his fellow church goers and anyone foolish enough to believe him and to invest in his durian money game and also his crowdfunding app Life Engineering’ was in fact defamatory. [37] Thus, I am of the view that the Postings were and are defamatory as they

tend to lower the 2nd and 3rd Plaintiff in the estimation of right-thinking members of society generally,

exposed the 2nd and 3rd Plaintiff to hatred, contempt or ridiculed, and

may cause the 2nd and 3rd Plaintiff to be shunned or avoided. ii. Whether the Postings refer to the Plaintiffs [38] It is trite that the person who can maintain an action in defamation is the one who is defamed and not any other individual as an action for defamation is purely a personal one and neither can it be assigned (see Halsbury’s Law of Malaysia – Defamation (Volume 13(1): [370.040]). One way of proving that the impugned statements refer to the plaintiff is if the name of the plaintiff has been clearly stated (see Christina Liew Chin Jin v Leksun bin Injil [2021] MLJU 1373). [39] Nevertheless, if such statements do not mention the plaintiff’s name, the court will look at the impugned statements objectively. In Lachax v Independent Print Ltd; Lachaux v Evening Standard Ltd; Lachaux v AOL (UK) Ltd [2016] QB 402; [2015] EWHC 2242 (QB); [2016] 4 All ER 140, Warby J (at p. 411) laid down the common principle that the impugned statement must be published of and concerning the plaintiff – “Reference

“it is an essential element of the cause of action for defamation that the words complained of should be published ‘of the [claimant]”: Knupffer v London Express Newspaper Ltd [1944] AC 116, 118. This does not mean the claimant must be named. The question is whether reasonable people would understand the words to refer to the claimant: “The test of whether words that do not specifically name the [claimant] refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquitted with the claimant to believe that he was the person referred to?”: David Syme & Co v Canavan (1918) 25 CLR 234, 238, per Issacs J.

This is an objective test. If the words would be so understood by such people it is not necessary for the claimant to prove that there were in fact such people, who read the offending words; so an individual defamed by name in Cornwall has a cause of action even if he was unknown in that county at the time of publication: see Gatley on Libel and Slander, 12th ed (2013), para 7.3; Multigroup Bulgaria Holdings AD v Oxford Analytica Ltd [2001] EMLR 28, para 22, per Eady J cited with approval in Jameel [2005] QB 946, para 28.” [Emphasis added] [40] In our present case, it is crystal clear that the Postings had intentionally and expressly referred to the Plaintiffs. Not only do the Postings explicitly mention the Plaintiffs’ name, but it was also published together with the 2nd and 3rd Plaintiffs’ photo. The 2nd Plaintiff who was also SD4, had testified this in his Q&A – “15. Q: I refer to you to pages 210-221 of the CBD Vol. 1, what can you tell the Court about the documents? A: It contains a print-out page documents that had been written and published or caused written or published by the Defendant using the Defendant’s blog account under the name of antiponzi.livejournal.com at URL: https://antiponzi.livejournal.com/1165.html containing defamatory words of myself, 1st Plaintiff and the third Plaintiff. The aforementioned is repeated, embellished and sensationalized version of the serious, false and unsubstantiated allegation made by the Defendant. The Defendant further libelious statements of all Plaintiffs and the said libelious statements can be found at paragraph 18 i to vii of the Statement of Claim.” [41] Thus, there is no shred of doubt that in nature and ordinary meaning, the impugned statements are capable of referring to the Plaintiffs. Any reasonable person reading the Postings would agree that the reference was made to the Plaintiffs. iii. There must be a Publication [42] The next fundamental requirement of any defamatory action is that the statements must be communicated or published to a third party. I rely on the recent case of Veerasingam a/l Ratnam & Anor v Narindar Sigh a/l Avtar Singh Chhabra [2021] MLJU 1425, where His Lordship Quay Chew Soon JC (as he then was) stated that – “[46] Impugned Statement 1 was transmitted to the other members of the Sibling WhatsApp Group. The FB Post (i.e., Impugned Statements 2 and 4) was published on the internet via the Facebook platform. In the circumstances, I find that the Impugned Statements were indeed published. [47] Being on online posting on the internet, I am of the opinion that publication of the FB Post to third parties can be presumed. This is due to the global reach of the internet. The online posting is easily accessibly worldwide, assuming the Facebook account is public or open. Even if the Facebook account is private and restricted to ‘friends’, the fact remains that such ‘friends’ can see the online posting (see the High Court cases of Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605 at 619; Sujendran a/l Gunasegaran v Mohd Zaid bin Idris & Anor [2021] MLJU 120). [48] Moreover, online postings are capable of beings forwarded and shared. They can remain posterity in the virtual space. I refer to the following admonition of the Federal Court in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652 at 649: “[144] The Malaysian public must use their discretion rationally and wisely especially when it comes to posting on the internet as it will remain in posterity in the virtual world. The Malaysian public is not known to be rude, discourteous, disrespectful or ill-mannered. This social norm is to be treasured and preserved at all costs. Let not the social media change social landscape of this nation.” [Emphasis added]. [43] Also as codified in Section 114A(4) of the Evidence Act 1950: “(4) For the purpose of this section –

“network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

“publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer. [Emphasis added] [44] In our present case, the Plaintiffs contended that the Postings were published on the Defendant’s personal Facebook account, ‘Luqmanul Hakim Abd Rahim’, on the Facebook group under the Defendant’s account as admin ‘Ponzi Scheme Alert in Malaysia’ and in his LiveJournal blog called ‘antiponzi.lifejournal.com’. The Plaintiffs also submitted that there was a continuous publication of the Postings as it has been “liked” and “shared” with other Facebook users and the general public. [45] Since there is no dispute about the clear fact that the Postings were all published in the social media, this Court answer the third element in the affirmative. iv. Presence of Malice [46] In essence, malice is a necessary element in an action for libel. Nevertheless, the plaintiff does not have to prove falsity or malice to establish his cause of action. This is because malice is presumed from the fact of publication of defamatory words. Thus, the Plaintiffs need not prove it. As well-explained in the case of Nurul Izzah Binti Anwar v Tan Sri Khalid Bin Abu Bakar & Anor [2018] MLJU 472, the mere publication of the defamatory statements implies malice on the part of the defendants. [47] However, it is pertinent to note that there is a distinction drawn between express malice and malice in law. In Dato’ Wan Hasim bin Hj Wan Daud v Mazlan bin Ibrahim [1998] 1 MLJ 176, it was held that the distinguishing factor between express malice and malice in law is that the latter may be presumed from the fact of the publication of defamatory words whereas express malice is actual malice or malice in fact which has to be pleaded and proven by the plaintiff. [48] According to Nurul Izzah Anwar (supra), express malice can be proven

extrinsically from the facts and circumstances in which the statements was made; or

intrinsically from the words in the impugned statement itself. It is this Court’s view that, in the present case, the evidence in its totality is enough to presume that there was malice. Looking and reading closely at the Postings as a whole, it is clear that the maker was resentful and had ill will towards the Plaintiffs. [49] Therefore, given the fact that the Postings were worded in such a way to paint a negative narrative towards the 2nd and 3rd Plaintiffs’ character as individuals and professional standing as businessmen in the society, malice can clearly be implied. v. Damages-The 1st Plaintiff as Body Corporate [50] Now that it is established that the Postings were made by the Defendant and that there are indeed defamatory remarks in the Postings referring to the Plaintiffs, the issue of damages comes to the fore. In most cases, the victims of such defamatory remarks would be awarded damages to compensate them the lowering or degrading of their reputation. I shall now discuss the crucial points regarding this in separate subheadings. [51] In respect of the 1st Plaintiff, this Court agree with the Defendant that the Plaintiffs have failed in its claim for damages. It is the Defendant’s submission that the Plaintiffs had failed to prove that the Postings have affected the 1st Plaintiff being a private limited company, namely, a body corporate. The Defendant cited the Court of Appeal decision in Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314 in support. In Melawangi (supra) it was held that the threshold requirement for a limited company to maintain an action in libel was that the words complained had injuriously affected the company in relation to its pocket. To this I concur and am bound by. [52] Halsbury’s Laws of Malaysia: Defamation (Volume 13 (1)) para. [370.025] says the following regarding defamatory claims involving companies and corporations: “[370.025] Companies and corporations A corporate body may maintain an action for libel or slander in the same way as an individual, albeit it is now established that a limited company will only have a limited cause of action in defamation as opposed to an individual person. However, the imputation must reflect upon the company or corporation itself and not upon its members or officials only. Unlike an individual, a company or corporation has no feelings, so the only damage it can suffer is injury to its reputation. Therefore, as a company it could only recover damages appropriate to remedy the harm to its reputation…A trading company or corporation has a trading reputation and can maintain an action for libel or slander in respect of a statement that injuries its trade or business. A trading company or corporation…” [Emphasis added] [53] Also, Lord Hope of the House of Lords has effulgently enunciated in Jameel and others v Wall Street Journal Europe SPRL [2006] UKHL 44 the requirement regarding the claim for damages in a libel suit by a body corporate: “[93] This issue has been referred to as ‘the presumption of damage’ issue. But to describe the award of damages for libel as based on a presumption is not wholly accurate. The question in every case of libel is whether the statement complained of would tend to bring the claimant into contempt, hatred or ridicule, or to injure his character: South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 138; [1891-4] All ER Rep 548 at 550 per Lord Esher MR. This is a question of fact. It is the injury to the claimant’s feelings or to his reputation that makes the false statement libellous. The award flows from the fact that, in the case of an individual, an injury to feelings or to reputation will always sound in damages. In the same case ( [1894] 1QB133 at 145,; [1891-4] All ER Rep 548 at 553) Kay LJ said one of the differences between libel and slander is that in an action for libel, generally speaking, damage is presumed and that special damage need not be proved or alleged. But it is the fact that the statement was calculated to injure the claimant in his character or reputation that makes the action maintainable. Proof that he has a reputation that is capable of being injured in this way is an essential element. In the case of an individual it can be presumed that he has a reputation of that kind. In all other cases this is something that must be proved.” [Emphasis added.] This ratio of Lord Hope has been endorsed and quoted locally by the bench in Melawangi (supra). [54] The Plaintiffs argued that the Postings had indeed affected the 1st Plaintiff’s financial position. SP2, the auditor of the company referred to (Refer 37-50 of the Common Bundle of Document-Jilid 4) and testified that: