1. ) Perbadanan Pengurusan Vista Kiara v Tan Ye Wai (WA-12BNCvC-4-01/2025)

1.

KARNIK NIRAJ SHRIKANT

MAK SUI HOON

ADRIAN FITZGERALD GOVES

CHIA E MAN

ANUJ KAPOOR

VIJAY KANTIBHAI (NO. PASSPORT: Z3290576) … PLAINTIF-PLAINTIF DAN TAN YE WAI (NO. K/P.: 640924-06-5396) … DEFENDAN JUDGEMENT 17/06/2025 16:29:16

The learned Sessions Judge after a full trial allowed the Plaintiff’s claim for libel against the Defendants and ordered the Defendants to pay damages to the Plaintiff. The Defendants now appeal against this decision of the learned Session Judge. The brief facts

The Plaintiff’s claim stemmed from an article defaming her published using the official e mail of the 1st Defendant which was the Management Body of a residence called the Vista Kiara Condominium. The other Defendants were the committee members of the 1st Defendant.

The Plaintiff apart from being the resident at the condominium was a member of a financial task force appointed by the 1st Defendant. The defamatory statement against the Plaintiff were contained in an e mail entitled “IMPORTANT-A MUST READ FOR OWNERS OF PPVK” and published in the official email of the 1st Defendant and sent to all the residents of the condominium.

The email denoted the Plaintiff as the cause of disharmony and chaos amongst the residents of the condominium. The email also labelled the Plaintiff as carrying out activities serving her own interest. The e mail further denoted the Plaintiff as a criminally inclined.

The Defendants in their defense contended that it was the statutory duty of the Defendants to rectify and correct any issues arising which might lead to a detriment to the peaceful enjoyment of the condominium by all the residents of the condominium.

The learned Sessions Judge relied on the case of Chong Swee Huat & Anor V Lim Shian Gee [2009] 4 CLJ 113 to determine the elements required the proof of libel.

Taking guidance from the above case the learned Session Judge concluded that the elements that needed to proof libel is that the article referring to the Plaintiff must be published to the 3rd party and the article must be defamatory.

This Court after perusing the evidence in this case had no qualms of agreeing with the learned Judge’s finding that the article referring to the Plaintiff was published to 3rd parties. There is sufficient evidence to proof this element.

In the Court’s view the more important element for a claim of libel is whether the article is defamatory to the Plaintiff and if it is whether its publication was justified a, fair comment and made bona fide.

The learned Sessions Judge found the words and phrases used in the article were defamatory to the Plaintiff as it portrayed the Plaintiff as dishonest and a person who had committed breach of trust, had not carried out here role in the task force responsibly. The articles also portrayed the Plaintiff as an instigator causing unrest amongst the residents of the condominium, unethical, ill mannered, hypocrite and generally acted in an unjustified manner against the Defendants.

The Court agrees with the learned Sessions Judge that in reading the article as a whole it raises a negative insinuation against the character to the Plaintiff which could lead to residents to a feeling of contempt and odium against her and tarnish her reputation amongst the other residents as well as public at large.

The case referred by the learned Session Judge Syed Husin Ali V Sharikat Percetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 is also on point. This case decided that “ Thus, the test of defamatory nature of a statement is its tendency to excite against the Plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the Plaintiff in the estimation of the right thinking of members of society generally? The typical type of defamation is an attack upon the moral character of the Plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty”

In short he Court agrees with the learned Sessions Judge that the Plaintiff has proven that the article published to 3rd parties against her are defamatory. The only thing to consider further is whether the Defendants can avail themselves of any of the defenses available for a claim of libel.

Having found the article referring to the Plaintiff is defamatory the next issue is whether the publication was justified. As a test of justification the learned Session Judge referred to the case of S Pakianathan V Jenni Ibrahim& Anor [1988] 1 CLJ Re- 233 which decided that "The burden lie upon the defendant to establish justification. The burden does not lie on the Plaintiff to prove that the defamatory words are false, because the law presumes this in his favor : Bett V Lawes [1882] 51 LJQB at p. 361. To establish justification the defendant must prove that the defamatory imputation is true. It si not enough to prove that he believed that the imputation was true : Peters V Brodlaugh [1884] 4 TLR 467”

Further reference can be made to section 103 of the Evidence Act 1950 which states as follows: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere.

The learned Sessions Judge found that the imputation made in the article were unsubstantiated and based on speculation and hearsay. After perusing the evidence in this case the Court agrees with the findings of the learned Session Judge that the Defendants has failed to discharge the burden of showing justification.

Similarly the learned Session Jude dismissed the defense of fair comment and privilege taking guidance from the cases of Christina Liew Chin Jin V leksun Injil [20121] 1 LNS 1157 and Hisham Tan Sri Halim V Teh Faridah Bt Ahmad Norizan & Anor [2021] 10 MLJ 683. The Court again agrees with the learned Session Judge that the Defendants have failed to discharge the burden to prove fair comment or privilege.

Finally, the Court agrees with the Sessions Judge that the Defendants had acted in bad faith in publishing the impugned article.

As to the relief available to the Plaintiff once the libel is proven, the Court agrees with the leaned Session Judge that under section 5 of the Defamation Act 1957 the Plaintiff need not prove damages or loss as a claim for libel is actionable per se.

In awarding damages to the Plaintiff, the learned Sessions Judge took into account the gravity of the allegations against the Plaintiff and the profound effect the allegation had against the reputation of the Plaintiff added to the fact that the Defendants showed no remorse for their action. The learned Session Judge allowed damages of RM50,000 as general damages and exemplary damages of RM7,000.

Although in this Court’s views the damages awarded to be on the lower side taking into account the gravity and damage done to the reputation of the Plaintiff the Court nevertheless thought it fit not to disturb the finding of the learned Sessions Judge on the award.

In the upshot the Court dismissed the Defendants’ appeal with a cost of RM5,000. Dated: 16.6.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Emily Chong Pei Yen. Tetuan Othman Hashim & Co. 6TH Floor, Wisma Kah Motor, No. 566, Batu 3 1/2, Jalan Ipoh, 51200 Kuala Lumpur. For the Defendant: Nama Peguamcara: Esther Leong Kar Hong Tetuan Tan & Khong Chambers B-03-02, Skypark @ Onecity, Jalan USJ 25/1, 47650 Subang Jaya, Selangor.

Chong Swee Huat & Anor V Lim Shian Gee [2009] 4 CLJ 113;

Christina Liew Chin Jin V leksun Injil [20121] 1 LNS 1157;

Hisham Tan Sri Halim V The fatridah Bt Ahmad Norizan & Anor [2021] 10 MLJ 683;

Syed Husin Ali V Sharikat Percetakan Utusan Melayu Berhad &

S pakianathan V Jenni Ibrahim& Anor [1988] 1 CLJ Re- 233.