Tan Sing How v Ng Ze Xuan (B-02(W)-659-04/2024)

KALYSTA SDN. BHD. (NO. SYARIKAT: 201801037280 (1299310-H)) ...PERAYU-PERAYU DAN NG ZE XUAN (NO. K/P:980113-10-5770) ...RESPONDEN [Dalam perkara Mahkamah Tinggi di Shah Alam Guaman Civil No.: BA-23CY-13-09/2021 Antara Ng Ze Xuan (No. K/P:980113-10-5770) Dan ...Plaintif

Tan Sing How (No. K/P: 950805-03-5809)

Lai Phui Khae (No. K/P:941123-14-6478)

Kalysta Sdn. Bhd. (No. Syarikat: 201801037280 (1299310-H)) ...Defendan-Defendan yang diputuskan oleh Yang Arif Pesuruhjaya Kehakiman Puan Jamhirah binti Ali di Mahkamah Tinggi Malaya di Shah Alam pada 21.3.2024] MOHAMED ZAINI BIN MAZLAN, JCA. ONG CHEE KWAN, JCA. MUNIANDY A/L KANNYAPPAN, JCA. SUPPORTING JUDGMENT

I have had the privilege of reading in advance the main grounds of judgment of my learned brother Ong Chee Kwan JCA. I am in absolute concurrence with the comprehensive analysis, findings and conclusions, save for the part of the judgment on apology as a remedy for the defamation; specifically stating that the court has no jurisdiction to order the publication of an apology.

Ensuing from that, I now turn to the crucial question of remedies, specifically the order made by the learned High Court Judge directing the Appellants to issue a scripted apology to the Respondent. The appellants have strenuously argued that the court faces an absolute jurisdictional bar under both common law and the Defamation Act 1957 when it comes to compelling a party to publish an apology against their will. They rely heavily on Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 and the Singapore Court of Appeal decision in Chin Bay Ching v Merchant Ventures Pte Ltd [2005] SGCA 29 to contend that because an apology is intrinsically a volitional act of contrition, it lies beyond the coercive power of judicial determination.

I accept that as a general proposition, a court-mandated apology extracted under the threat of legal contempt is often hollow and practically ineffective. However, it has to be clarified that it is not entirely accurate to state that the court has no jurisdiction whatsoever to order to facilitate an apology as a remedy for defamation. The jurisdictional boundaries of a superior court are not so rigidly constrained.

First, a clear distinction must be drawn between an adversarial context where a remedy is forced upon an unwilling litigant after a full trial, and a consensus driven context where the parties pursue a settlement, be it by way of mediation etc. There can be, and frequently are, instances where a defaming party willingly tenders an apology to the acceptance of the defamed party as a central condition of resolving their dispute.

When such a settlement is reached, the court routinely exercises its power to record a consent judgment or consent order incorporating the agreed apology. In those specific circumstances, the court does not run afoul of the sincerity dilemma. The spirit of volition remains intact because the defaming party has voluntarily chosen to tender the apology as a pragmatic legal and commercial trade-off to conclude litigation. The court is merely giving the formal force of law to the consensus reached by the parties.

Secondly, when a full trial has concluded and liability is firmly established, the court is not entirely paralyzed by the silence of the Defamation Act 1957. While the statutory framework outlines standard common law reliefs, it does not expressly prohibit or extinguish the court's ultimate power to regulate remedies. As a superior court of unlimited jurisdiction, it possesses an inherent jurisdiction to prevent injustice and to craft remedies that achieve complete equal justice between the parties. Further, where damages are difficult to calibrate or intentionally scaled down to avoid runaway figures, as we have done here by substituting a global sum of RM100,000, equitable remedies must step in to bridge the gap.

In cases like the present, where a defamatory campaign has been carried out entirely within closed online networks, such as the WeChat and Instagram groups utilized by the appellants, a simple award of damages may prove wholly inadequate to erase the specific stain on a plaintiff's reputation. A formal written judgment, confined to legal journals, will rarely reach the original target audience. Where the ends of justice absolutely demand a nonmonetary rectification of the record, an apology or a formal retraction may be ordered pursuant to the inherent jurisdiction of the court to ensure the remedy matches the true nature of the harm. A respondent whose reputation was systematically dismantled in an online forum is to ignore the reality of how the information flows in the digital age. An internet-based defamation requires an internet-based remedy.

To resolve the practical difficulties of supervising emotional speech, any order made pursuant to the inherent jurisdiction of the court must be structured not as a command to express a subjective feeling of regret, but as a mandatory command to state an objective fact. The court will not force a party to say they are "sorry", but they can be legally compelled them to declare what is true.

Consequently, to give effect to this inherent power while avoiding the quagmire of regulating forced remorse, the scripted order by the High Court may be substituted with a Mandatory Order for Rectification and Factual Withdrawal under the court's inherent jurisdiction. Such an order does not violate the appellants' freedom of speech, nor does it force them into a hypocritical display of an unfelt remorse. It is a mechanical enforcement of the truth, entirely analogous to forcing a judgment debtor to part with funds to pay a civil debt. Compliance with this order requires no verification of the heart; it requires only verification of the text. Dated the 20th day of May 2026 am any. MUNIANDY A/L KANNYAPPAN JUDGE COURT OF APPEAL For the Appellants : 1) Ranjit Singh; 2) Prisilla Chong Mun Mun; and 3) Tioh Xin Min. (Messrs Ranjit Singh & Yeoh) For the Respondent : 1) Bryan Ho Jian Yau; and 2) Kimberly Ng Wenn Mei. (Messrs Ho Partnership & Neoh)