1. ) Tetuan Ong, Ric & Partners v 1. ) Tetuan Thomas Shankar Ram & Co. Advocates (WA-23NCvC-84-08/2021)

MESSRS ONG, RIC & PARTNERS (SUING AS A LAW FIRM)

ONG KAH LOK

TUW MIN RIC (NRIC NO.: 950607-01-6535) …PLAINTIFFS

AND MESSRS THOMAS, SHANKAR RAM & CO. ADVOCATES

YU YING YING

SHANKAR RAM POHUMALL ASNANI (NRIC NO.: 701208-13-5425) …DEFENDANTS GROUNDS OF JUDGMENT [Defendants’ Application pursuant to Order 18 r19 of the Rules of Court 2012 – Enclosure 8] A. Introduction [1] This is a case where the Plaintiffs filed defamatory claims against the Defedants due to a letter issued by D3 firm in the course of conduct of a legal matter in Sarawak. The Defendants then filed an application pursuant to O. 18, r. 19(1) (a), (b), (c) or (d) of the Rules of Court 2012 (‘ROC 2012’) to strike out the Plaintiffs’ Writ of Summon and Statement of Claim (“the Application”). 19/10/2022 12:20:05 WA-23NCvC-84-08/2021 Kand. 44 i. Facts of the Case [2] Messrs Lo & Partners, a Sarawak law firm, (“Messrs Lo & Partners”) was appointed by Expro Marine Sdn Bhd (‘Expro Marine’) as its advocates to commence a legal proceeding against Amalgamated Plant Engineering Sdn Bhd (‘APE’) by filing an application for interim relief pursuant to Section 11 of the Arbitration Act 2005 vide Originating Summons No. BTU-24-7-9/2020 before the High Court in Bintulu (‘the OS’). [3] The 1st Defendant was appointed and acted for APE as its advocates in the OS. The 1st Plaintiff was appointed by Expro Marine to commence ad-hoc arbitration proceedings against the APE which was seated in Kuala Lumpur (‘the Arbitration Proceedings’). [4] Both the OS and the Arbitration Proceedings concern various agreements entered into between the APE and Expro Marine. [5] On 10.12.2020, the High Court of Sabah & Sarawak in Bintulu dismissed the OS with costs of RM10,000.00. On 23.12.2020, Expro Marine filed an appeal to the Court of Appeal through Civil Appeal No. Q- 02(A)-26-01/2021 against part of the decision of the High Court dated 10.12.2020 (“the Appeal”). The Notice of Appeal was filed by Messrs Lo & Partners. [6] On 05.01.2021, the 1st Plaintif then filed a Notice of Change of Solicitors in respect of the Appeal taking over conduct of the Appeal from Messrs Lo & Partners. Messrs Lo & Partners did not object to the 1st Plaintiff taking over conduct of the Appeal. [7] Between 27.01.2021 and 08.02.2021, the 1st Plaintiff engaged in few correspondences with the 1st Defendant relating to the finalization of the index to the Record of Appeal and the filing of the Record of Appeal in the Appeal. [8] On 10.02.2021, the 1st Defendant notified the Plaintiffs that their conduct in seeking to have the index of the Record of Appeal finalized and filed in the Appeal was improper. The 1st Defendant also highlighted that the Plaintiffs have no automatic right of audience as the Appeal is an appeal which emanates from the High Court of Sabah and Sarawak. [9] On 24.02.2021, arising from the written response from the 1st Defendant, Messrs Lo & Partners filed a Notice of Change of Solicitors in respect of the Appeal taking over conduct of the Appeal on behalf of Expro Marine from the 1st Plaintiff. On 27.05.2021, the Court of Appeal reversed the decision of the High Court and allowed the prayers sought in the OS. [10] On 09.06.2021, APE filed an application for a leave to appeal to the Federal Court against the decision of the Court of Appeal. On the same day, APE filed in the Court of Appeal an application for a stay of execution (‘Stay Application’). The Stay Application was dismissed by the Court of Appeal on 08.07.2021. [11] On 08.07.2021, APE issued a letter to another company, Petronas Carigali Sdn Bhd (“Petronas Carigali”) stating, inter alia, that: a) The Court of Appeal dismissed the Stay Application; b) APE requested Petronas Carigali’s assistance to enable APE complying with the terms of the Court of Appeal Judgment dated 27.05.2021; and c) APE enquired whether Petronas Carigali’s representatives were free to have a video meeting by Zoom with APE, APE’s sub-contractors and with representatives of Expro Marine on 12.07.2021. [12] On 09.07.2021, Petronas Carigali responded to APE’s letter stating, inter-alia, that due to Petronas Carigali tight schedule, Petronas Carigali was not able to attend the Zoom meeting as requested by APE. Petronas Carigali proposed the Zoom meeting to be held on 13.07.2021. Petronas Carigali also stated that APE was advised to resolve all conflict with its subcontractor without Petronas Carigali’s involvement. [13] On 12.07.2021, a virtual meeting by way of Zoom was held on or about 10.00 a.m, organized by APE, and attended by Petronas Carigali and Expro Marine to discuss the terms of Court of Appeal decision (‘the Meeting’). [14] During the Meeting, the 2nd and 3rd Plaintiffs, who are advocates and solicitors practicing as partners in the name and style of the 1st Plaintiff, were present in their purported capacities as “supervising solicitors” for Expro Marine in the absence of the 1st Defendant, the advocates for APE. [15] On 12.07.2021, APE filed, in the Federal Court, an application for a stay of execution of the Court of Appeal Order dated 27.05.2021. On 15.07.2021, the 1st Defendant, on behalf of APE, issued a letter to the 1st Plaintiff and Messrs Lo & Partners, stating, inter-alia, that: a) At a virtual meeting, the 2nd and 3rd Plaintiffs were present in their purported capacity as “supervising solicitors” for Expro Marine in the absence of the counsel for APE, namely the 1st Defendant; b) The 1st Defendant was not notified beforehand by the Plaintiffs that the 2nd Plaintiff and 3rd Plaintiffs would act as “supervising solicitors” and would be attending the virtual meeting with APE in the absence of their advocates; and c) The conduct of all the Plaintiffs was highly improper, unprofessional and constitutes serious breaches of practice and etiquette rules. [16] The Plaintiff then initiated this action against the Defendants for, inter-alia, alleged defamation committed by the Defendants. As mentioned earlier, the Defendants filed the Application in due course. ii. Submission by the Defendants [17] The Defendants submitted that the principal issue in this case is whether the Plaintiffs’ claim is plainly and obviously unsustainable. To determine the principal issue above, the Defendants invites this Court to consider the following subsidiary issues: - a) Whether the Plaintiffs have a reasonable cause of action in defamation against the Defendants premised on the contents of a letter dated 15.07.2021 issued by the Defendants?; b) Whether Plaintiffs’ claim ought to be struck out for being scandalous, frivolous, and/or vexatious?; c) Whether the Statement of Claim is defective owing to the failure of the Plaintiffs to particularise the facts and matters in the pleadings vis-à-vis a purported libel action?; and d) Whether the Plaintiffs’ claim is a tactical ploy to retaliate against the Defendants who are the advocates of APE?. [18] The Defendant’s case is that the Plaintiffs’ claim in libel is only premised on the contents of the 1st Defendant’s letter dated 15.07.2021. The Defendants stressed that the 1st Defendant’s letter was issued by 1st Defendant, as an adcovates for APE, on the instructions of APE and in the context of the ongoing disputes between APE and Expro Marine. [19] The Defedants submitted that the contents of the 1st Defendant’s letter were not defamatory for the following reasons: - a) The words complained of, based on their natural and ordinary meaning or innuendo, do not bear any defamatory meanings; b) The words complained of are also incapable of bearing any defamatory meaning when viewed in the proper context; c) Being an inter-solicitor correspondence, the contents of the 1st Defendant’s letter do not involve any reflection upon the personal characters of the 2nd and 3rd Plaintiffs nor the professional or trading reputation of the 1st Plaintiff; and d) The meanings or imputations alleged by the Plaintiffs are not capable of being defamatory because they do not meet the necessary threshold of seriousness required. [20] Based on the above, the Defendants submitted that the meanings of the words in the 1st Defendant’s letter are not prima facie defamatory. Therefore, the Plaintiffs have no reasonable cause of action against the Defendants. [21] Alternatively, the Defendants submitted that even if the words in the 1st Defendant’s letter meant and/or are capable of conveying the meanings as alleged by the Plaintiffs, the Defendants submitted that the words were published on an occasion of absolute privilege based on the following reasons: - a) The 1st Defendant’s letter was issued in the course of legal proceedngs and/or ancillary to the legal proceedings between APE and Expro Marine; b) The 1st Defendant’s letter was issued in coram judice; c) The 1st Defendant’s letter was brought into existence for the purposes of the ongoing proceedings between APE and Expro Marine; d) The 1st Defendant’s letter was issued to set out APE’s position in view of the fact that the Plaintiffs were illegally practicing law in Sarawak. The Defendants were advancing their client’s case. Such correspondence is practically necessary and as such, should be absolutely privilege; and e) The 1st Defendant’s letter ought to be absolutely privileged to protect the advocates, the Defendants, from a flank attach. [22] Next, the Defendants submitted that the Plaintiffs’ claim is scandalous, frivolous, and/or vexatious by virtue of the following: a) The Plaintiff’s claim is groundless and has no prospect of success based on the background facts set out by the Defendants; b) The claim is frivolous and should never have been instituted. In this respect: i) The 1st Defendant’s letter was issued on the specific instructions of APE; ii) The 1st Defendant’s letter was issued in the specific context of the ongoing disputes between APE and Expro Marine before the Courts as well as the arbitral tribunal; and iii) As such, the 1st Defendant’s letter sought to place APE’s factual and legal position on record before the Courts, arbitral tribunal and before the Plaintiffs. c) In the premises, the Defendants submitted that the Plaintiffs instituted this claim to embarrass or vex the Defendants. This is in the light of the fact that the Defendants’ client, APE, has instituted the AMAL Suit, Injunction Application and Disciplinary Proceedings against the Plaintiffs.’ [23] As such, the Defendants submitted that the Plaintiffs claim ought to be struck out for being scandalous, frivolous and vexatious. [24] Next, the Defendants submitted that the Plaintiffs’ Statement of Claim ought to be struck out for being defective in law. The Defendants submitted that the Statement of Claim is breach of O. 78 of the ROC 2012. [25] The Defendants submitted that the Plaintiffs have failed to give particulars of the facts which the Plaintiffs rely upon for alleging that the words contained in the 1st Defendant’s letter are used in a defamatory sense other than their ordinary meaning. Therefore, the Statement of Claim does not fulfil the requirements pursuant to O. 78 of the ROC 2012. [26] Lastly, the Defendants submitted that the Plaintiffs’ claim is an abuse of the process of the Court. The Defendants further submitted that the present action is nothing more than a tactical ploy in retaliation against the Defendants who are the advocates of APE. [27] For the above reasons, the Defendants prayed for the Application to be allowed. iii. Submission by the Plaintiff [28] The submission of the Plaintiff can be summarized as follows: a) The Plaintiffs’ pleaded case has disclosed a prima facie defamation suit against the Defendants; b) The Plaintiffs’ have pleaded malice committed on the part of the Defendants; c) The Plaintiffs’ pleadings have satisfied the statutory rules of pleadings under the ROC 2012; d) The Defendants are not entitled to the defense of absolute privilege; e) The Defendants have failed to prove the defence of qualified privilege through affidavit evidence to strike out the Plaintiffs’ claims; and f) The Defendants have failed to prove tactical ploy & ulterior motive on the part of the Plaintiffs through affidavit evidence to strike out the Plaintiffs’ claim. B. Findings and Decision of the Court [29] Having appraised the facts adduced by all the parties through affidavits and the exhibits, and after having considered the submissions by the learned counsels for all parties, I allow Defendants’ application to strike out the Plaintiffs’ claim against Defendants. My decision is based on the following findings. i. Striking Out Pleadings under Order 18 Rule 19 [30] Order 18 Rules 19(1), ROC 2012 reads as follows:

“Striking out pleadings and endorsements

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [31] In the landmark case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, Mohamed Dzaiddin SCJ (as he then was) held in page 43, paragraphs G – I as follows :- “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v. Wilkinson, Heywoord & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG pf Duchy of Lancaster v L & NW Rly Co 8). 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 (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on pleadings and the point set down for argument under O 33 r 3 (which is pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. …It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out.” [32] In the Federal Court case of Owen Sim Liang Khui v. Piasau Jaya Sdn. Bhd. & Anor [1996] 4 CLJ 716, Gopal Sri Ram JCA (as he then was) held in page 744, paragraphs H - I as follows:- “The power to summarily strike out a pleading must be sparingly exercised, and in respect of the philosophy that underlies the exercise of that power, we can do no better than to quote from the judgment of Mohamed Dzaiddin SCJ in Bandar Builder Sdn. Bhd. v. United Malayan Banking Corp. Bhd. [1993] 4 CLJ 7; [1993] 3 MLJ 36 at p. 44: This court as well as the court below is not concerned at this stage with the respective merits of the claims. But what we have to consider is whether the counterclaim discloses some cause of action and, likewise, whether the defence to counterclaim raises a reasonable defence. It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (see Moore v. Lawson [1915] 31 TLR 418 and Wenlock v. Moloney & Ors.[1965] 1 WLR 1238). See also Honan Plantations Sdn. Bhd. v. Kerajaan Negeri Johor [1998] 3 CLJ 253; [1998] 2 MLJ 498 CA; New Straits Times (Malaysia) Sdn. Bhd. v. Kumpulan Kertas Niaga Sdn. Bhd. & Anor [1985] 1 LNS 1; [1985] 1 MLJ 226 FC; Drummond-Jackson v. British Medical Association and others [1970] 1 All ER 1094 CA and the old English case of Attorney-General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch. 274 CA. When it is shown that there is a reasonable cause, however weak it is, the court should refuse the application.” [33] In Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1, Ramly Ali FCJ held: “[27] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75; [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following passage A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 3 CLJ 305; [1997] 2 MLJ 565 (Federal Court)). The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be 'obviously unsustainable'. The stress is not only on the word 'unsustainable' but also on the word 'obviously' ie, the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial.” [34] As I have written earlier, the Defendants have submitted four grounds of which, in my opinion, eventually proved that the Plaintiffs’ claim ought to be struck out. I will now go in depth on how the Defendants’ have successfully demonstrated to the Court through each ground that the Plaintiffs have failed to prove a reasonable cause of action, the Plaintiffs’ claim is scandalous, frivolous and vexatious and also an abuse of the process of the Court. ii. Alleged Defamatory Statements [35] With regard to the alleged defamatory statements, the Defendants referred to the Court of Appeal case of Chok Foo Choo @ Chok Ke Lian v. The China Press Sdn Bhd [1999] 1 MLJ 371 at para 374E where Gopal Sri Ram JCA (as he then was) decided as follows: “It cannot, I think, be doubted that the first task of a court in an 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 a 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 or inference which a reasonable reader, guided not by any special but only 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. In my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part? If the question invites an affirmative response, then the words complained of are defamatory. (See JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334.) Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393, collected and reviewed the relevant authorities upon this branch of the subject and I would, with respect, expressly approve the approach adopted by him. … Having decided whether the words complained of are capable of bearing a defamatory meaning, the next step in the inquiry is for a court to ascertain whether the words complained of are in fact defamatory. This is a question of fact dependent upon the circumstances of the particular case. In England, libel actions are tried by judge and jury and the question is left for the jury to determine. However, in this country, libel actions are tried by a judge alone, he is the sole arbiter of questions of law as well as questions of fact. He must, therefore, make the determination….” [Emphasis Added] [36] Gatley on Libel and Slander (12th Edition) provides that: " [2.4] Threshold of Seriousness In addition to the requirement that the imputation conveyed must have an effect identified in one of [the] definitions discussed above, the imputation must meet the necessary level of seriousness. As Tugendhat J explained in Thornton v Telegraph Media Group: “Whatever definition of ‘defamatory’ is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims.” … [3.30] Context and circumstances of publication. “It is necessary to take into consideration, not only the actual words used, but the context of the words.” Words in themselves apparently innocent may be shown to have a defamatory meaning when they are read with reference to the circumstances in which they were uttered or written, and with reference to the context in which they appear." However, the context in which the words appear may also have the effect of negativing any defamatory meaning. Words which are not in themselves defamatory may, from the whole context in which they are published, convey a defamatory imputation. So, the statement that C left in a hurry on its face imputes nothing bad to C but wears a different air when the context shows that what he left was his employment and there were disciplinary proceedings pending..." [37] To enable me determining whether the words complained of are capable of defaming the Plaintiffs, I will now reproduce the words complained by the Plaintiffs from the 1st Defendant’s letter, in verbatim, and analyse them before coming to my finding: Paragraph No. Contents 2 & 3 Mr. Jarrett Ong Kah Lok and Mr. Tuw Min Ric from Messrs. Ong, Ric & Partners of C-2-7, Plaza Damas, No. 60, Jalan Sri Hartamas 1, 50480 Kuala Lumpur were present in their purported capacity as “supervising solicitors” for Expro Marine Sdn. Bhd. We (Thomas Shankar Ram & Co. Advocates) were not notified beforehand by either Messrs. Lo & Partners and/or Messrs. Ong, Ric & Partners that Mr. Jarrett Ong Kah Lok and Mr. Tuw Min Ric purporting to act as “supervising solicitors” would be attending the virtual meeting with our client in our absence. 4 We wish to place on record that the conduct of both Messrs. Lo & Partners and Messrs Ong, Ric & Partners, is highly improper, unprofessional and constitutes serious breaches (i) The Advocates (Practice and Etiquette) Rules 1988, Section 9, 10 and 16 of the Advocates Ordinance (Chapter 110) which are in force in Sarawak and (ii), the legal Profession (Practice and Etiquette) Rules 1978 (under Legal Profession Act 1976) in force in West Malaysia. 4(e) Fifthly, where an opposing party is legally represented, no advocate and solicitor acting for the counter-party ought to (i) appear without prior notice and express consent and/or (ii) put questions or seek to interrogate representatives from the opposing party in the absence of their advocate and solicitor. To this end, the specific questions put by Mr. Jarrett Ong Kah Lok and Mr. Tuw Min Ric vis-à-vis the terms of the Court of Appeal Order at the virtual meeting on 12/7/2021 in the absence of Messrs. Thomas Shankar Ram & Co who act for APE is most improper and a clear breach of Rule 42 of the Legal Profession (Practice and Etiquette) Rules 1978… 5 We wish to place a formal record that such conduct of both Messrs. Lo & Partners and Messrs. Ong, Ric & Partners is highly irregular, improper, and unprofessional. We specifically remind Messrs. Ong, Ric & Partners and Messrs. Lo & Partners to ensure that they respect and abide by the law such that they endure that Messrs. Ong, Ric & Partners KL do not practice law in Sarawak and/or appear in Sarawak related matters for which they do not have any ad hoc permission to appear unless we are permitted to do so by the Advocates Association of Sarawak and/or by way of a specific court order. 6 For the record this is not the first time that Messrs. Ong, Ric & Partners KL had acted in such manner in unlawfully and/or improperly interfering disputes before the courts of Sarawak, aided and abetted by Messrs. Lo & Partners by breaching Sarawak Advocates Ordinance (Chapter 110) … It appears that both Messrs. Ong, Ric & Partners and Messrs. Lo & Partners are persistent in continuing to violate the law with impunity. 7 We invite both Messrs. Ong, Ric & Partners and Messrs. Lo & Partners to ensure that they practice law in accordance with proper rules of professional etiquette in force both in Sarawak and in West Malaysia. 9 We are instructed to demand written confirmation from both Messrs. Lo & Partners and Messrs. Ong, Ric & Partners expressly recognising that their conduct as set out of the above is improper, irregular, unprofessional, in breach of the rules of professional etiquette and that you will both cease such conduct moving forward within forty-eight (48) hours from the date of this letter. We also demand that you both provide us with an express apology and your respective undertakings not to repeat such unprofessional and improper conduct, failing which we reserve the right to take such action as is appropriate. [38] Applying the test propounded by the Court of Appeal in Chok Foo Choo (supra), and the guide provided in Gatley on Libel and Slander, I am in agreement with the Defendant that the words complained of are not defamatory. Firstly, the words complained of, based on their natural and ordinary meaning do not bear any defamatory meanings. It is also apparent to me that the words complained of by the Plaintiffs, when viewed in the proper context, are not capable of bearing a defamatory meaning. The words complained of are also incapable of bearing any defamatory meaning when viewed in the proper context of the issuance: that the words were part of the letter dated 15.07.2021 which was an inter-solicitor corresponden issued in the context of ongoing disputes between their respective clients. The content also does not involve any reflection upon personal characters of the 2nd and 3rd Plaintiffs nor the professional or trading reputation of the 1st Plaintiff. Lastly, as per the discussion in para [2.4] of Gatley on Libel and Slander above, the meanings or imputattions alleged by the Plaintiffs are not capable of being defamatory because the context of the issuance of the letter do not meet the necessary threshold of seriousness required. [39] Based on the above reason, I find that the words complained of by the Plaintiffs are not prima facie defamatory. Therefore, it failed the test as propounded in Chok Foo Choo (supra). Since the crux of the Plaintiffs’ claim for defamation revolved around the 1st Defendant’s letter and no other, and the Defendants have successfully demonstrated to the Court that the words complained of by the Plaintiffs in the 1st Defendant’s letter are not prima facie defamatory, I find that the Plaintiffs has failed to disclose a reasonable cause of action against the Defendants. By this reason alone, it is sufficient for me to allow the Application as per O. 18, r. 19(1)(c)(a) and (b). iii. Absolute Privilege [40] Alternatively, the Defendants submitted that even if the words complained of by the Plaintiffs meant and/or are capable of conveying the meaning as alleged by the Plaintiffs, the Defendants submitted that the words complained of were published on an occasion of absolute privilege. [41] Since I am of the view that the words complained of are not prima facie defamatory, it is no longer my duty to deal with the defence of absolute privilege raised by the Defendants. However, for the purpose of completeness, I shall now look into it, however, briefly. [42] Firstly, the Defendants referred to the landmark case of Lincoln v Daniels [1962] 1 QB 237 at page 257: “How, then, it is contended that its proceedings are affected by the absolute privilege enjoyed by the Bench of an Inn? The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watso v. M’Ewan, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. [Emphasis added] [43] The principles enumerated in Lincoln (supra) has been adopted numerously in Malaysia by the courts of various level. This can be seen in the Court of Appeal cases of S Ashok Kandiah v Dato’ Yalumallai Muthusamy [2011] 1 CLJ 460 at page 470 - 472, Hock Peng Realty Sdn Bhd v. Ting Sie Chung [2018] 2 MLJ 51 at page 62 – 64 and the High Court case of Gurbachan Singh v Pritam Singh [2015] 7 CLJ 121 at page 126 – 131, to name a few. [44] In S Ashok Kandiah (supra), the facts of which I find very relevant to our present case, Abdul Malik Ishak JCA, beside adopting the ratio in Lincoln (supra),has succinctly explained this: “The Defence Of Absolute Privilege [6] The learned High Court judge erred in holding that the defence of absolute privilege raised by the defendants was devoid of merit bearing in mind that the impugned letter was:

(i) published in connection with judicial proceedings; and

(a) acts done in "corem judice" (i. e. in the presence of the court) or in the course of proceedings by judges, counsel and witnesses, and includes the contents of documents put in as evidence;

(b) acts done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings; and

(c) evidence which a witness gave coram judice extends to the precognition or proof of that evidence taken by solicitor. [48] There is no dispute that the 1st Defendant is a legal firm acting on behalf of APE in the ongoing disputes between APE and Expro Marine. There is also no dispute that the 1st Defendant’s letter was issued on the instructions of APE. [49] I agree with the submission of the Defendants that the 1st Defendant’s letter was issued in the course of legal proceedings and/or ancillary to legal proceedings between APE and Expro Marine. The 1st Defendant’s letter was also issued in coram judice and was brought into existence for the purposes of the ongoing proceedings between APE and Expro Marine. [50] For the above reason, I am satisfied that, even if the words complained of are capable of bearing a defamatory meaning, which I find to be in negative, the defence of absolute privilege under the 1st category, i.e acts done in coram judice and 2nd category, i.e acts done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings, would still be applicable for the Defendants in this case. [51] I also find guidance in Wong Shui Kee Roger v Victor LL Chu [2003] 1 HKC 125 where Hong Kong Court of Appeal held that inter-solicitor correspondence attracts the defence of absolute privilege. At pages 131 to 132, the court held that absolute privilege covers any document which has been brought into existence for the purpose of the proceedings. Also, the court further held at page 136 that solicitors' correspondence made in the course of a legal proceeding which set out a party's position are practically necessary to advance the administration of justice and as such, are absolutely privileged. [52] I also refer to another local case of Chan Tse Yuen & Co (suing as a firm) v Yap Chin Gaik, Elaine & 2 Ors [2017] MLJU 1459. In this case, the issue arose as to whether a defamatory case was actionable based on a letter of demand sent by solicitors on behalf of their client to the counterparty's solicitors which contain allegations which are defamatory of the counterparty's solicitors. The key issue was whether the case may be struck out by reason of the defence of absolute privilege. Nantha Balan J (as His Lordship then was) discussed and applied the ratio in Wong Shui Kee (supra) and held (at pp 37- 39): '[103] in particular, it is Important to emphasize that in Ashok Kandiah's case the Court of Appeal approved the following passage from Gatley on Libel and Slander 11 Ed at p. 385 which reads as “the privilege will attach to any matter incidental to the proceedings ‘practically necessary for the administration of justice’. That it is convenient is insufficient. However, with the exception of proofs of evidence of witnesses or inquiries in criminal cases, it is not enough that proceedings are contemplated: they must be actually on foot or the matter in Issue must be an act which initiates them. " … [106] Hence any which way that one looks at it or analyses it, the impugned letter in the present case is a document that is inherently related to or is ancillary and arising from the taxation OS and is accordingly protected by absolute privilege. [107] As rightly observed in Roger Wong’s case, absolute privilege exists for the protection of the public interest in the administration of justice and one of its salient objectives is to immunize parties from a “flank attack”. [108] Here, the instant defamation suit against D3 and its solicitors (D1, D2) is quite clearly a retaliation or a "side attack" for the issuance of the impugned letter which contained serious allegations pertaining to the plaintiff's conduct vis-a-vi's matters which are the subject of on-going legal proceedings, namely the taxation OS. [109] I am cognizant of counsel for the Plaintiff’s impassioned plea that this action should not be struck off smmarily and argued rather trenchantly that if the plea of absolute privilege is upheld then it would open the “floodgates” and that all kinds of abusive and defamatory letters will be issued against parties who will not be able to vindicate their damaged reputations. But I do note that the HKCA recognized that the courts are very guarded In applying the defence of absolute privilege as it means that a claimant will be deprived of pursuing a claim for defamation so as vindicate his reputation notwithstanding that the impugned publication may be inherently untruthful or malicious. [110] At the same time, it is important to note that the HKCA in Roger Wong’s case quite rightly observed that the categories of absolute privilege are never closed. In my view, the defence of absolute privilege must be permitted to develop in an incremental manner so that the administration of justice is not stultified by taking a narrow or pedantic approach. It is trite that in every situation where absolute privilege applies, it leaves the claimant whose reputation has or may have been injured, without a legal remedy. [111] Here the claimant is a law firm. But, the law makes no distinction and applies equally to all. It is important to emphasize that the raison de-etre for the defence of absolute privilege is the public interest in the due and proper administration of justice. [112] Thus, regardless of the alleged merits of the plaintiff's claim for defamation, if the situation or occasion is one which the law recognizes as being protected by absolute privilege, then the defence of absolute privilege would be denuded and emasculated if the plaintiff’s action fro defamation is ot struck out and dismissed summarily. The judgment of Ma JA in Roger Wong’s case makes it clear that the defence of absolute privilege is, "as the name suggests, absolute privilege in nature. It will provide a complete answer to any claim for defamation even where the relevant remarks are completely untrue or made with malice”. Thus, it is the law that a claimant in a suit for defamation will be without a remedy if absolute privilege succeeds. [113] There is no purpose in going for trial when the facts/events in support of the defence of absolute privilege are undisputed. This brings me to the issue of whether the plaintiff had notified 03 that they had applied for and received the refund of the stamp duty sum. This may be seen from the plaintiff's letter dated 27 July 2016, where the plaintiff appears to have notified Fantastic Megaway Sdn Bhd that they had received the stamp duty sum of RM8,445,567.00 and that they had deducted a sum of RM2,368,582.29 and that the balance sum of RM6,076,978.77, will be held in a fixed deposit account pending instructions for the release of the balance sum. [114] If this is to be construed as D3 having approved of or acquiesced to the plaintiff's conduct In applying for the refund and receiving it and making the deduction for legal fees and disbursements, then it will only be relevant to establish that the allegations in the impugned letter were untrue, issued recklessly or in maliciously. But these are issues which matter not one jot If absolute privilege applies. It will of course be relevant for the defence of qualified privilege, but not where absolute privilege applies. [115] To conclude, in the present case, for the reasons as discussed above, I am impelled to the view that the defence of absolute privilege applies to protect the defendants from liability for defamation arising out of the publication of the impugned letter to Messrs. Chew Biman as it:-

(a) arose out of or was incidental to or ancillary to the taxation OS and was necessary to uphold the public interest the administration of justice;

(b) a letter which is the precursor to and which initiated suit 810;

(c) necessary to prevent a flank attack being made by the plaintiff against D3 in the taxation OS or by way of the instant action in defamation." [53] To further strengthen this case, the Defendants have also highlighted the following cases which afford immunity to the advocate and solicitor in corresponding on behalf of their clients during the course of the litigation of a dispute be it before the courts or an arbitral tribunal:

(a) Wee Richard and other v Wong Meng Meng & Partners [1995] 1 SLR(R) 593 at pg. 602 to 604, albeit by reference to the doctrine of qualified privilege;

(b) Niranjan Dolly K v Toh Laye Lan (Zhuo Lilan) [2002] SGHC 294 at pp 614 – 615;

(c) Sarjit Singh Khaira v Datuk Fong Joo Chung & Ors [1997] MLJU 22 at paragraphs 20 to 22; and

(d) Boxius v Goblet Freres and Others [1894] I QBD 842 at pp 845 to 846 by reference to the dicta of Lord Esher M. R. and at pg. 846 to 847 by reference to the dicta of Lopes LJ. [54] In view of the foregoing authorities and discussion, I agree with the Defendants that the letter dated 15.07.2021 is protected by the defence of absolute privilege:

(a) the letter dated 15.07.2021 was issued in the course of legal proceedings and/or ancillary to legal proceedings between APE and Expro Marine;

(b) the letter dated 15.07.2021 was issued in corem judice (i. e. in the presence of the court);

(c) the letter dated 15,07.2021 was brought into existence for the purposes of the ongoing proceedings between APE and Expro Marine;

(d) the letter dated 15.07.2021 was issued to set out APE's position in view of the fact that the Plaintiffs were illegally practising law in Sarawak. The Defendants were advancing their client's case. Such correspondence are "practically necessary” and as such, should be absolutely privilege; and

(e) the letter dated 15.07.2021 ought to be absolutely privileged to protect the advocates, the Defendants, from a "flank attack". [55] In the circumstances, as held by Nantha Balan J (as His Lordship then was) in Chan Tse Yuen (supra), the material facts in our present case are also one in which the law recognises as being protected by absolute privilege. Therefore, the Plaintiffs' action herein ought to be struck out and dismissed summarily. iv. Defective Statement of Claim [56] The Defendants also submitted that the Statement of Claim ought to be struck out for being defective in law. [57] O. 78, r. 3 of the ROC provides: “3 Obligations to give particulars

As per Big Blue Taxi (supra), the non-compliance to such rule is fatal to the Plaintiffs’ case. As such, I found that the failure to the Plaintiffs to comply with such rules would be prejudice against the Defendants. Therefore, I am of the view that the Plaintiffs’ claim, once again, ought to be struck out as per O. 18, r. 19(1)(c) of the ROC 2012. v. Abuse of Process and/or Tactical Ploy and Ulterior Motive [66] Lastly, the Defendants submitted that the Plaintiffs’ claim is an abuse of the process of the Court. The Defendants submitted that this action is nothing more that a tactical ploy in retaliation against the Defendants. In this regard, the Defendants submitted that this action has been instituted in bad faith and is an abuse of the process of this Court. [67] The Defendants referred to the Court of Appeal case of Indah Desa Saujana & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11 where Low Hop Bing JCA (as he then was) in delivering judgment of the Court held that: “ABUSE OF THE PROCESS [80] The court has an inherent jurisdiction to prevent an abuse of its process: Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16 (SC). [81] Illustrations of an abuse of the process of the court include:

(a) An intention to embarrass the defendants: Ansa Teknik (M) Sdn Bhd v Cygal Sdn Bhd [1989] 2 MLJ 423; or

(b) Where the process of the court has not been used in a bona fide manner and has been abused: Hadi bin Hassan v Suria Records Sdn Bhd [2005] 3 MLJ

[82] The categories of abuse of process of the court are never closed and will certainly proliferate pursuant to the myriad of circumstances available from the factual matrix found in each particular case. [83] In Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1988] 1 SLR 374, the Singapore Court of Appeal explained the scope of ‘an abuse of the process of the court’ under O 18 r. 19(1)(d) which is in pari materia with ours. The terms has been given a wide interpretation by the courts and includes considerations of public policy and the interests of justice. It signifies that the process of the court must be used bona fide and properly and must not be abused. On the facts before us, the defendants have established an abuse of the process of the court.” [68] The Defendants submitted that it is pertinent to note that the AMAL Suit, Injunction Application and Complaint Proceedings were commenced by APE against the Plaintiffs based on the various breaches of the law and professional rules. [69] In the circumstances, I am again in agreement with the Defendants that the Plaintiffs are not genuinely seeking redress but instead, the Plaintiffs are seeking to injure the Defendants personally and to impede the Defendants exercise of their duties and obligations to their client, APE, by way of the present action. [70] The 1st Defendant’s letter dated 15.07.2021 was issued on behalf of the 1st Defendant’s client, APE, in the course of the disputes between APE and Expro Marine. It is the Plaintiffs’ submission that the Defendants cannot raise the defence of absolute privilege since the Defendants had carbon-copied the 1st Defendant’s letter to unnecessary people. To refute, the learned counsel of the Defendants premised that the Plaintiffs’ argument was misplaced, and the 1st Defendant’s letter was indeed carbon-copied to those who have legitimate interest on the dispute. [71] I agree with the Defendants’ submission on this, and I find that those individuals to whom the letter was carbon copied indeed have legitimate interest concerning the content of the letter. As eloquently put by the Defendants that since the dispute was pending before the High Court, Court of Appeal and Federal Court as well as the arbitrator, it is only proper that relevant court officers to be informed of the matter. Likewise, I also find that it is appropriate for the Advocates Association of Sarawak to be in the loop as the said letter was concerning the alleged breach of the Advocate Ordinance Sarawak 1953 by unqualified individual(s). [72] Even if I am wrong on this and even if I am to agree with the Plaintiffs’ arguments, I am of the view that the Plaintiffs’ action should still be dismissed on the basis of limited publication. The English Court of Appeal case of Dow Jones & Co v Jameel [2005] EWCA Civ 75 has properly laid down the principle of limited publication. In that case, the impugned article was only published to 5 people. Hence it was held that the harm done to the claimant’s reputation by said publication was minimal. The English Court of Appeal opined that even if the claimant succeeded in his claim, the amount between damages and the cost of defamation would be out of proportion since the damage suffered by the claimant was minimal. [73] The ratio in Jameel (supra) was followed locally in Chan Tse Yuen (supra) where His Lordship S Nantha Balan J (as he then was) observed that: “[127] The next point is whether the suit should be struck out because of the limited publication to Messrs Chew Biman only. In so far as there was publication only to Messrs Chew Biman, the question is whether it is proportionate, on a cost-benefit analysis, for this suit to go to trial. [128] The cost-benefit calculation is done by analyzing the damages that a plaintiff may receive in the event he succeeds at trial, which is in turn analyzed premised on the extent of publication of the defamatory words. In Jameel’s case, the defamatory words were published to five people, one of whom was the plaintiff’s solicitor, and another three who were persons associated with the plaintiff. The English Court of Appeal struck out the plaintiff’s claim on the basis that damages, if awarded, would be a small amount, which would have been disproportionate to the cost of trial. The approach in Jameel has since been affirmed in our jurisdiction in Sulaihah bt Maimunni v UEM Builders Bhd & Anor [2012] MLJU 1088 which struck out a defamation suit by adopting the same approach. There is no doubt at all that publication was limited to Messrs Chew Biman who, much like the case in Jameel, is ‘of the same camp’ with the plaintiff as he was and still is the plaintiff’s solicitor. Therefore, following Sulaihah’s case, the present suit should be struck out for the same reasons. … [132] Therefore, applying the cost-benefit jurisprudence as enunciated by Jameel’s case, and taking into account all the circumstances, including the very limited publication to just one person/entity and particularly since the impugned letter does not seem to have dented the plaintiff’s reputation in the eyes of Messrs Chew Biman since they are continuing to act for the plaintiff in the taxation OS, I am of the view that it would be an abuse of process for this case to go for trial, merely to vindicate the plaintiff’s reputation for what is very likely, at the end of the day to be a meagre award of damages. As such, based on the peculiar circumstances of this case, I am of the view that based on principle established in the Jameel’s case, the continuation and progression of this action to trial, purely to vindicate the plaintiff’s reputation for publication of the impugned letter to a law firm with only one lawyer and who seems not to be affected by the serious allegation in the impugned letter and continues to act for the plaintiff in the taxation OS, would be an abuse of process. On these grounds I hold that the plaintiff’s suit for defamation should be struck out and dismissed.” [Emphasis added] [74] As mentioned earlier, the Plaintiffs’ action for defamation is founded on the contents of the 1st Defendant’s letter dated 15.07.2021 which, as eloquently put by the learned counsel of the Defendants, was an inter-solicitor correspondence issued in the context of ongoing disputes. It was also pleaded by the Defendants and as what can be seen from the letter exhibited, the 1st Defendant’s letter was only carbon-copied to 5 other interested and related parties who have legitimate interest to the content of the letter. The cost-benefit analysis does not justify a full trial for such matter. Therefore, following the ratio in Jameel (supra) and Chan Tse Yuen (supra), it is trite that such minimal publication is petty and hence must be dismissed as such. For the above reasons, I am of the view that the Plaintiffs’ claim ought to be struck out by virtue of O. 18, r. 19(1)(d) of the ROC 2012. C. Conclusion [75] Having read the affidavits and exihibits filed before this Court and having heard the submissions by the parties, I find that the Defendants had successfully demonstrated to the Court that the Defendants had fulfil the tests as propounded by the Apex Court in Bandar Builder (supra) and Seruan Gemilang (supra). I am satisfied that the Plaintiffs had failed to disclose a reasonable cause of action against the Defendants. I also find that the Plaintiffs’ claim for libel falls within the very definition of scandalous, frivolous and vexatious claim and an abuse of the process of the Court. Based on the above reasons, I hereby allow the Application with cost. The Statement of Claim of the Plaintiffs is hereby struck out and the writ is thereby cancelled. Dated: 19th September, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiff Koh Wei Jie & Leong Jin Hoong Messrs. Ong, Ric & Partners Advocates & Solicitors For the Defendant Sunil Abraham Messrs..Cecil Abraham & Partners Advocates & Solicitors Table of Authorities Case Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 Big Blue Taxi Facilities Sdn Bhd v Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2018] 9 MLJ 147 Boxius v Goblet Freres and Others [1894] I QBD 842 Chan Tse Yuen & Co (suing as a firm) v Yap Chin Gaik, Elaine & 2 Ors [2017] MLJU 1459 Chok Foo Choo @ Chok Ke Lian v. The China Press Sdn Bhd [1999] 1 MLJ 371 Dow Jones & Co v Jameel [2005] EWCA Civ 75 Gurbachan Singh v Pritam Singh [2015] 7 CLJ 121 Hock Peng Realty Sdn Bhd v. Ting Sie Chung [2018] 2 MLJ 51 Indah Desa Saujana & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11 Lincoln v Daniels [1962] 1 QB 237 Niranjan Dolly K v Toh Laye Lan (Zhuo Lilan) [2002] SGHC 294 Owen Sim Liang Khui v. Piasau Jaya Sdn. Bhd. & Anor [1996] 4 CLJ 716 S Ashok Kandiah v Dato’ Yalumallai Muthusamy [2011] 1 CLJ 460 Sarjit Singh Khaira v Datuk Fong Joo Chung & Ors [1997] MLJU 22 Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 Slim and Others v. Daily Telegraph Ltd and Another [1968] 1 All ER 497 Wee Richard and other v Wong Meng Meng & Partners [1995] 1 SLR(R) 593 Wong Shui Kee Roger v Victor LL Chu [2003] 1 HKC 125 Rules Order 18 Rule 19(1), Rules of Court 2012 Order 78 Rule 3, Rules of Court 2012 Treaties Gatley on Libel and Slander (12th Edition)