THE ROOF REALTY SDN. BHD. v CHY AUTOWORLD SDN. BHD. (yang juga dikenali dan/atau berniaga di bawah nama CAR KING MALAYSIA) (WA-22IP-92-12/2024)

THE ROOF REALTY SDN. BHD. (No. Syarikat.: 201501022481(1147810-W)

DATUK WIRA (DR) NICHOLAS YAP CHUNG HAN (No. K/P.: 810125-14-5735) …PLAINTIF-PLAINTIF

CHY AUTOWORLD SDN. BHD. (yang juga dikenali dan/atau berniaga dibawah nama

DATO’ CALVIN YAP KIM HENG (No. K/P.: 711126-10-5141) …DEFENDAN-DEFENDAN PIHAK-PIHAK DALAM TUNTUTAN BALAS

CHY AUTOWORLD SDN. BHD. (yang juga dikenali dan/atau berniaga dibawah nama

DATO’ CALVIN YAP KIM HENG (No. K/P.: 711126-10-5141) …PLAINTIF-PLAINTIF

THE ROOF REALTY SDN. BHD. (No. Syarikat.: 201501022481(1147810-W))

DATUK WIRA (DR) NICHOLAS YAP CHUNG HAN (No. K/P.: 810125-14-5735)

TAN KOK LEONG (No. K/P.: 610808-08-5667)

CHONG WAI KIT (No. K/P.: 850728-08-6005)

TETUAN CHEE SUN & ASSOCIATES (Didakwa sebagai sebuah Firma) …DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT (Enclosure 24)

The present application, filed by the Defendants in the Counterclaim (hereinafter referred to as "the Defendants (CC)" or "D1-D5 (CC)") via Enclosure 24, seeks to strike out the Counterclaim filed by the Plaintiffs in the Counterclaim (hereinafter referred to as "Plaintiffs (CC)" or "P1- P2 (CC)") pursuant to Order 18 Rule 19 of the Rules of Court 2012 ("ROC 2012"). The Counterclaim is a defamation claim allegedly arising from a solicitor's Letter of Demand dated 6 December 2024 ("the said LOD").

For the avoidance of doubt, D1(CC) and D2(CC) are the named Plaintiffs in the main suit, whereas P1(CC) and P2(CC) are the named Defendants. D3(CC) through D5(CC) are not parties to the main suit in this matter.

The application to strike out is predicated on the different limbs of order 18 Rule 19 of the ROC 2012, namely: a. it discloses no reasonable cause of action or defence, as the case may be; b. it is scandalous, frivolous or vexatious; and c. it is otherwise an abuse of the process of the Court.

Having carefully considered the written submissions of both parties, the affidavits filed, the applicable legal principles, and the authorities cited, I allowed the Defendants’ (CC) application vide enclosure 24 with costs. I now state my grounds for doing so.

As previously stated, the Plaintiffs' counterclaim revolves solely around the allegation of defamation against the Defendants (CC) for the LOD dated 6 December 2024, issued by D1 (CC) and D2 (CC) against the Plaintiffs (CC) prior to the commencement of this legal action.

The factual matrix giving rise to this striking out application can be summarised as follows:

D1 (CC), Roof Realty Sdn. Bhd., is a company incorporated in Malaysia and engaged in the business of real estate agency. D2 (CC), Datuk Wira (Dr.) Nicholas Yap Chung Han, is the founder and main director of D1 (CC). D3 (CC) and D4 (CC), namely Tan Kok Leong and Chong Wai Kit, are also directors of D1 (CC).

Around 2019, D1 (CC) registered three trademarks (the "Trademarks") for use in its business operations. D2 (CC) is the registered proprietor of the Trademarks and has granted D1 (CC) the right to use them in its real estate business.

P1 (CC), CHY Autoworld Sdn. Bhd., also known and trading under the name "Car King Malaysia," is a company engaged in the business of trading in new and used motor vehicles. P2 (CC), Dato' Calvin Yap Kim Heng, is a director and/or principal of P1 (CC).

In or around December 2024, D1 (CC) and D2 (CC) discovered that P1

and P2 (CC) had allegedly used logos substantially similar to and/or closely resembling the aforementioned Trademarks in various promotional materials-including Facebook posts, posters, and advertisements-without authorization, consent, or license.

Following this discovery, D1 (CC) and D2 (CC) instructed D5 (CC), Messrs Chee Sun & Associates, their solicitors, to issue the purported LOD to P1 (CC) and P2 (CC).

The aforementioned LOD alleged, inter alia, that: a) P1 (CC) and P2 (CC) had used D1 (CC)'s registered and trademarked logo without consent or license; b) Such use constituted trademark infringement under Section 38 of the Trademarks Act 1976; c) The unauthorised use caused harm to D1 (CC)'s reputation and goodwill and created confusion among customers; d) The unauthorised use caused severe reputational damage to D1 (CC); e) The unauthorised use constituted a form of defamation by misleading the public into believing D1 (CC) was involved in activities it never undertook.

The said LOD contained the following: a. Immediate cessation of and desistance from all further use of D1 (CC)'s logo and branding; b. Immediate and permanent removal of all usage of D1 (CC)'s logo from all marketing materials, social media platforms, websites, and other media; c. Publication of an unreserved public apology within forty-eight

hours on Facebook and all other available mediums; d. Payment of general damages in the sum of RM10,000,000.00; e. Provision of a written undertaking to refrain from future use of D1 (CC)'s logo or related intellectual property.

The said LOD concluded with a warning that legal proceedings would be commenced if the demands were not met, without further reference to P1 (CC) and P2 (CC).

The said LOD was sent to P1 (CC) and P2 (CC) via WhatsApp on 6 December 2024 and by Registered Post on 10 December 2024.

On 9 December 2024, P1 (CC) and P2 (CC), through their solicitors Messrs Sulaiman & Taye, issued two responses: a) The first letter refuted the allegations contained within the aforementioned LOD and asserted that P1 (CC) and P2 (CC) had ceased all usage of the purported trademarks. b) The second letter alleged that the aforementioned LOD was itself defamatory and constituted libel against P1 (CC) and P2

(CC).

On the same day, D1 (CC) and D2 (CC) through D5 (CC) responded, refuting the denials and rejecting the allegation of defamation.

As P1 (CC) and P2 (CC) did not comply with the demands stipulated in the aforementioned LOD, D1 (CC) and D2 (CC) filed the Writ and Statement of Claim on 18 December 2024, thereby commencing the Main Suit for, inter alia, trademark infringement, passing off, and unlawful interference with trade.

On 21 March 2025, P1 (CC) and P2 (CC) filed their Statement of Defence and Counterclaim. The Counterclaim alleges that the said LOD is defamatory and constitutes libel against P1 (CC) and P2 (CC). The contents of the LOD are as follows: - Your ref : Please Advise Our ref : GCSKL/ALY/LIT/GEN(2)/0038/03/2024 Date : 6.12.2024 CHY AUTOWORLD SDN. BHD. REGISTERED POST, EMAIL (Commonly known as CAR KING Malaysia) WHATSAPP & FAX [Company No: 201201021761(1006253-K)] Unit 20-05, Level 20, Q Sentral, 2A Jalan Stesen Sentral 50470 Kuala Lumpur And CHY AUTOWORLD SDN. BHD. REGISTERED POST, EMAIL (Commonly known as CAR KING Malaysia) WHATSAPP & FAX [Company No: 201201021761(1006253-K)] H-G-9, Jalan 9 Cpmmaught Avenue Taman Bukit Cheras 56000 Cheras, Wilayah Persekutuan And Dato’ CALVIN YAP KIM HENG REGISTERED POST, EMAIL [NRIC: 711126-10-5141] WHATSAPP & FAX No. 2A, Jalan Bukit Segar, Cheras 56100 Kuala Lumpur, Wilayah Persekutuan Dear Sirs, RE: NOTICE OF DEMAND TO CEASE AND DESIST THE UNATHORISED USE OF LOGO AND BRANDING OF THE ROOF REALTY SDN. BHD. We refer to the above wherein we act for THE ROOF REALTY SDN. BHD. Of Blk A-2-3, Kuchai Exchange, 43, Jalan Kuchai Maju, 13, 58200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur (herein after referred to as “our Client”) We have been instructed by our Client as follows:-

That you, operating under the name and/or commonly known as CAR KING Malaysia, have been using our Client’s registered and trademarked logo and branding (“our Client’s logo”) without our Client’s consent or license on your posters and/or advertisement and/or website and/or Facebook posts which were posted on or around 30.11.2024 and 3.12.2024;

That our Client has duly registered and trademarked our Client’s logo, currently being used by you without authorisation, in 2019 and the trademark registration is still in operation as of date;

That our Client at all material times never authorised you, either directly or indirectly, to utilise our Client’s logo and that our Client has never endorsed and/or affiliated itself with you and/or any of your business activities;

That your unauthorised use of our Client’s logo in association with your business activities of trading in new and used motor vehicles is a direct infringement of our Client’s trademark rights and hence constitutes an infringement of trademark under S. 38 of the Trade Marks Act 1976;

We have also been instructed by our Client that by associating our Client’s logo with your business, you have caused harm to our Client’s reputation and goodwill wherein you have caused a great confusion among our Client’s customers. This is due to the fact that your illegal use of our Client’s logo has created a false impression that our Client is in any way associated with, endorses, or participates in your business activities (which is untrue);

Our Client further instructs us that your illegal use of our Client’s use has also caused severe reputation damage to our Client. At all material times, our Client is not involved in the sale or trade of cars. As such, the unauthorised use of our Client’s logo in your posters and/or advertisement and/or website and/or Facebook posts has materially tarnished our Client’s hard-earned reputation for professionalism and excellence in the real estate industry; and 7. Additionally, we also state that your unauthorised use of our Client’s logo also constitutes a form of defamation on our Client and its reputation as it has misled the public into believing that our Client is involved in activities that it never undertook at all material times. In furtherance to that, this has caused significant damage in our Client’s reputation as it also imputes that our Client is affiliated and/or endorses your business and/or its activities. As such, this has created a false and defamatory implication on our Client and its hard-earned reputation and standing in the society, particularly in the real estate industry.” Based on the foregoing, we have been instructed to demand from you, which we hereby do, for the following :- a) Immediately cease and desist from all further use of our Client’s logo including but not limited to any other brandings or any materials resembling or referencing to our Client’s Logo and/or its name and/or its reputation in any form of manner. b) Immediately and permanently remove all usage of our Client’s logo, including but not limited to any other brandings or any materials resembling or referencing to our Client’s logo and/or its name and/or its reputation in any form of manner, from your marketing materials, social media platforms, websites and other medium (both online and offline) where our Client’s logo has been displayed; c) Withing forty-eight (48) hours from the dated of receipt of this letter, publish and/or caused to be published an unserved public apology to our Client’s satisfaction, which is to be posted, uploaded, and/or published on your Facebook posts and all your other available medium (both online and offline) in terms to be approved by our Client. Such apology must expressly state that:- a. You have no association and/or affiliation with our Client at all material times; b. Our client is not involved in the business of trading in new and used motor vehicles; c. That your use of our Client’s logo was done without our Client’s authorization and was intended to mislead the public to believe that our Client is in any way associated or affiliated with you and/or your business; d) You pay to our Client general damaged in the amount of RINGGIT MALAYSIA TEN MILLION (RM10,000,000.00) for the severe harm caused to our Client’s name, reputation, goodwill, and business operation in lieu of your unauthorised use of our Client’s logo; e) You shall provide a written undertaking that you shall refrain from using our Client’s Logo, including but not limited to any other brandings or any materials resembling or referencing to our Client’s logo, and/or its name reputation in any from of manner, or any related intellectual property in the future. TAKE NOTE that unless the abovementioned demands are met with the prescribed times as mentioned above, we have our Client’s strict instruction to commence a legal proceeding against you, including but not limited to injunctive relief and damages, without any further reference to you, in which event our Client will, hold liable for all costs and expenses incurred. Your faithfully, MESSRS CHE SUN & ASSOCIATES

The Counterclaim pleads that the words used in the said LOD reproduced above, in their natural and ordinary meaning and by innuendo, mean and were understood to mean that: a) P1 (CC) and P2 (CC) are capable of using another party's property unlawfully; b) P1 (CC) and P2 (CC) are capable of committing theft of intellectual property; c) P1 (CC) and P2 (CC) are not reliable; d) P1 (CC) and P2 (CC) are capable of lying to the public; e) P1 (CC) and P2 (CC) are capable of misrepresenting to the public; and f) P1 (CC) and P2 (CC) are dishonest businessmen or parties.

The Counterclaim alleges publication of the said LOD to third parties, specifically: a) D5 (CC) sent the said LOD via WhatsApp from mobile number +6012-2368925 to a third-party mobile number +6017-6070001; b) The said LOD was opened and read by a former employee of P1 (CC) named "Vella" at the business address H-G-9, Jalan 9, Connaught Avenue, Taman Bukit Cheras, 56000 Cheras, Kuala Lumpur.

The Counterclaim seeks declarations, injunctive relief, an apology, general damages, aggravated damages, exemplary damages, interest, and costs.

D1-D5 (CC) filed their Reply to Defence and Defence to Counterclaim on 4 April 2025, and on 18 April 2025 filed the present striking out application via Enclosure 24.

Learned counsel for the Defendants (CC) had raised a preliminary objection at the outset regarding the Plaintiffs' (CC) affidavit in reply. Specifically, learned counsel contends that the affidavit in reply is legally defective because it was neither affirmed nor signed before a Commissioner of Oaths or any party legally authorized to administer oaths and witness the attestation of the Plaintiffs' (CC) affidavit in reply.

It is trite law that any affidavit filed in Court must be signed by the deponent, and the jurat affixed thereto must be completed and signed by the person before whom it is sworn. This fundamental principle is expressly stipulated under O. 41 r. 1(7) of the ROC 2012 which provides as follows:- “O. 41 r. 1(7): Every Affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn”

Learned counsel for the Defendants (CC) forcefully argued that the word "shall" in the aforementioned provision indicates mandatory adherence, precluding any dispensation whatsoever. This submission aligns with the decision in Iris Koto (M) Sdn Bhd v Chong Sam Mooi & Anor [2019] MLJU 619, which clarifies that the filing of an unsworn or unaffirmed affidavit is tantamount to a failure to file any affidavit in Court. “[60] As only the unaffirmed copy of affidavit of service was filed at the time the JID was sought and entered, it was as good as there being no affidavit filed. An unsworn or unaffirmed copy of an affidavit is not an affidavit properly so called.”

I note, as well, that the Plaintiffs (CC) have not filed any affidavit to contradict or correct the material defects evident in the Plaintiffs (CC) affidavit in reply.

In addressing this preliminary objection, regard shall be given to Order 1A of the ROC 2012, which stipulates that in administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice, and not solely to technical non-compliance. This rule mandates that the court not be unduly constrained by technicalities, and further, that it prevents procedural irregularities from affecting the essential justice of the case. The following cases are instructive: a) In Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47 (CA), the Court of Appeal upheld the application of Order 1A. The respondent raised a preliminary objection based on rules 5(3) and 18(3) of the Rules of the Court of Appeal 1994, arguing that the court's copies of the record of appeal were defective because the notice of appeal and memorandum of appeal were unsigned. The Court of Appeal rejected the preliminary objection, noting that the respondent had suffered no prejudice and was therefore precluded from objecting. Furthermore, the Court of Appeal construed the relevant Rules of the Court of Appeal 1994 liberally to ensure that mere technicalities would not impede consideration of the case on its merits. b) In Re VK Sathavisam, ex p Phileoallied Bank (Malaysia) Bhd [2004] 5 CLJ 549, it was held that non-compliance with RHC 1980 Order 46 r 2(3) (now ROC 2012 Order 46 r 2(3)) is a technical non-compliance and is superseded by Order 1A. c) In Abd Hamid Jaafar v Shamsiah dan Keluarga Sdn Bhd [2004] 5 CLJ 381, the failure to state in the affidavit that the deponent reads and understands English was held to be a technical failure. d) In the High Court case of Westport Malaysia Sdn Bhd v Northern Democrats mbH & Co KG [2017] MLJU 236, Azizah Nawawi J (as Her Ladyship then was) held that non-compliance with Order 11 r 4(3) had not resulted in a substantial miscarriage of justice. The Court held that a purely technical error that does not occasion a substantial miscarriage of justice will not be countenanced. e) In Petra Perdana Bhd v Tengku Dato' Ibrahim Petra bin Tengku Indra Petra & Ors [2017] MLJU 410, the central issue was whether compliance with the one-month period stipulated in Order 37 rule 1(1) of the ROC 2012 is mandatory. The learned Judicial Commissioner held that non-compliance constitutes an irregularity that does not nullify the plaintiff's proceedings for assessment of damages, and is curable under Order 1A. f) In OCBC Bank (Malaysia) Bhd v Lim Hock Kok & Anor (kedua-dua berniaga sebagai rakan kongsi di dalam firma ‘Ictinus Home and Building Constructions and Designs’) [2016] AMEJ 1733, CA, the Court of Appeal dismissed a preliminary objection, citing Order 1A of the ROC 2012. The objection was based on non-compliance with Practice Direction No 1 of 2011 regarding the permitted number of pages per volume in the record of appeal.

I find support from the aforementioned cases to rule against the Defendants (CC) with respect to the preliminary objections raised. In the interest of justice, I find that the non-compliance with O. 41 r. 1(7) of the ROC 2012 herein is a mere technicality that does not affect the merits of the application at hand. In the circumstances, I dismiss the preliminary objection raised by learned counsel for the Defendants

(CC).

I will move on to consider the merits of this application.

The power of the courts with respect to a striking-out application is governed by Order 18 rule 19 of the ROC 2012, which states as follows: “O. 18 r. 19: Striking out pleadings and endorsements

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

(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”

The Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 enunciated that a striking out application shall be applicable and adopted by the Court when the claims made are obviously unsustainable.

In our present case, the grounds that the Defendants (CC) are relying on in support of the striking out application are as stated in O.18 r. 19(1)(a), (b), and/or (d) of the ROC 2012 as enunciated above.

Under O. 18 r. 19(1)(a) of the ROC 2012, the requirement for the Defendants (CC) is to prove the absence of a reasonable cause of action in the Plaintiffs’ (CC) claims. The Supreme Court in Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12 explained the meaning of a cause of action as follows: “What then is the meaning of “a cause of action”? “A cause of action” is a statement of facts alleging that a plaintiff's right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action”

With respect to the ground propounded under O. 18 r. 19(1)(b) of the ROC 2012, the Defendants (CC) must demonstrate that the Plaintiffs'

claims are scandalous, frivolous, or vexatious. This was aptly explained in See Thong v Saw Beng Chong [2013] 3 MLJ 235 as follows: - “[15] Sub-paragraph(1)(b) deals with pleading which is 'scandalous, frivolous or vexatious'; while sub-para

(1)(d) deals with 'an abuse of the process of the court'. In Murray v Epsom Local Board [1897] 1 Ch 35 it was held by the court that, 'scandalous' generally refers to matters which improperly cause a derogatory light on someone, usually a party to an action, with respect to moral character or uses repulsive language ... The words 'frivolous or vexatious' generally refer to a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party to the action. In considering whether any proceedings were vexatious or frivolous, one is entitled to and ought to look at the whole history of the matter and it is not to be determined by whether the pleading discloses a cause of action or not”

The Defendants (CC) also seek to utilise the ground propounded under O. 18 r. 19(1)(d) of the ROC 2012 wherein it must be proven that the Plaintiffs’ (CC) claim against the Defendants (CC) form an abuse of the court process. The Court in See Thong v Saw Beng Chong [2013] 3 MLJ 235 succinctly explained the definition of abuse of court process as follows: “[18] Sub-para (d) of the rule deals with pleading which is 'an abuse of the process of the court'. In Castro v Murray (1875) LR 10 Exch 213, the phrase 'abuse of the process of the court' had been described generally to refer to situations where the court's process is used for an unlawful object and not for the actual purpose intended to achieve justice. It involves a process which is contrary to good order established by usage.“

With the above principles in mind, I now move to consider the merits of this application.

The issues which arise for determination are: a. Whether the LOD, as pre-action correspondence issued by solicitors in contemplation of proceedings, is protected by absolute privilege. (Absolute Privilege) b. Whether the counterclaim nonetheless discloses a reasonable cause of action in defamation, particularly regarding publication and meaning. (Publication to 3rd Party) c. Whether malice is properly pleaded and, if relevant, whether it is capable of defeating the applicable privilege based on the pleaded case. (Malice Properly Pleaded)

The Defendants' (CC) position is that the LOD is protected by absolute privilege because it was issued in contemplation of, and as a direct precursor to, legal proceedings-namely, the Main Suit filed on 18 December 2024.

In support, the learned counsel placed particular reliance on the case of Chan Tse Yuen & Co v Yap Chin Gaik, Elaine & Ors [2017] MLJU

Learned counsel for the Defendants (CC) submitted that this authority recognises that pre-action correspondence authored by solicitors, where it is preparatory to litigation, attracts the protection of absolute privilege.

The Plaintiffs (CC) took a diametrically opposed view and submitted that the LOD cannot be deemed as absolute privilege as it is not made during the course of legal proceedings. Learned counsel for the Plaintiffs’ (CC) argued that the extension of absolute privilege to pre-litigation correspondence would run counter to the Federal Court’s caution in Nor Aziz Mat Isa v Sun Teoh Tia (SAC) & Ors [2021] 3 CLJ 18 (Nor Aziz Mat Isa) that absolute privilege should not be extended unnecessarily. The Federal Court in Nor Aziz Mat Isa held as follows: “Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being McCarthy P’s proposition in Rees v. Sinclair [1974] 1 NZLR 180 at 187: The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice ...”

The Federal Court in the Nor Aziz Mat Isa went on to state as follows: - “[24] We respectfully adopt Lord Cooke’s speech. Absolute privilege should not be given any wider meaning than is absolutely necessary in the administration of justice. Any extension of absolute privilege must be “viewed with the most jealous suspicion and resisted unless its necessity is demonstrated”. In the Australian case of Mann v. O’Neill (1997) 145 ALR 682, Brennan CJ, Dawson, Toohey and Gaudron JJ had considered the policy considerations for the extension of absolute privilege to such complaints and concluded in their joint judgment that: It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.”

Premised on the foregoing, learned counsel submitted that the principle of absolute privilege ought not to be extended beyond its necessary ambit in the interest of justice. Learned counsel for the Plaintiffs (CC) contended that, at most, the defence of qualified privilege may be invoked. This stance aligns with the Court of Appeal’s decision in Mohd Basha Baskaran Abdullah & Ors v Lim Chin Sun [2015] 1 LNS 1501, wherein their Lordships held that a lawyer’s letter of demand attracts qualified privilege, which may be rebutted upon proof of malice or bad faith. Learned counsel further argued that, as a matter of policy, to treat letters of demand as absolutely privileged would confer an excessively broad immunity, permitting lawyers to make unfettered statements without legal consequence. Such a position, it was submitted, would imperil the professional responsibility incumbent upon legal practitioners and undermine the integrity of the legal process itself.

Given the significant reliance placed on the case of Chan Tse Yuen & Co v Yap Chin Gaik, Elaine & Ors [2017] MLJU 145, I will begin my analysis by outlining the salient facts and the High Court's decision in that case. The central issue in Chan Tse Yuen is whether absolute privilege protects a solicitor's letter of demand-issued during ongoing legal proceedings, pertaining to such proceedings, or serving as a precursor to a new suit against the targeted party. Consequently, the question arises whether this protection would render the solicitor and their client (at whose behest the letter was issued) immune from liability for defamation.

The salient facts in the case of Chan Tse Yuen are as follows: The plaintiff is a law firm. The 3rd defendant was formerly its client in a high-value conveyancing transaction for the purchase of land. The 1st and 2nd defendants are the solicitors subsequently engaged by the 3rd defendant, with the 1st defendant as the partner in charge.

Under the sale and purchase transaction, stamp duty of RM8,445,561.00 was assessed on the Memorandum of Transfer (“MOT”). The 3rd defendant forwarded the sum to the plaintiff for payment to LHDN, with instructions that if the transaction was aborted, the plaintiff was to seek a refund and reimburse the 3rd defendant.

On 14 December 2015, the 3rd defendant terminated the plaintiff’s retainer. The plaintiff issued a bill of RM2,411,336.58 the next day and withheld transaction documents (including the MOT and stamp duty certificate), asserting a lien. The transaction was later terminated by the vendor and the SPA failed.

The 3rd defendant disputed the bill and commenced taxation proceedings against the plaintiff by Originating Summons filed on 2 June 2016 (“the taxation OS”), seeking taxation of the bill and delivery of transaction documents. The plaintiff was represented in the taxation OS by Messrs Chew Biman & Co.

While the taxation OS was ongoing, the 3rd defendant discovered that the plaintiff had applied to LHDN on 15 February 2016—after termination of retainer—for a refund of the stamp duty, and that the refund was received in June/July 2016. The plaintiff admitted receiving the refunded sum and had utilised the MOT and stamp duty certificate for that purpose.

Following these developments, the 3rd defendant instructed the 2nd defendant to demand repayment. The 2nd Defendant (authored by the 1st Defendant) issued a Letter of Demand, dated 30 November 2016, to the plaintiff's solicitors in the taxation OS. It alleged, inter alia, that the plaintiff had applied for and obtained the refund without authority, failed to remit it, and failed to disclose the matter in affidavits filed in the taxation OS.

The Letter of Demand demanded repayment within 24 hours, warning that civil proceedings and reports (including criminal and Bar Council reports) would follow in the event of non-compliance. Messrs. Chew Biman & Co. responded that they acted only for the taxation OS, following which the Letter of Demand was forwarded directly to the plaintiff.

The plaintiff’s solicitors responded asserting that the Letter of Demand was defamatory. Shortly thereafter, the 3rd defendant lodged a police report and commenced a civil action to recover the stamp duty sum (Suit 810).

On 15 December 2016, the plaintiff filed the defamation suit against the 1st, 2nd and 3rd Defendants, alleging the Letter of Demand conveyed imputations of fraud, breach of trust, dishonesty, and professional misconduct.

The defendants then applied via Enclosures 14 and 22 to strike out the defamation suit, contending that the Letter of Demand was protected by privilege and/or that the action was an abuse of process. The defamation suit was accordingly struck out by the High Court.

In its decision, the High Court found, inter alia, that the impugned letter was protected by absolute privilege. The Court determined that the letter was inextricably connected to the ongoing taxation proceedings and concerned matters incidental or ancillary thereto, specifically affecting the "delivery up of documents" relief and the purpose of obtaining the stamp duty refund. The letter was sent inter partes to the plaintiff's solicitor in the taxation proceedings, and the judge treated this as integral to the administration of justice.

Furthermore, the High Court found that the letter was the immediate precursor to, and treated as having "initiated," the subsequent civil recovery suit (Suit 810) concerning the stamp duty refund. The Court also justified absolute privilege on the grounds of preventing a "flank attack," viewing the defamation action as a retaliatory or side attack arising from litigation-related correspondence. The High Court emphasised that issues such as truth, falsity, recklessness, or malice are irrelevant once the occasion is absolutely privileged. The Court clarified that pre-action letters can, in well-defined circumstances, attract absolute privilege when they are incidental to ongoing proceedings or initiate fresh proceedings tied to those matters-notwithstanding the traditional view that such letters come within the realm of qualified privilege.

In my considered view, the case of Chan Tse Yuen is, in all material respects, on all fours with the present case. In Chan Tse Yuen, the plaintiff sued the defendants for defamation arising solely out of a letter of demand issued against him. The letter of demand was pre-action correspondence to Suit 810, subsequently filed by the third defendant, and served as a warning and demand in respect of the very matters later pleaded in that suit. So, too, here: the counterclaim by the Plaintiffs (CC) rests exclusively on the LOD, which was issued against them before the filing of the Main Suit. It is common ground that this letter operates as pre-action correspondence to the Main Suit brought by D1 and D2 (CC) against the Plaintiffs (CC) in this Court.

In Chan Tse Yuen, the first and second defendants were the solicitors who issued the impugned letter, acting on the instructions of their client, the third defendant, who at all material times was the party responsible for directing that the letter be sent. In the present case, D5 (CC) stands in a directly analogous position to the first and second defendants in Chan Tse Yuen, being the solicitor who, under instructions, issued the impugned letter of demand. Conversely, D1 and D2 (CC) herein occupy the position of the third defendant in Chan Tse Yuen, as the clients who instructed D5 (CC) to issue that letter. By contrast, D3 and D4

have no connection whatsoever with either the counterclaim or the Main Suit.

Finally, as in Chan Tse Yuen, where the defendants invoked the full defence of absolute privilege both to defeat the defamation claim and to support their striking out application, the Defendants (CC) in the present proceedings have squarely pleaded absolute privilege in their Reply to Defence and Defence to Counterclaim, and have likewise relied on the same doctrine as a foundation for their striking out application.

In Chan Tse Yuen, the Court drew significant guidance from the Hong Kong Court of Appeal’s ruling in Wong Shui Kee Roger v Victor LL Chu & Ors [2003] 1 HKC 125 (“Roger Wong”). Central to the Court’s reasoning was the public interest in safeguarding the administration of justice. The Court emphasised that a pre-action letter of demand serves a vital function: it ensures potential parties are duly informed of impending proceedings. Quoting Roger Wong, the High Court in Chan Tse Yuen underscored the importance of absolute privilege for correspondence integral to legal proceedings: “[101] In so far as Roger Wong’s case is concerned, it is my view, that it is a momentous decision in defamation jurisprudence. But it appears to have gained traction in a rather incremental fashion. It is a case which examines the juridical basis for absolute privilege and its necessary conceptual boundaries. It is therefore relevant in the present context to refer the following erudite passages from the judgment of Geoffrey Ma JA (as he then was) (presently Chief Justice of the Hong Kong Court of Final Appeal) where he said:- …

In the present case, for the reasons given by Le Pichon JA, I share the view that the letter fell within the second and third categories. In my view, solicitors’ correspondence (such as the letter) made in the course of legal proceedings which set out a party’s position or stance in relation to any part of the proceedings, advance the administration of justice and are thus absolutely privileged. Such solicitors’ correspondence are also ‘practically necessary’ for the same reasons.”

Applying Roger Wong, the Court in Chan Tse Yuen concluded that the letter in question—which formed the factual foundation of Suit 810—effectively “initiated” the suit and was therefore shielded by absolute privilege.

The same logic applies here. The LOD mirrors the claims later formalized in the main suit. Permitting defamation claims against such pre-action correspondence would undermine the administration of justice. Parties and their legal representatives would be hesitant to issue letters of demand—a practical and necessary step before litigation.

It is neither reasonable nor feasible to require solicitors to “fact-check” every assertion in an LOD to pre-empt defamation claims. The Defendants solicitors (CC) are entitled to absolute privilege when acting to protect their client’s interests—a principle reinforced in Chan Tse Yuen.

On balance, public interest in upholding absolute privilege for pre-action letters outweighs any individual claim of defamation. The High Court in Chan Tse Yuen rightly acknowledged that absolute privilege may, at times, preclude a remedy for reputational harm—but this is necessary to avoid impeding justice: “[109] I am cognizant of counsel for the plaintiff’s impassioned plea that this action should not be struck off summarily 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… [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. [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 for defamation is not struck out and dismissed summarily.”

Crucially, as the Court further held, absolute privilege prevents flank attacks against parties through collateral defamation suits: “[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:- …

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.” [Underlined Emphasis Added]

Similar position applies to the case herein. The defence of absolute privilege applies to protect the Defendants (CC) from liability for defamation arising out of the publication of the impugned LOD.

In attempting to rebut the application of absolute privilege, learned counsel for the Plaintiffs’ (CC) contended that there exists possibility of malice (niat jahat) and claims of “untrue statements” in the said LOD.

In addressing this point, I am guided by the nature of absolute privilege, that it is unfettered by allegations of malice or falsity. If the occasion is absolutely privileged, then allegations of malice do not pry it open. That is the point of the doctrine. Any claim for defamation is unfettered even by any allegations of malice and/or allegedly untrue statements. This submission is in line with the decision in Chan Tse Yuen which explains as below: - “[112] … 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.”

Similar position has been enunciated by the Federal Court in Noor Azman Azemi v Zahida Mohamed Rafik [2019] 3 CLJ 295 which explains as follows:- “[24] In considering this appeal, at the outset, it is necessary to bear in mind that the law recognises that on public policy consideration, on certain occasions a person should be able to speak or write freely and should be free from accountability by way defamation suit even though it was published with full knowledge of its falsity and even with the intention of injuring the plaintiff. When the defence of absolute privilege applies in certain situations, it offers complete protection and the defamation action will be struck out for disclosing no reasonable cause of action. If the occasion is absolutely privileged, then it will be complete defence to a defamation action even if the statement was actuated by malice. [Underlined Emphasis Mine]

Based on the foregoing, I find that any allegations of malice and/or “untrue statements” in the said LOD bears no relevance to the complete shield that is absolute privilege. As such, the Plaintiffs (CC) essentially has failed to provide any rebuttal to the application of absolute privilege.

Learned counsel for the Plaintiffs (CC) argued that Chan Tse Yuen ought not to be followed as Chan Tse Yuen is a High Court decision and is therefore not binding on other High Courts. As I have alluded to in the preceding paragraphs learned counsel placed reliance on the case of Mohd Basha Baskaran B Abdullah & Ors v Lim Chin Sun [2015] MLJU 2215, decision of the Court of Appeal to emphasise that the LOD is only covered by qualified privilege.

I accept, of course, that decisions of the Court of Appeal bind the High Court. But what binds is the ratio on the point in issue. The Plaintiffs

difficulty is that they state the conclusion (qualified privilege) without demonstrating that the Court of Appeal decision in Mohd Basha Baskaran B Abdullah & Ors v Lim Chin Sun [2015] MLJU 2215 was deciding the same legal question in the same factual setting now before me.

In Chan Tse Yuen, the High Court struck out the defamation claim on the basis that the impugned letter of demand attracted absolute privilege. The court reasoned that the letter was issued in the course of ongoing judicial proceedings. The letter of demand was inextricably connected to the subject matter and relief sought in the pending originating summons, and served as the precursor to the commencement of a fresh suit arising from the same core facts. Therefore, absolute privilege was justified to uphold the administration of justice and prevent a "flank attack" on parties participating in litigation.

The case of Chan Tse Yuen can be distinguished from Mohd Basha Baskaran in that the demand letter in Mohd Basha arose from a club governance dispute. The said letter of demand was not shown to be procedurally necessary to existing court proceedings in the way it was envisaged in Chan Tse Yuen. Thus, the Court of Appeal did not treat the letter as part of the “administration of justice” machinery.

The reasoning in Chan Tse Yuen depends on litigation already on foot or a letter truly “initiating” proceedings as a formal step. The letter of demand in Chan Tse Yuen was practically necessary for the conduct of the litigation or truly ancillary to the relief/issues before the court. More pertinently, the allegations of the letter did not go beyond what is necessary for the dispute. Thus, in Chan Tse Yuen the absolute privilege was justified because otherwise a party could be “flank-attacked” via defamation claims for litigation communications.

If the LOD is not a genuine litigation step but pressure tactics, reputational leverage, or collateral intimidation, then recognising absolute privilege would extend the doctrine beyond the “administration of justice” rationale.

Applying these principles to the present case, the substance of the LOD is directed squarely at the Plaintiffs’ alleged unauthorised use of the Trademarks. The LOD asserts that the Plaintiffs (CC) used D1 and D2’s (CC) registered logo and branding without consent or licence, and that such conduct gives rise to actionable wrongs against the Plaintiffs

(CC). In particular, the LOD pleads—substantially in the same vein as the Main Suit—that: i. the Plaintiffs (CC), operating under the name “CAR KING Malaysia”, used the Defendants’ (CC) registered logo on posters, advertisements, a website and Facebook posts (dated on or around 30.11.2024 and 3.12.2024) without authorisation; ii. the logo is a registered trade mark (registered in 2019 and still subsisting); iii. D1 and D2 (CC) never authorised, endorsed, or affiliated themselves with the Plaintiffs (CC) or the Plaintiffs’ business activities; iv. the unauthorised use constitutes trade mark infringement (including under s.38 of the Trade Marks Act 1976); v. the association created confusion among customers and harmed the Defendants’ (CC) goodwill, by conveying a false impression of endorsement or affiliation; and vi. the misuse allegedly tarnished the Defendants’ (CC) reputation in the real estate industry and was said to carry defamatory implications.

Those assertions are materially the same factual foundation that underpins the causes of action pleaded in the Main Suit. The relief demanded in the LOD likewise mirrors, in substance, the remedies later pursued in the Statement of Claim. The LOD demanded that the Plaintiffs (CC): a) cease and desist from any further use of the Trademarks and any similar branding; b) remove all infringing use across marketing materials, social media platforms and websites; c) publish an unreserved public apology in terms approved by the Defendants (CC), expressly stating (among others) that there is no association or affiliation and that the use was unauthorised and misleading; and d) pay RM10,000,000.00 as general damages for harm to reputation, goodwill and business operations.

When juxtaposed against the pleaded prayers in the Statement of Claim, the overlap is unmistakable. The Statement of Claim seeks, among others, declarations of infringement and non-association, injunctive relief restraining further infringing use and passing off, delivery up/destruction of infringing materials, inquiry/account of profits, orders for publication of an apology, and general damages of RM10,000,000.00—all of which substantially replicate the demands set out in the LOD in the following manner: a. Suatu deklarasi bahawa Defendan-Defendan telah melanggar Cap-Cap Dagangan tersebut tanpa kebenaran dan/atau lesen daripada Plaintif-Plaintif dan/atau P2; b. Suatu deklarasi bahawa syarikat P1 adalah tidak berkait dan tidak mempunyai sebarang kaitan dengan perniagaan dan/atau perkhidmatan dan/atau sifat perniagaan syarikat D1; c. Suatu deklarasi bahawa tirai perbadanan di antara D1 dan D2 adalah disingkap bagi tujuan tuntutan Plaintif-Plaintif dalam Guaman ini; d. Suatu perintah injunksi untuk melarang Defendan-Defendan sama ada oleh diri mereka. pengarah-pengarah, pegawai-pegawai, pengkhidmat-pengkhidmat atau ejen-ejen atau mana-mana daripada mereka secara bersesama dan/atau berasingan daripada membuat atau memberi kuasa kepada yang lain untuk melakukan tindakan-tindakan berikut:- i. Melanggar Cap-Cap Dagangan tersebut dan/atau sebarang tanda dan indikasi lain yang digunakan berhubung dengan perkhidmatan dan perniagaan syarikat P1 termasuk tetapi tidak terhad kepada semua tanda, emblem, dan logo yang dimiliki oleh Plaintif-Plaintif, sama ada ia didaftarkan di Malaysia ataupun tidak; ii. Kelirupaan (passing off) Cap-Cap Dagang tersebut dan/atau sebarang tanda dan indikasi lain yang digunakan berhubung dengan perkhidmatan dan perniagaan syarikat P1 termasuk tetapi tidak terhad kepada semua tanda, emblem, dan logo yang dimiliki oleh Plaintif-Plaintif, sama ada ia didaftarkan di Małaysia ataupun tidak; iii. Secara menyalahi undang-undang mencampuri perdagangan dan perniagaan Plaintif-Plaintif dengan melakukan sebarang tindakan yang diperincikan dalam sub-perenggan (i) dan (ii) di atas; iv. Menerbitkan dan/atau menyebabkan untuk diterbitkan sebarang terbitan yang menggunapakai Cap-Cap Dagangan tersebut dan/atau sebarang tanda dan indikasi lain yang digunakan berhubung dengan perkhidmatan dan perniagaan syarikat P1 termasuk tetapi tidak terhad kepada semua tanda, emblem, dan logo yang dimiliki oleh Plaintif-Plaintif, sama ada ia didaftarkan di Malaysia ataupun tidak; e. Suatu perintah untuk menghantar serah kepada Peguamcara Plaintif-Plaintif dan/atau untuk memusnahkan sebarang terbitan dan/atau bahan promosi Defendan-Defendan yang mengandungi Cap-Cap Dagangan tersebut dan/atau sebarang tanda dan indikasi lain yang digunakan berhubung dengan perkhidmatan dan perniagaan syarikat P1 termasuk tetapi tidak terhad kepada semua tanda, emblem, dan logo yang dimiliki oleh Plaintif-Plaintif, sama ada ia didaftarkan di Malaysia ataupun tidak (termasuk tetapi tidak terhad kepada Libel Pertama, Libel Ke-2, dan Libel Ke-3 tersebut). Defendan-Defendan adalah wajib untuk melaksanakan perintah ini dalam tempoh tujuh (7) hari dari tarikh Perintah Mahkamah dan Defendan-Defendan perlu memfailkan suatu Afidavit Pematuhan dalam masa empat belas (14) hari dari tarikh Perintah Mahkamah; f. Suatu perintah bagi siasatan (inquiry) tentang keuntungan yang diperolehi oleh Defendan-Defendan berikutan salahlaku Defendan-Defendan (seperti yang diplidkan dalam Guaman ini) dan seterusnya pembayaran kepada Plaintif-Plaintif semua jumlah yang didapati kena dibayar selepas siasatan dan/atau pengambilan akaun tersebut disempumakan; g. Suatu lnjunksi terhadap Defendan-Defendan untuk menerbitkan dan/atau menyebabkan penerbitan permohonan maaf tidak bersyarat (dengan terma-terma yang dipersetujui dan diluluskan terlebih dahulu oleh Plaintif-Plaintif) dalam Bahasa Inggeris dan Bahasa Cina yang perlu diterbitkan atas talian secara terbuka dalam Akaun Facebook tersebut selama tempoh dua (2) minggu secara berturut-turut dan dalam akhbar tempatan harian Bahasa lnggeri sebanyak satu kali terbitan masing-masing dalam tempoh tujuh (7) hari dari tarikh Perintah Mahkamah; h. Gantirugi am sebanyak RM 10,000,000.00 bagi kesemua kausa-kausa tindakan yang diplidkan dalam Guaman ini berikutan kehilangan pemiagaan, reputasi, dan kredit ataupun sepertimana yang ditaksirkan oleh Mahkamah Yang Mulia ini; i. Gantirugi teruk dan/atau teladan untuk ditaksirkan oleh Mahkamah Yang Mulia ini; j. Kos atas dasar peguam dan anak guam; k. Kos tindakan ini; dan

In these circumstances, the LOD is properly characterised as a precursor to the proceedings that were ultimately commenced by the Defendants (CC), and as correspondence closely connected to the very dispute that forms the subject matter of the Main Suit. On these facts, absolute privilege was justified as necessary to the administration of justice and to prevent a “flank attack” on participants in litigation. The LOD in this particular case was practically necessary for the conduct of the litigation or truly ancillary to the relief/issues before the court. It did not, on its face, range beyond what was necessary to articulate the Defendants’ (CC) complaint and the relief sought.

I find that the Plaintiffs’ (CC) insistence in filing the Counterclaim notwithstanding the clear provisions of the law was a mere attempt at committing a flank attack against D1 and D2 (CC), which in turns form an abuse of the court process.

Additionally, the whole Counterclaim filed indiscriminately against the Defendants (CC) notwithstanding the lack of involvement in the said LOD (for D3 and D4 (CC)) as well as without any proper merit clearly shows that the filing of the same was frivolous, scandalous, and vexatious.

It follows that the Counterclaim, insofar as it is founded on the LOD, is legally unsustainable and must be struck out. ISSUE (b)- Publication to 3rd Party

Learned counsel for the Defendants (CC) submitted that P1 (CC) and P2 (CC) have failed to plead and establish the essential element of publication to a third party.

In this regard, learned counsel argued that: a. the WhatsApp transmission to the mobile number +6017-6070001 has not been shown to be publication to a third party because P1

and P2 (CC) have not identified who controls that number, nor demonstrated that the recipient is independent and not affiliated with them; b. the allegation that the LOD was read by “Vella” is said to be devoid of meaningful particulars, as there are no full name, identification, employment status, date, or circumstances pleaded; and c. even if “Vella” was a former employee, it is the Defendants (CC) position that receipt and opening of correspondence at a business address may fall within the scope of authorised agency or workplace handling, and may therefore not constitute publication in law.

Further thereto, it is also the Defendants (CC) position that the words in the LOD are incapable of bearing the defamatory meanings pleaded by P1 (CC) and P2 (CC). The Defendants (CC) maintained that: a. the LOD contains factual assertions and legal demands consistent with the enforcement of intellectual property rights; b. the language is typical of solicitor’s correspondence and does not impute criminality, dishonesty, or moral turpitude; c. allegations of trademark infringement are, in substance, allegations of legal breach rather than attacks on personal character; and d. the pleaded innuendo meanings are strained, excessive, and unsupported by the words actually used.

Notwithstanding my earlier findings on privilege, I accept the Defendants’ (CC) submission that the Counterclaim in defamation discloses no reasonable cause of action because the essential element of publication to a third party is neither properly pleaded nor made good on the material relied upon. The law is settled that a plaintiff who mounts an action in defamation must establish the following: (i) defamatory meaning, (ii) reference to the plaintiff, and (iii) publication to at least one third person.

As the Federal Court explained in Raub Australian Gold Mining Sdn Bhd (in Creditors’ Voluntary Liquidation) v Hueh Shieh Lee [2019] 3 MLJ 720, publication is a core ingredient of the tort; without it, the claim collapses at the threshold.

The same point is illustrated by Chua Chin Soon v Wong Yew Choong [2025] MLJU 120, where a defamation counterclaim premised on alleged dissemination of a letter of demand failed because the party alleging defamation could not prove who published the document to third parties—underscoring that the evidential and pleading burden rests squarely on the party asserting publication.

On the facts advanced here, the Defendants’ (CC) case is that the LOD was served directly upon the Plaintiffs (CC) through conventional modes—registered post to the Plaintiffs (CC) identified addresses and WhatsApp to a number which the Plaintiffs (CC) themselves had publicly held out as theirs.

The publication narrative advanced by the Plaintiffs (CC), however, is legally unsustainable. Their assertion that the WhatsApp transmission constituted publication to a "third party," predicated on the claim that the recipient number belonged to a personal assistant, lacks evidentiary support and is directly contradicted by the Defendants' (CC) contention that P1 (CC) represented the number as its own point of contact.

The further allegation that the LOD was "published" by virtue of being opened and read by "Vella" and "Erin" is similarly unpersuasive. Where correspondence is received at a company's designated address and processed by staff in the ordinary course of their duties, such handling does not, without additional factors, constitute publication to an external third party; rather, it represents the company acting through its duly authorized officers and employees.

A corporation has no eyes or hands of its own; the reading of its mail by employees tasked with that function is the very mechanism by which the company receives and understands communications addressed to it. To treat such internal handling as actionable publication would convert routine corporate administration into a defamation trigger, which the law does not countenance.

The Plaintiffs’ (CC) attempt to anchor publication on an alleged service by email is likewise unconvincing on its own terms. If the email was never successfully sent or received, it cannot constitute publication. Even if it was, the email address relied upon was, on the Defendants’

case, an address publicly advertised by the Plaintiffs (CC) themselves as their own corporate channel—again reducing the matter to direct communication rather than dissemination to an outside third party.

The Plaintiffs' (CC) unsubstantiated assertion concerning the "dissemination" of the LOD to the Defendants' (CC) employees is insufficient to establish publication due to its failure to satisfy the requisite standard of particularity. To adequately plead publication in a defamation claim, a claimant must, at a minimum, identify the recipients, or a clearly definable class thereof, in conjunction with the circumstances of dissemination. A vague reference to unnamed "employees" lacks the specificity necessary to sustain a defamation claim and remains, at best, a speculative contention. This principle is elucidated by the Supreme Court in S Pakianathan v Jenni Ibrahim [1988] 1 CLJ Rep 233, which stipulates that particulars of publication must be pleaded with sufficient clarity, including specification of the person or persons, or identifiable group or groups, to whom publication is alleged to have occurred.

For these reasons, quite apart from privilege, the Counterclaim is liable to be struck out as disclosing no reasonable cause of action. ISSUE (c)- Malice Properly Pleaded

As the Plaintiffs (CC) have asserted that the LOD is governed solely by qualified privilege, learned counsel submitted that a demonstration of malice would defeat that privilege, thereby establishing a triable issue. Learned counsel further contended that the aforementioned LOD was issued mala fide. To substantiate this claim, learned counsel for the Plaintiffs (CC) presented the following features as indicia of malice: (a) the purportedly excessive quantum of the claim, amounting to RM10,000,000.00; (b) the imposition of a peremptory 48-hour deadline for a public apology; (c) the allegedly inflammatory and exaggerated language employed; and (d) an asserted intention to inflict harm, rather than resolve a genuine dispute.

Learned counsel maintained that malice is inherently fact-sensitive and turns on state of mind; accordingly, it is the Plaintiffs (CC) submission that this is not suitable for summary disposal and ought to be tested at trial through evidence and cross-examination.

In rebutting this contention, learned counsel for the Defendants (CC) submitted that the Counterclaim is defective. Learned counsel argued that the allegations of malice or “bad faith” is unsupported by the particulars required under Order 18 rule 12(1)(b) of the ROC 2012. Learned counsel added that the pleaded case on publication is similarly lacking because it fails to state with clarity how, when, where, and to whom publication occurred.

In considering this point, even assuming I am incorrect in holding that the LOD is protected by absolute privilege, when it is only befitting of qualified privilege, I find that malice has not been established here; hence, it does not defeat the qualified privilege. In this regard, I agree with the submissions advanced by learned counsel for the Defendants

that allegations of malice must be pleaded with particularity. A bare assertion is insufficient and renders the pleading defective.

If malice is to defeat privilege, the pleading must disclose a concrete and particularized case: the dominant improper motive, the pleaded facts supporting it, and the causal connection between the alleged malice and the publication complained of. I agree with the submissions advanced by learned counsel for the Defendants (CC) that a bare statement on malice, unaccompanied by particulars specifically explaining the alleged malice, is insufficient and renders the pleading defective. Additionally, the law is trite that any generalized or formulaic statement on the allegation of malice is insufficient and unacceptable. This position of the law has been duly encapsulated and explained by the Court of Appeal in Dr Syed Azman bin Syed Ahmad Nawawi & Ors v Dato' Seri Hj Ahmad bin Said [2015] 5 MLJ 141.

In sum, I find that the Plaintiffs’ (CC) submission on malice is misconceived.

Accordingly, I find that the Counterclaim discloses no reasonable cause of action in defamation; that it is, in material respects, frivolous, vexatious and scandalous; and that it constitutes an abuse of the process of the Court under O.18 r. 19(1)(a), (b), and/or (d) of the ROC

2012.

For these reasons, Enclosure 24 is allowed with costs of RM 10,000. The Counterclaim is struck out in its entirety as against all five Defendants (CC), namely D1–D5 (CC). Dated this 19th day of January 2026. -sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff : Ms. Hanis Hazidi (Messrs. Chee Sun & Associates) For the Defendant : Mr. Sng Eu Kim (Messrs. Sulaiman & Taye)