Wan Mohd Faisal Bin Wan Yusoff (No. K/P: 781120-03-5051) v Nuruljannah Binti Mohd Amin (No. K/P: 910827-14-5666) (BA-23NCvC-37-08/2022)

WAN MOHD FAISAL BIN WAN YUSOFF (No. K/P: 781120-03-5051)

NUR AFIFA BINTI ABDUL AZIZ (No. K/P: 880625-02-5530)

DAMAI BERSIH SDN. BHD. (No. Syarikat: 899106-T) …PLAINTIF-PLAINTIF DAN NURULJANNAH BINTI MOHD AMIN (NO. K/P: 910827-14-5666) …DEFENDAN JUDGMENT Introduction [1] The Plaintiffs’ cause of action in the present suit against the Defendant is premised on the Tort of Defamation. 2 [2] The alleged libel is said to have occurred on 11 June 2022, when the Defendant allegedly published statements in her WhatsApp Status claiming that the Plaintiffs' allegations were defamatory. [3] The impugned statements, as pleaded in paragraph 9 of the Plaintiffs’ Statement of Claim, are as follows:

Pada 11.06.2022, Defendan telah menyiarkan status ‘Whatsapp’ di laman Whatsapp milik Defendan atas nombor talian 011-10894729 yang dimuatnaik pada 11.06.2022 lebih kurang jam 3.04 petang dengan menyatakan secara jelas sambil memetik nama penuh Plaintif Pertama, Plaintif Kedua dan Plaintif Ketiga seperti berikut:- a) “Kawe ja x saing nge dato dato mugo sek dio tu hudoh belako perangai-wan mohd faisal-“ b) “orang yang murahan dan hina mcam tu memang tak sesuai pun masuk dalam kamus hidup keluarga aku.. Bawa lari pekerja pembinaan nak gagalkan projek pembinaan NI LAH DIO WAN MOHD FAISAL & NUR AFIFA BINTI ABDUL AZIZ” c) Memuatnaik gambar Plaintif Kedua sambil menujukan anakpanah terhadap Plaintif Kedua dan menyatakan “Ni lah perempuan murahan dan hina tu” 3 d) “DBSB stands for Damai Bersih Sdn Bhd tapi sekarang for me dah jadi Damai Kotor Sdn Bhd… Lama dah rupanya DBSB ni buat kerja kotor …” e) Memuatnaik gambar keluarga Plaintif Pertama dan Kedua sambil membuat kenyataan iaitu “LV target market is for poor people who wants to look rich” f) “Sian Mikayla dpt mummy daddy perangai mcm sial mcm ni… baik mati awal lah Mikayla dari membesar mkn harta haram mcm ni” g) “Sebelum gi Scotland: BMAX pakat MMG, Balik dari Scotland DBSB pakat MMG”; The Relevant Issues [4] The Pertinent Issues for consideration by this Court are:

Whether the Defendant’s Post on her Whatsapp Status contains words/statements which are defamatory of the

Whether the defences of justification and fair comment have been made out and are available to the Defendant? (Issue 2); and 4

Whether the Defendant is liable for the damages sought by the Plaintiffs as per paragraph [20] of their Statement of Claim (Issue 3). Proceedings at the Trial [5] The trial for this case was scheduled over 3 days, that it, from 29 – 31 July, 2024. [6] On the first day of trial (29 July, 2024), this Court heard an application from the Defendant’s solicitors in Enclosure 27 – a Notice of Application for Withdrawal of Solicitor – pursuant to Order 64 rule 5 of the Rules of Court 2012. [7] This Court allowed the application in Enclosure 27 after hearing the reasons advanced by the Defendant’s solicitors with no order as to costs. [8] Counsel for both parties gave an undertaking to the Court that they will inform the Defendant that she is required to attend the proceedings the next day in order for this Court to make any necessary directions, failing which the trial will proceed with the Plaintiffs calling their witnesses. [9] When trial resumed the next day (on 30 July, 2024), this Court was informed that the Defendant had been informed and that she was at Besut, Terengganu. This Court was then informed by counsel for the Plaintiffs that their witnesses were not present and the Plaintiffs sought an adjournment to the next day. This Court allowed the application sought by the Plaintiffs. 5 [10] On 31 July, 2024, the Defendant was again not present. This Court proceeded with the trial pursuant to Order 35 rule 1(2) of the Rules of Court 2012. [11] The Plaintiff called two witnesses: • Wan Mohd Faial bin Wan Yusoff (PW1); and • Nur Afifa binti Abdul Aziz (PW2). [12] Their witness statements were marked as WSPW1 and WSPW2 respectively and admitted as evidence. [13] After the Examination in Chief of PW1 and PW2, the Plaintiffs closed their case. The Decision of this Court On Issue 1 [14] A Plaintiff in a defamation action must prove three elements, on a balance of probabilities, and these are:

that the words were published;

that the words refer to the Plaintiff; and

that the words are defamatory. 6 [15] Based on the pleadings and evidence, this Court is of the considered view that all these elements are present in this instant case. [16] The Defendant repeatedly denied (in her Defence) that the impugned statements did not refer to the Plaintiffs. This Court is unable to agree with and rejects the Defendant’s submissions on this point. [17] Hence, the answer to the question raised in Issue 1 is in the affirmative. On Issue 2 [18] On the defence of justification, section 8 of the Defamation Act 1957 provides as follows:

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. [19] In Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 8 CLJ 477; [2015] 6 AMR 66; [2015] 6 MLJ 187; [2015] 6 MLRA 63, the Federal Court held that a defendant would have sufficiently proven the defence of justification “if he is able to prove the truth or the substantial truth of his own meanings of the impugned words”. 7 [20] Upon an examination of the provision in section 8 of the Defamation Act 1957, it is clear that while “a defence of justification shall not fail by reason only that the truth of every charge is not proved”, this is subject to the rider that “the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges”. [21] This Court is of the considered view that all the impugned statements in the Whatsapp Status posting were not proven to be true and these had the effect of materially injuring the Plaintiff’s reputation having regard to the truth of, not the remaining, but to all the charges. [22] The defence of fair comment is also available to a defendant in an action for libel or slander. Section 9 of the Defamation Act 1957 states the defence of fair comment in the following terms: Fair comment

In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. [23] This defence was elaborated by the Court of Appeal in Mohd Rafizi bin Ramli v Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor [2019] AMEJ 1413; [2019] 6 MLJ 587; [2020] 2 MLRA 334. 8 [24] Upon a perusal of the Defence, this Court is of the considered view that the Defendant has failed to comply with the provision in Order 78 rule 3(2) of the Rules of Court 2012 by failing to substantiate the defence and provide particulars that the impugned statements were fair comments “on a matter of public interest”. The said provision stipulates as follows: Obligations to give particulars (O. 78, r. 3)

Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. [25] Based on the authorities of Hj Saari Sungib v MAIS [2016] 5 CLJ 40; [2016] AMEJ 0892; [2016] 2 MLJ 830; [2016] 3 MLRA 382, Noor Asiah Binti Mahmood v Randhir Singh [2000] 5 CLJ 407; [2000] 2 AMR 1475; [2000] 2 MLJ 175; [1999] 4 MLRH 580 and Mohd Najib bin Abdul Razak v Mohd Rafizi Ramli [2018] 4 CLJ 41; [2017] 8 AMR 382; [2018] 1 MLJ 295; [2018] 1 MLRA 341, the Defendant has failed to establish the defence of fair comment. [26] In view of the above findings, the answer to the question raised in Issue 2 is in the negative. 9 On Issue 3 [27] The Plaintiffs cited numerous authorities for the proposition that “in defamation cases, the damages that occurred to the plaintiff are presumed to be true in law and therefore there is no requirement to prove damages as it would naturally follow that such defamatory words would harm the plaintiffs reputation.”: Mabel Sheela Victor Muttiah v Clare Louise Brown [2024] MLRHU 1264. [28] The Plaintiffs also cited the case Yeo Ing King v Melawangi Sdn Bhd [2016] 6 MLRA 672; [2016] 5 MLJ 631 at p 661; [2016] 5 AMR 405 where it was held that: [78] Libel is actionable per se, that is to say, there is no need to prove actual damage for 'the law presumes that some damage will flow in the ordinarv course of things from the mere invasion of his absolute right to reputation': Gatley on Libel and Slander (10th Ed) at p 983. [29] While it is accepted in law that the Plaintiffs must be compensated, the critical or pertinent question is how much would be the quantum of damages for the loss of reputation. [30] In Datuk Seri Utama Dr Rais Yatim v Amizudin Ahmat [2012] 1 MLRH 519; [2012] 2 MLJ 807; [2012] 2 AMR 266, it was held that a particular libel case cannot be equated with other libel cases. Each libel case is unique and has its own particular and peculiar facts. 10 [31] In MGG Pillai v Tan Sri Dato' Vincent Tan Chee Yioun & Other Appeals [1995] 1 MLRA 322; [1995] 2 MLJ 493; [1995] 2 CLJ 912, the Court of Appeal remarked as follows: … each case must be judged on its own particular facts and on its own merits. In the present case a very serious libel has been perpetrated on the plaintiff. The defendants calculated that the prospect of material advantage from publishing the said articles outweighed the prospects of material loss. Therefore, bearing in mind the principles applicable in the assessment of damages and in considering all the various factors, including the following:

the position and standing of the plaintiff;

the gravity and seriousness of the libel;

the mode and extent of the publication;

the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel;

the uncertainty undergone in litigation;

the conduct of the defendants from the time of the libel down to the very moment of the verdict; and

the absence or refusal of any correction, retraction or apology, this court finds that the award must also be sufficient to convince any person of the baselessness of the libel and act as a necessary and sufficient signal to the public at large of the full vindication of the plaintiffs 11 reputation both in Malaysia and internationally. Taking the above into consideration, I am of the view that the damages to be awarded against each defendant must be treated individually. [32] In this case, the Plaintiff sought RM3,000,000 in general damages together with other reliefs, including aggravated and exemplary damages and interests. [33] It is a cardinal principle that a specific sum should not be pleaded or sought as general damages. It is the role of the court, not the claimant, to assess the appropriate amount of general damages in defamation cases. [34] In addition to the cases cited by the Plaintiffs on the amount of general damages that is to be awarded, reference may also be made to this additional key decision. In John v MGN Ltd [1996] 2 All ER 35, Lord Bingham MR remarked at pages 47-48 as follows: Compensatory damages The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel 12 published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as 'he', all this of course applies to women just as much as men. There could never be any precise, arithmetical formula to govern the assessment of general damages in defamation, but if such cases were routinely tried by judges sitting alone there would no doubt emerge a more or less coherent framework of awards which would, while recognising the particular features of particular cases, ensure that broadly comparable cases led to broadly comparable awards. This is what has happened in the field of personal injuries since these ceased to be the subject of trial by jury and became, in practice, the exclusive preserve of judges. There may be even greater factual diversity in defamation than in personal injury cases, but this is something of which the framework would take account. [35] This Court is cognisant of the fact that the posting was for only over a short period of time and there was no evidence that the posting had been published to the public at large and/or been reposted. 13 [36] In view of the above, this Court is of the considered view that the Defendant is not liable for the damages sought by the Plaintiffs as per paragraph [20] of their Statement of Claim. Therefore, the answer to the question raised in Issue 3 is in the negative. [37] Based on the totality of evidence before the Court, this Court awards the Plaintiffs RM30,000 in general damages with interest of 5% per annum from the date of the filing of this Writ until full settlement of the judgment sum. [38] The claims for aggravated and exemplary damages are disallowed. Costs [39] As the Plaintiffs are successful in this action, it follows that they are entitled to costs. [40] The principle that costs follow the event is encapsulated in Order 59, rule 3(2) of the Rules of Court 2012. There is no special reason for this Court to depart from this general rule in this instant case. [41] The Plaintiffs have sought costs on a “solicitor-client basis”. [42] Since damages awarded to the Plaintiff is well within the monetary limit of the subordinate court, this raises the question of whether the Plaintiffs should have initiated the present action in the subordinate court. [43] In MyLove Confinement Centre v Sdn Bhd v Eliza Ng Li Yen [2024] AMEJ 1818; [2024] CLJU 1757; [2024] MLJU 1956; [2024] MLRHU 1450, 14 this Court recognized that if a Plaintiff were to commence a defamation action in the Sessions Court, the plaintiff would limit herself/himself/itself to the amount of damages to RM1,000,000 as per the pecuniary limit in section 65(1)(b) of the Subordinate Courts Act 1948. Having said that, this Court in the said case also remarked that “experienced counsel should be capable of estimating the damages likely to be awarded in a given case”. [44] As the damages awarded in this instance case is not even close to the jurisdictional limit of the Sessions Court, the Plaintiffs are only permitted to recover fixed costs in accordance with the scale of costs for trial in the Subordinate Courts as per the provision in Order 59 rule 23 of the Rules of Court 2012. Dated: 30 October, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Mohd Hisham bin Abdul Samad for the Plaintiffs (Messrs. Bila Salehuddin & Co.) Nor Mohd Syazwan bin Che Hasim for the Defendant (Messrs. Syazwan Hashim & Azeel Eskandar)