Chan San San v LIM Thow Siang (JA-12B-75-11/2025)

This is an appeal by the Appellant (Plaintiff) against the whole of the decision of the SCJ delivered on 29 October 2025, by which her defamation action against the Respondent (Defendant) was dismissed with costs of RM9,000.00.

At the trial below, the Plaintiff sued the Defendant for defamation in respect of two Facebook posts published in September 2022. The posts, in substance, alleged that the Plaintiff, a serving city councillor and politician, was unwilling to assist an underage girl who had been forced into prostitution. The Defendant denied the statements were defamatory and pleaded, in the alternative, the defences of justification and fair comment. The SCJ found the Impugned Statements defamatory of the Plaintiff in their natural and ordinary meaning and by innuendo, but held that the Defendant had proved both defences.

The appeal raises two principal questions –

whether the SCJ was entitled to uphold the defences of justification and fair comment in circumstances where those defences were not particularised in the Defence as required by Order 78 rule 2(3) of the Rules of Court 2012; and

whether the SCJ's findings of fact at paragraphs 40 and 41 of her Grounds of Judgment, on which the defences succeeded, are supported by admissible evidence.

For consistency, the parties in this proceeding will be referred to as they were at the trial court, that is to say, the Appellant as "the Plaintiff" and the Respondent as "the Defendant".

I have considered the Memorandum of Appeal, the Record of Appeal, the submissions of both parties both before me and at the trial court, and the bundles of authorities, and my decision is as follows.

The Plaintiff is an Ahli Majlis (Member) of the Majlis Bandaraya Johor Bahru, a member of the Malaysian Chinese Association ("MCA") and of the MCA Johor State Liaison Committee and was a Barisan Nasional candidate in the Johor State Legislative Assembly election held in March 2022.

On or about 21 September 2022, the Defendant published on his Facebook account, under the username Lim Thow Siang, a post in Mandarin ("the First Statement") which, translated into Bahasa Malaysia at paragraph 32 of the Grounds of Judgment, reads, in material part – "Chan San San, masalah yang kamu terima aduan tapi tidak memberi bantuan. Sekiranya kamu memberi perhatian terhadap masalah ini, hasilnya mungkin adalah berbeza … #Tapi sayang salah pasukan yang diikuti #Kasih sayang hendaklah diwariskan antara satu sama lain".

The First Statement was published together with a press clipping from China Press concerning an underage girl who had been forced into prostitution by her mother to pay off debts. By solicitors' letter dated 23 September 2022, the Plaintiff demanded that the Defendant retract the First Statement and apologise. Instead, on 29 September 2022, the Defendant published a further Facebook post ("the Second Statement"), which included the following words, translated into Bahasa Malaysia – "Terima surat peguam… Seorang ahli majlis yang merupakan peguam menolong seorang calon yang sudah kalah, telah mengeluarkan satu surat peguam kepada saya, minta saya membuat permohonan maaf secara terbuka … #Rupanya kamu kalah pilihanraya adalah sebab saya #Mencari kebenaran daripada fakta #Kalau ada masa sila memberi bantuan kepada golongan yang memerlukan bantuan #Bazir sumber".

The Plaintiff pleaded that the First and Second Statements (together, "the Impugned Statements") referred to her by name ("Chan San San") and as "calon Wanita MCA Johor Jaya yang sudah kalah", and that they bore defamatory meanings in their natural and ordinary sense and by innuendo, including that the Plaintiff failed or refused to attend to public complaints, lacked integrity as a politician and was not worthy of trust or respect. Malice was expressly pleaded at paragraphs 14 and 15 of the Statement of Claim.

By his Defence dated 16 November 2022, the Defendant, whilst denying that the Impugned Statements bore any defamatory meaning, pleaded in the alternative that he relied on the defences of justification and fair comment made in good faith. The formula used by the Defendant at paragraphs 6, 7, 10 and 12 of the Defence was substantially the same in each case, namely – "… Defendan bergantung kepada pembelaan ulasan saksama (fair comment) dan justifikasi yang dibuat dengan niat baik dimana Defendan akan mengemukakan keterangan pada perbicaraan kelak".

The Defendant called three witnesses at the trial –

himself (SD1, Lim Thow Siang);

SD2 (Piong Chee Hour, described as the Defendant's assistant at a public complaints bureau in Pasir Gudang);

SD3 (Cheng May Xia, the underage girl to whom the China Press article related); and

The Plaintiff called herself (SP1, Chan San San). A further witness referred to in the evidence, one Lau Pui Yee, who had been the original source of the information given to the Defendant, was not called by either party.

The SCJ held, at paragraphs 34 to 36 of the Grounds of Judgment, that the Impugned Statements were defamatory of the Plaintiff both in their natural and ordinary meaning and by innuendo. In particular, the SCJ held that a reasonable reader would understand the Impugned Statements to mean that the Plaintiff did not take care of or attend to complaints from the public who came to her, that she had failed to assist members of the public and was unable to deal with their problems and by innuendo that she lacked integrity and, as a politician, was irresponsible towards certain groups.

The SCJ then considered the defences of justification and fair comment. Applying Tun Datuk Patinggi Haji Abdul-Rahman Ya'Kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393 and Dato' Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2018] 3 MLJ 726, the SCJ held, at paragraphs 40 and 41, that –

"Keterangan SD1 disokong oleh keterangan remaja SD3 tersebut. SD1 telah berjumpa SD3 dan SD3 tersebut telah mengatakan bahawa beliau telah berurusan dengan pasukan MCA di bawah kendalian Plaintif namun pasukan Plaintif tidak mengambil berat untuk membantu remaja tersebut" (paragraph 40); and

"Keterangan remaja SD3 tersebut semasa perbicaraan turut mengesahkan penyataan SD1 bahawa remaja tersebut bersama ibunya pergi menemui Plaintif untuk meminta bantuan namun gagal" (paragraph 41).

On that factual basis, the SCJ concluded, at paragraphs 43 and 44, that the matter of which the Defendant had complained had indeed occurred, that the Impugned Statements were true and that the Defendant had in any event made a fair comment on a matter of public interest. The claim was dismissed with costs of RM9,000.00.

The Plaintiff's Additional Memorandum of Appeal sets out four grounds. At the hearing before me, the Plaintiff's written submissions concentrated on two of them, which I shall consider as Ground 1 and Ground 2 respectively – Ground 1 that the SCJ erred in law and in fact in holding that the Defendant had proved the defences of justification and fair comment when he had failed to plead particulars of those defences in his Defence; and Ground 2 that the SCJ erred in accepting the evidence of SD3 that her mother had approached the Plaintiff for help but was rejected, when there was no admissible evidence of the nature of the assistance sought and when the key evidence on which the SCJ relied was hearsay.

Two further grounds, namely (a) the non-calling of Lau Pui Yee and

the fact that the Defendant and the Plaintiff were at the material time members of the same political party, were also advanced. I deal briefly with them at the end of these Grounds. GROUND 1 - PLEADING OF THE DEFENCES UNDER O.78 r.2(3) OF THE RULES OF COURT 2012

Order 78 rule 2(3) of the Rules of Court 2012 provides – "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".

The rule is mandatory. The Court of Appeal has considered its effect in Yeoh Tseow Suan v. Musa Hassan [2026] 3 CLJ 593, a case which, on its pleadings posture, is materially indistinguishable from the present appeal. The defendant there had succeeded after a full trial on the defences of justification and fair comment at first instance. The Court of Appeal allowed the plaintiff's appeal on the ground of inadequate particularisation of those defences holding – “… the defence of justification involves justifying the defamatory statement by proving the truth of the defamatory imputation. Meanwhile, the defence of fair comment involves clear demarcation of the portion of the statement that the tortfeasor "believes" as facts, and the latter portion of the statement that the tortfeasor is merely and fairly expressing his fair opinion”.

And further – “Thus, for justification to succeed, the defendant must prove that all his statement of facts (or defamatory imputations) to be true. To prove as such, the rule of pleading the defence of justification mandatorily requires that the defendant must specifically particularise and plead the facts he states to be true. … The answer is simply that there was no proper pleading by the defendant to plead the defence of justification. There is sage wisdom in the law that the rudimentary rule of pleading is that only facts need to be pleaded and not evidence. … The defendant's entire defence of justification fatally falters at this early technical juncture …”

As to fair comment, the Court of Appeal held – “The clear distinction and demarcation between facts and opinion/comments in pleading the defence of fair comment is so crucial and essential, that failing to do so would be fatal to the defence”.

And – “Thus, the defendant's defence of fair comment had thoroughly failed at two fronts. First, being the front of the mandatory requirement as to pleading. Second, being the front that the defendant's impugned statements were all clear statements of facts and not in any manner whatsoever an expression of "commentary" or "opinion" in reaction to a statement of fact. Since the defendant's defence of fair comment here had already fatally failed due to improper or defective pleadings, the other elements of the defence of fair comment need no longer be discussed as the issue had already become moot”.

Earlier authority is to the same effect. In Datuk Abdul Ghapur Hj Salleh v. Ch'ng Boon Heng, The Chief Editor of New Sabah Times & Ors [2002] 6 CLJ 352, on which the Plaintiff relied at the trial, the High Court held that the requirement to give particulars in support of a plea of justification is a requirement of the Rules and that where particulars are not given, "on this point alone that the plea could not be sustained". The Court of Appeal in Yeoh Tseow Suan in turn adopted the approach of the Singapore Court of Appeal in Aaron & Ors v Cheong Yip Seng & Ors [1996] 1 SLR 623, where it was held that "some of the evidence led or adduced in support of the plea of justification fell wholly outside the pleaded particulars" and that "the issues to be tried under the pleas of justification are limited to the matters referred to in the particulars" [citing Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148, 152].

The Plaintiff at trial also relied on Mirzan Mahathir v. Star Papyrus Sdn Bhd [2000] 5 CLJ 507, in which the High Court reiterated that a defendant who pleads justification must, following Lucas-Box v. News Group Newspapers Ltd [1986] 1 WLR 147,that “make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify” and “a defendant who pleads justification is required to deliver full particulars of the facts and the matters upon which he relies in support of such a plea and the evidence at the trial in support of this plea will be strictly confined to these particulars”. The Defendant's Defence in this action satisfies none of those requirements.

Against that statement of the law, I have carefully examined the Defence filed by the Defendant on 16 November 2022. The paragraphs on which the Defendant relies for his defences are paragraphs 6, 7, 10 and 12. The substance of each is the same i.e. a denial of the Plaintiff's allegations, followed by a formula to the effect that, in the alternative, the Defendant relies on fair comment and justification made in good faith and that he will lead evidence at the trial.

Nowhere in the Defence does the Defendant –

identify which parts of the Impugned Statements he alleges are statements of fact and which he alleges are expressions of opinion;

plead the facts which he contends to be true in support of the plea of justification (that is to say, what, as a matter of fact, the Plaintiff is alleged to have done or failed to do, to whom, when, and in what circumstances); or

plead the factual substratum on which any comment or opinion is said to rest, or the public-interest character of that comment.

The Defence is, in substance, no more than a bare assertion of reliance upon the two defences coupled with a promise to adduce evidence at the trial. There is no separate section of particulars headed "Particulars of Justification" or "Particulars of Fair Comment". The Statement of Claim, by contrast, sets out the Plaintiff's pleaded meanings in detail at paragraphs 12 and 13 including ten discrete natural-meaning defamatory imputations [sub-paragraphs (a) to (j)] and three innuendo meanings and none of which is addressed, imputation-by-imputation, in the Defence. The Defendant has therefore not discharged the mandatory pleading obligation imposed by O.78 r.2(3) ROC 2012.

The Defendant's written submissions before me (Enclosure 6) do not answer the pleading point at all. His written rebuttal (Enclosure 10) does not address it either. There is no suggestion in either that the point was waived by the Plaintiff, nor any submission that particulars were supplied elsewhere, nor any authority proffered on that question. The point was, it is to be noted, expressly raised by the Plaintiff in her written submission at the trial court and reiterated at paragraphs 1.1 to 1.5 of her Reply Submission. The SCJ, with respect, did not address it in her Grounds of Judgment. That was an error. Following Yeoh Tseow Suan, by which I am bound, the defences of justification and fair comment fell to be rejected at the threshold by reason of non-compliance with O.78 r.2(3) ROC 2012.

For completeness, I have considered whether the Defendant's witness statements or the agreed fact bundles might cure the pleading deficiency. They do not. As the Court of Appeal made clear in Yeoh Tseow Suan, "only facts need to be pleaded and not evidence"; a witness statement is not a pleading and cannot retrospectively supply particulars that ought to have appeared in the Defence. Nor does the Plaintiff's failure to apply for further and better particulars, or to strike out the Defence, waive a mandatory pleading requirement; the point was raised in submissions at the trial and the Plaintiff was entitled to have it determined on its merits. On the record before me it has not been.

Ground 1 accordingly succeeds. GROUND 2 - WHETHER THE FINDINGS AT PARAGRAPHS 40 AND 41

Ground 1 is sufficient, by itself, to dispose of this appeal. However, because the Plaintiff also attacked the factual underpinning of the defences and because the parties have addressed me fully on the point, I think it is right to deal with Ground 2 as well. In undertaking that exercise I bear in mind the principles governing appellate interference with findings of fact, namely where the finding below depends on the credibility of witnesses seen and heard by the trial court, an appellate court should be reluctant to interfere; but where the finding depends on inferences drawn from documents and the combined effect of undisputed evidence, an appellate court is in as good a position to evaluate the material as the trial judge and may more readily interfere. [See : China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 2 MLJ 517 and Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1]. In my judgment, the SCJ's findings at paragraphs 40 and 41 of her Grounds of Judgment are findings of the latter kind.

The defamatory sting of the Impugned Statements, as found by the SCJ at paragraphs 34 to 35 of the Grounds of Judgment, being the Plaintiff received complaints from members of the public (including, the Defendant was saying, a complaint bearing on the situation reported in the China Press article concerning SD3) and failed to help, so that she lacked integrity as a politician. It is that sting that the defences of justification and fair comment had to justify. For justification, the Defendant had the burden of proving, on the balance of probabilities, the substantial truth of that imputation. For fair comment, the Defendant had to prove the "basic facts" that those which "go to the pith and substance of the matter" to be true. This was the principle held in London Artists Ltd v Littler [1969] 2 QB 375, which was cited with approval by the Sabah and Sarawak High Court in Christina Liew Chin Jin v. Leksun Injil [2021] CLJU 1157. Christina Liew Chin Jin is in fact in the Defendant's own Bundle of Authorities filed on this appeal. The Defendant has therefore himself put before me the very authority that establishes that the “basic facts” going to the pith and substance of the comment must be proved to be true. As the analysis below shows, those basic facts are not proved on the record before this court

The critical evidential question is therefore whether there was admissible evidence before the SCJ that the Plaintiff had received a complaint, from SD3 or from her mother or from any other person, about the matters described in the China Press clipping, namely, the alleged forcing of the underage SD3 into prostitution by her mother and had failed or refused to respond to it. The SCJ's affirmative findings on that question appear at paragraphs 40 and 41 of the Grounds of Judgment, reproduced at paragraph 11 above.

Having read the Notes of Evidence and in particular the evidence of SD3 and SP1, I regret to have to say that those findings are not supported by the evidence.

First, as to SD3's evidence. In her witness statement, SD3 said that she and her mother had met the Plaintiff in February 2022 to seek assistance. Under cross-examination, SD3's attention was directed to those answers. She accepted that the assistance sought at that meeting was bantuan makanan, that is, food aid and not any complaint or request for help concerning the rape of SD3 or her mother's conduct. She was then asked, twice, whether she and her mother had ever complained to the Plaintiff about what was happening to SD3 at home. She answered "Betul". That is, she confirmed that no such complaint had been made. To make the position clear, the SCJ intervened and SD3 again confirmed that what had happened to her at home had never been communicated to the Plaintiff and that she had only spoken of it to the Defendant and to Mr Piong. In learned counsel's closing formulation, "Jadi hal ehwal apa yang berlaku kepada awak di rumah tidak pernah diadukan kepada Chan San San betul tak?", SD3 answered "Betul".

Secondly, it was only in re-examination that the evidence underlying paragraph 41 of the Grounds of Judgment emerged. After some difficulty with the interpretation, SD3 ultimately said that her mother had spoken to the Plaintiff. The SCJ then put to SD3, the question : "So kamu nak kata, mak ada cakap dengan Chan San San problem saya, saya sendiri tak cakap. Itu jawapan kamu, ya?" SD3 answered "Ya". With respect, that evidence cannot carry the weight the SCJ placed on it. SD3's knowledge of what her mother said to the Plaintiff is, at best, knowledge derived from what her mother had told her. So far as it was tendered to prove the truth of the matter asserted, namely, that the mother had indeed communicated to the Plaintiff a complaint about SD3's situation and that the Plaintiff had failed to respond. In my judgment, it is hearsay within the meaning of the Evidence Act

The Court of Appeal in Yeoh Tseow Suan itself, made clear that reliance on what another person has said is not a substitute for proof of the underlying fact. The Court there held that “reliance on another person's statement or opinion at best is hearsay and is just a prove that the "other" person had perpetuated the defamatory statement”. The position is the same whether the reliance appears in the pleading or in the evidence : the defendant remains required to prove the truth of the imputation he has published, not merely the fact that another person said it to him.

Thirdly, and more importantly, there is on the Notes of Evidence no direct evidence of what, if anything, the mother said to the Plaintiff, when she said it, what assistance, if any, she asked for and what the Plaintiff did or did not do in response. SD3's direct evidence was confined to the February 2022 meeting and that meeting, on her own account was about food aid. Whatever the scope of the mother's own communications with the Plaintiff may have been, they are on this record untested and unproved.

Fourthly, the evidence of SP1, far from undermining the Plaintiff's case, if anything strengthens it. SP1 testified that during her election campaign in March 2022 she did receive information of a girl being raped and that she notified the Biro Aduan MCA Pasir Gudang, whose officers (including the Defendant himself and SD2) took action and sent the girl to a welfare home in Segamat. On her own evidence, accepted by the Defendant's own witnesses, the Plaintiff did not ignore the complaint. Rather, she referred it to the appropriate officers within her party, who were the very officers who subsequently produced the Impugned Statements. The SCJ, with respect, did not engage with this evidence at all in assessing the truth of the defamatory sting.

Fifthly, the evidence of SD2 (Piong Chee Hour) confirms that the Defendant's bureau had, in March 2022, assisted SD3 after she was raped, sending her to a welfare home in Segamat and again in September 2022 after her mother had taken her out. That evidence corroborates the Defendant's account that he and his bureau helped the girl. It does not, however, go to the critical question : whether the Plaintiff had received and ignored a complaint about the same subject-matter.

I should add that the SCJ's own finding at paragraph 39 of her Grounds of Judgment, that “SD1 dan pasukannya telah menerima aduan dari seorang yang bernama Lai Pui Yee”, is itself founded on SD1's account of what Lai Pui Yee told him. Lai Pui Yee was not called as a witness and no provision of section 32 of the Evidence Act 1950 was invoked to render her out-of-court statement admissible. SD1's evidence of what Lai Pui Yee said is, therefore, hearsay if tendered to prove the truth of the matter Lai Pui Yee asserted. To the extent the SCJ used paragraph 39 as a building block for paragraphs 40 to 43, that block is unsound for the reasons given above and in Yeoh Tseow Suan.

Compounding the difficulty, in cross-examination, SD2 expressly conceded two matters of considerable importance. First, that the China Press article does not mention the Plaintiff by name. Secondly, that the article does not attribute to SD3 (or to anyone else) any complaint that the Plaintiff had failed to assist her. The SCJ relied on the China Press article as part of the factual matrix said to justify the Impugned Statements. But the article on its own face does not say what the SCJ took from it. The Defendant's juxtaposition of the article with the Plaintiff's name on his Facebook page is the very act of imputation complained of and the article itself supplies no factual support for the imputation.

The consequence is that the substratum required to sustain justification, where proof of the substantial truth of the defamatory sting, is absent. As the Court of Appeal held in Abdul Talib v Seenivasagam & Anor [1965] 1 MLJ 142, "to establish a plea of justification, the defence must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only". The defamatory imputation here, that the Plaintiff had received and ignored a particular kind of complaint, is not proved on admissible evidence.

For fair comment, section 9 of the Defamation Act 1957 does not assist the Defendant. The section permits a defence of fair comment to survive where not every allegation of fact is proved, provided the opinion is fair having regard to such facts as are proved. But the "basic facts", the pith and substance of the matter, must still be proved. [See : London Artists Ltd v Littler]. Here, the basic fact underlying the comment (that the Plaintiff had a duty to act on a complaint about SD3's situation, that such a complaint was made to her and that she did not act) is not proved on admissible evidence. Further, under Raja Syahrir Abu Bakar & Anor v. Manjeet Singh Dhillon & Other Appeals [2019] 4 CLJ 301, the elements of fair comment are to be read conjunctively and failure of any one is fatal.

Ground 2 therefore also succeeds.

The Plaintiff's complaints that the SCJ failed to take account of the non-calling of Lau Pui Yee and the fact that the Defendant and the Plaintiff were members of the same political party at the material time, do not, in my view, add materially to the conclusions I have already reached on liability. They do, however, bear on the questions of malice and of aggravated damages, to which I turn below.

For the reasons set out above, I am satisfied that the SCJ erred, first, in upholding the defences of justification and fair comment despite the Defendant's non-compliance with O.78 r.2(3) of the Rules of Court 2012 and secondly, in making findings at paragraphs 40 and 41 of the Grounds of Judgment which are not supported by admissible evidence. Given the SCJ's own findings at paragraphs 34 to 36 that the Impugned Statements are defamatory of the Plaintiff (findings which have not been challenged by way of cross-appeal), it follows that liability is established. Judgment must be entered for the Plaintiff.

I come then to damages. Under Order 55 rule 2 of the Rules of Court 2012, an appeal to the High Court from a Subordinate Court is by way of re-hearing. The discretion whether to assess damages on the appeal or to remit for assessment is therefore mine. I am satisfied that the appropriate course is to assess damages myself. The parties both addressed the question of damages in their written submissions at the trial. The Defendant, in particular, had a full opportunity to mitigate and did not take it. The Plaintiff has expressly invited this Court to assess damages on appeal. No further findings of fact are required and the evidence necessary for a proper assessment is already on the record. Remittal would produce only delay and further costs to no useful purpose.

The Plaintiff prays for damages of RM150,000.00 inclusive of aggravated and exemplary damages (paragraph 6.2 of Enclosure 8, reiterating paragraph 8.7 of her trial submission at page 115 of the Record of Appeal), together with the injunctive and apology relief sought at prayers (c), (d) and (e) of the Statement of Claim, interest and costs.

The Defendant has put in no submission on quantum. His reply submission at the trial (at paragraph 10 of his Hujahan Balas dated 5 September 2025, page 133 of the Record of Appeal) engages with the Plaintiff's damages submission in a single sentence, to the effect that damages only arise if liability is established. That is of course true, but it leaves the Defendant without any mitigation, any counter- authority and any competing figure. His submissions on this appeal are the same. The Plaintiff's submission on quantum therefore stands unanswered.

The principles which guide the assessment of damages in a defamation action are well settled. Libel is actionable per se, so that no proof of actual damage is required. [see : MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun & Other Appeals [1995] 1 MLRA 322). In assessing the amount, I am guided by the factors identified by the Federal Court in Mahadevi Nadchatiram v. Thiruchelvasegaram Manickavasegar [2001] 3 CLJ 65, viz –

the position and standing of the plaintiff;

(ii) the extent of the publication;

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

(iv) the uncertainty undergone in the litigation; and

the conduct of the defendant from the time of the libel down to the very moment of the verdict. In Chew Hock Jin v. Lim Jenn Shiah & Other Appeals [2021] 4 MLRA 499 and Datuk Seri Utama Dr Rais Yatim v. Amizudin Ahmat [2012] 1 MLRH 519, the courts have added as further factors–

(vi) the absence or refusal of correction, retraction or apology; and

(vii) the nature of the libel - factors which bear directly on aggravated damages.

Applying those factors to the present case –

Position and standing of the Plaintiff. The Plaintiff is a sitting Ahli Majlis (Member) of the Majlis Bandaraya Johor Bahru, a member of the MCA Johor State Liaison Committee and was a Barisan Nasional candidate in the Johor state election of March

She is a person of public office and public reputation, whose standing in her community and within her political party is central to her livelihood and public service.

Extent of publication. The Impugned Statements were posted on the Defendant's Facebook account, which on the Defendant's own pleaded admission and as found by the SCJ at paragraphs 24 and 27 of the Grounds of Judgment, had unrestricted public access. The Plaintiff, said that she received numerous calls and enquiries from members of the public and from MCA colleagues following the posts. Further, third parties (one Chua TK on 30 September 2022 and one Sunny Low on 1 October 2022) posted comments on the Defendant's Facebook page amplifying the defamatory theme and describing the Plaintiff, in terms, as a bully and a blackmailer. Those comments were pleaded at paragraph 7 of the Statement of Claim as part of the Second Defamatory Statement and their existence and content were not disputed. The extent of publication is accordingly significant.

Mental distress and anguish. The Impugned Statements were published in the politically charged aftermath of the Plaintiff's electoral defeat in March 2022. The defamatory sting - that the Plaintiff, whose vocation is public service, turned a deaf ear to a complaint concerning the sexual exploitation of an underage girl, is a particularly wounding allegation to direct at a politician and to an Ahli Majlis whose functions include receiving and attending to complaints from members of the public. I am satisfied, on the balance of probabilities, that the Plaintiff suffered real hurt, distress and anxiety as a result.

Uncertainty and duration of the litigation. The Plaintiff filed her Writ on 11 October 2022. Trial took place on 21 May 2025 and 7 July 2025. Judgment was delivered on 29 October 2025. This appeal has occupied a further six months. The Plaintiff has lived under the shadow of the Impugned Statements for more than three and a half years.

Conduct of the Defendant. This is, in my view, the most important factor in the present case. The Defendant's conduct is aggravating in three respects, each independent of the others. First, he published the Second Statement on 29 September 2022 after receipt of the Plaintiff's solicitors' letter of 23 September 2022 demanding retraction. The Second Statement is not only a refusal to retract but a mocking re-publication, including in particular the taunt "Rupanya kamu kalah pilihanraya adalah sebab saya". Secondly, at no stage between the Second Statement and the hearing of this appeal has the Defendant apologised, retracted, or offered any correction. Thirdly, and most seriously, the evidence before the SCJ establishes that at the time of the First Statement on 21 September 2022, the Defendant was himself the officer who had been looking after SD3. On SD2's evidence at page 61 of the Notes of Evidence and on the Plaintiff's submission at page 131 of the Record of Appeal (which was not disputed), SD3 had been placed at Pusat Jagaan Exodus in Segamat from 11 March 2022 to 21 September 2022 under arrangements made by the Defendant's own bureau. The Defendant therefore knew, when he published the First Statement, that the imputation against the Plaintiff was false or at the lowest, that it was utterly baseless as against the Plaintiff, because his own organisation had been handling SD3's case for six months. In my view that is direct evidence of actual malice, notwithstanding the Defendant's pleaded denial.

Absence of retraction or apology. As already noted, no retraction or apology has been made, and none was offered in the Defence, the witness statements, the trial submissions, or the submissions on this appeal. Under Rais Yatim that is itself a matter going to aggravation.

Nature of the libel. The libel was directed at the Plaintiff in her capacity as a public officer and politician. It imputed a failure of moral character and of public duty of a particularly egregious kind, which is indifference to the sexual exploitation of a minor. The Impugned Statements were published in a politically damaging season (following an election loss) and to a large Facebook audience. This is a serious libel.

I have also had regard to the fact that the Defendant and the Plaintiff were, at the material time, members of the same political party (MCA), and that the Defendant was the head of the Biro Aduan MCA Pasir Gudang. He was, accordingly, a political colleague weaponising internal party knowledge against the Plaintiff in the aftermath of her electoral defeat. In my judgment this is further evidence of malice and an additional aggravating factor.

Balancing those factors, and bearing in mind that awards of damages in defamation should be proportionate and should not operate as a windfall to the plaintiff, I assess –

General damages in the sum of RM80,000.00;

Aggravated damages in the sum of RM40,000.00; and

No exemplary damages (the aggravating features are sufficiently reflected in the aggravated damages award and the high threshold for exemplary damages in Malaysian defamation jurisprudence is not, in my view, met here).

The total sum awarded is accordingly RM120,000.00.

As to the further reliefs sought in prayers (c), (d) and (e) of the Statement of Claim, I order –

An injunction restraining the Defendant, whether by himself, his servants, agents or otherwise, from further publishing or causing to be published the Impugned Statements or any statements to similar effect concerning the Plaintiff;

An order that the Defendant forthwith and in any event within 14 days of the date of this judgment, remove or cause to be removed the First Statement and the Second Statement from his Facebook account and from any other online platform on which they have been republished with his knowledge or at his instance;

An order that the Defendant publish an apology to the Plaintiff, in terms to be approved by the Plaintiff's solicitors, in one national Chinese-language newspaper of the Plaintiff's choice and prominently on the Defendant's Facebook account, within 30 days of the date of this judgment. I consider that publication in one newspaper, rather than two as prayed, is adequate to vindicate the Plaintiff's reputation and is proportionate.

Interest on the sum of RM120,000.00 at the rate of 5% per annum from the date of this judgment until the date of full realisation.

I accordingly make the following orders –

the appeal is allowed;

the order of the Sessions Court dated 29 October 2025 dismissing the Plaintiff's claim with costs of RM9,000.00 is set aside;

judgment is entered for the Plaintiff against the Defendant for damages of RM120,000.00, comprising RM80,000.00 in general damages and RM40,000.00 in aggravated damages;

the injunction, removal order and apology order set out at paragraph 50 above are granted;

interest at 5% per annum shall be paid on the sum of RM120,000.00 from the date of this judgment until the date of full realisation;

the Defendant shall pay the Plaintiff's costs of the trial in the Sessions Court, which I assess in the sum of RM20,000.00; and

the Defendant shall pay the Plaintiff's costs of this appeal, fixed at the sum of RM10,000.00, subject to the allocator. Dated : 21 April 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellant : : Ang Boon Heng Messrs. Ang & Co. Solicitor for the Respondent : : Ng Kai Choy Messrs. Tan Choon Hong & Associates