Chin Wing Wah v Ang Kok Hooi (WA-23NCVC-44-08/2016)

10.2.2016) until full settlement; Page 2 of 23 e) Injunction Order against the Defendant and/or Defendant’s agents from republished the said alleged defamatory statement or any statements having similar definition to the alleged defamatory statements; f) Costs of the Action; and g) Any other relief deemed fit and fair by the Court. FACTS OF THE CASE [2] The Plaintiff was one of the committee members of the Management Corporation called D’aman Crimson Management Corporation (“DCMC”) from 28.09.2013 till 12.09.2015. Rose Vista Management Sdn. Bhd. (“Rose Vista”) is a managing agent company which manages the D’aman Crimson Condominium (“the Condominium”). [3] The Defendant is the owner and a resident of one of the residential unit in the Condominium. At the material time the Defendant was the Chairman to the DCMC. [4] The Plaintiff in his Statement of Claim (“SOC”) pleads the following :- i. As a Chairman to DCMC, the Defendant did not object to the appointment of Rose Vista to manage the Condominium; ii. On 12.9.2015, the Condominium held its third Annual General Meeting (“AGM”). During the third AGM, the Defendant Page 3 of 23 informed the Chairman that he has some crucial information to share with the audience. Then, the Defendant distributed a chart (“the Chart”) to the participants of the AGM, showing the relationship of the Plaintiff with Rose Vista; iii. The Plaintiff alleges the words in the Chart and the Minutes of the meeting (AGM) (Plaintiff refers to Lampiran A and B attached to SOC) are defamatory in nature against the Plaintiff; iv. The Defendant told everybody attending the AGM that the Plaintiff is incapable of managing the Condominium because of the conflict of interest between DCMC and Rose Vista; v. The Defendant had urged the Commissioner of Building to declare the management and the appointment of Rose Vista as invalid; vi. The declaration was defamatory against the Plaintiff; vii. As a result of the AGM, the relationship between the Plaintiff and DCMC is beyond repair as: - a) DCMC instructed Rose Vista to hand over all cheque books and bank accounts to DCMC; b) All online transaction conducted by Rose Vista in relation to DCMC accounts to be stopped; Page 4 of 23 c) DCMC had forbidden appointment of any companies related to the Plaintiff, the Plaintiff’s wife, the Plaintiff’s sister in law and Sukumaran s/o KS Nair to be appointed as managers for the Condominium; and d) DCMC had sent a letter dated 5.10.2015 exposing the Plaintiff’s IC number, personal details and contact number alleging the Plaintiff’s workers had entered DCMC’s premise to take out DCMC’s files in server room containing personal details of the owners in the Condominium. [5] The Defendant denies the Plaintiff’s claim and his Statement of Defence (“SOD”) pleads the following: - i. There was no defamatory statement made against the Plaintiff at all material times; ii. As a unit owner in the Condominium, the Defendant has the right to get the opinion from the Commissioner of Building under Section 87 of the Strata and Management Act 2013 (“the Act”) when the issue of conflict of interest was raised; iii. The Plaintiff failed to specifically states which of the Defendant’s statements alleged to be defamatory. The Page 5 of 23 allegations are merely assumptive, unsupported by any facts and evidence; iv. The Defendant had never any influence or role in DCMC’s decision as DCMC is a management corporation, a body with its own rights and powers to make its decision independently; v. The Defendant denies that the Plaintiff suffered any losses or damage; vi. The Chart is not defamatory in nature; vii. Alternatively, the Defendant relies on the defence of Justification and Fair Comment as the statements made were based on true facts; viii. The declaration by the Commissioner of Building is not defamatory in natural and ordinary meaning as it was made to protect the public interest which is line with Section 87 of the Act; ix. There was no publication of any defamatory documents; and x. The defamatory statements never referred to the Plaintiff. Page 6 of 23 ISSUES TO BE TRIED [6] The issues to be tried by the Court are as follows: - i. Whether the words (in the Chart and the Minutes of the Meeting (AGM)) are defamatory. ii. Whether the words refer to the Plaintiff. iii. Whether the Defendant had uttered defamatory words against the Plaintiff during the meeting AGM. iv. Whether the Defendant can rely on the Defence of Justification and Fair Comment. DECISION OF THE COURT [7] Having heard the evidence given by the witnesses for the Plaintiff and the Defendant, and after considering the submissions of the parties, on the balance of probabilities the Court finds that the Plaintiff has failed to prove his case against the Defendant. Therefore, the Plaintiff’s claim is dismissed with costs of RM6,000.00 to be paid by the Plaintiff to the Defendant. THE FINDINGS OF COURT THE LAW Page 7 of 23 [8] It is trite law that for the Plaintiff to succeed in his claim against the Defendant for defamation, the Plaintiff has to prove the 3 elements as enunciated in the case of Ayob Bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315 where Mohamed Dzaiddin J said: “The law of libel is governed by the Defamation Act 1957, and the burden of proof lies on the plaintiff to show: (a) the words are defamatory; (b) the words refer to the plaintiff, and (c) the words were published.” In the case of Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2018] 3 MLJ 727 the Court of Appeal held:

A plaintiff in a defamation suit must establish, on the balance of probabilities, that three requisite ingredients have been proven, namely: (a) the words were defamatory; (b) the words referred to the plaintiff; and (c) the words were published (see para 7).” Whether the words (in the Chart and the Minutes of the meeting (AGM)) are defamatory [9] In the case of Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 Court of Appeal held: Page 8 of 23 “(3) It is settled law that in libel and slander, the very words complained of, whether stated orally or published, were the facts on which the case was grounded. Thus, it was essential to set out the actual words used so that the court could then decide, as a matter of law, whether the said words gave rise to the defamatory imputations alleged. However, in the present case, the plaintiff’s statement of claim only made a general reference to the CCRIS report. The plaintiff had failed to reproduce any part of the CCRIS report much less picked out the parts that were defamatory. Failure to do this was fatal to the action and for this reason alone the plaintiff’s claim in defamation could not succeed (see paras 45 & 47).” [10] Going through the Plaintiff’s SOC, the Court finds that the Plaintiff has failed to show or highlight the defamatory words or statements in the Plaintiff’s pleading either from the Chart or the Minutes of the meeting (AGM) alleged by the Plaintiff for the Court to peruse and consider whether the meaning of the words or statements are defamatory in natural and ordinary meaning, and that it falls under the definition of defamation as established under the law of defamation. To ascertain whether the words are defamatory, it is essential for the Plaintiff to Page 9 of 23 plead or reproduce the defamatory words or statements made by the Defendant in his SOC. [11] The alleged defamatory words or statements should have been highlighted in the Plaintiff’s SOC and the Plaintiff must prove that the words or statements in natural and ordinary meaning are defamatory in nature. It is obvious in this case, the Plaintiff had only made general reference by producing the Chart and the Minutes of the meeting (AGM) without highlighting the actual words which the Plaintiff alleged to be defamatory. Making general reference by producing the whole Chart and Minutes of the meeting (AGM) dated 12.9.2015 is not enough to prove defamation. In the case of Credit Guarantee Corp Malaysia Bhd (supra) the Court of Appeal further states at p.664: “[46] The other aspect of pleading in an action in defamation is that where the plaintiff complains of an article, he must specify the offending sections rather than merely pleading the whole article. As Lord Denning MR pointed out in DDSA Pharmaceuticals Ltd v Times Newspaper Ltd [1972] 3 All ER 417, a pleading is defective if it throws on to the defendant a Page 10 of 23 long article without picking out the parts said to be defamatory.” [12] The Court also finds that the Plaintiff has failed to give evidence as to which words or statements in the Minutes of the meeting (AGM) the Plaintiff allegedly claimed to be defamatory and how it affects the Plaintiff. Therefore, it is clear that the Plaintiff in this case has failed to prove to the court which words or statements in natural and ordinary meaning are defamatory from both the Chart and the Minutes of the meeting (AGM). The Plaintiff refers to paragraphs 4 and 5 (refer page number 31 of Bundle A) in the Minutes of the meeting (AGM) dated 12.09.2015 as defamatory without explaining the paragraphs as to how it is considered defamatory. Paragraph 4 of the SOC only states that the Defendant relies on the information extracted from the SSM to prove that the Plaintiff has vested interest in Rose Vista on the Chart prepared by the Defendant. The Plaintiff in his testimony during the trial did not even deny that fact i.e. about the Plaintiff having vested interest in Rose Vista. [13] From the facts and evidence, the Court is satisfied that there is no proof of the actual words spoken by the Defendant which referred to the Plaintiff. The Plaintiff’s SOC does not show any defamatory word Page 11 of 23 or statement against the Plaintiff. The Plaintiff in fact admits that during the meeting held on 3.10.2013 (AGM) that the Plaintiff at the material time has interest in Rose Vista. During the trial, it can be seen that the Plaintiff was trying to change his statement from having “interest” to “indirect interest” in Rose Vista, but somehow in the end admits that the words “indirect interest” did not appear in his pleading or in the documents produced before the court. In fact, in paragraph 2 of the “Fakta-Fakta Yang Dipersetujui” the Plaintiff has agreed that the Plaintiff has an interest in Rose Vista. Whether the words refer to Plaintiff [14] It is trite law that failure to show the defamatory words or statements against the complainant i.e. the Plaintiff in this case will render the Suit against him unmaintainable. Wan Yahya bin Wan J (as he then was) at p. 85 in the case of Atip Bin Ali v Josephine Doris Nunis & Anor [1987] 1 MLJ 82 said: “(2) even on the assumption that there exists sufficient nexus between the plaintiff and the applicant herein, the plaintiff nevertheless cannot maintain this libel suit against the applicant. Defamation is a personal action maintainable by the person defamed and not by the individuals who are remotely Page 12 of 23 related to him. There is yet a further requirement which the plaintiff must, and in this case failed to prove, namely the words were published about him.” [15] Therefore, the next element to be proven by the Plaintiff is whether the Defendant had uttered defamatory statement against the Plaintiff during the meeting (AGM). The burden lies on the Plaintiff to prove that the Defendant had personally published or uttered the alleged defamatory words or statements against the Plaintiff. Though the Chart does relate to the Plaintiff’s interest in Rose Vista, in the opinion of the Court it does not form any defamatory statement from the Defendant against the Plaintiff as it merely states the truth about the Plaintiff’s position in Rose Vista at the material time, and at the same was one of the committee members of the management corporation (DCMC). [16] Going through paragraph 4 and 5 of the Minutes of the meeting (AGM) dated 12.9.2015, the Court also finds it unclear whether the statement referred to the Plaintiff or Rose Vista. Since the Plaintiff admits that he has interest in Rose Vista, the Court is of the view that the words or statements contained in the Chart and the Minutes of the meeting (AGM) are not defamatory of the Plaintiff. In fact, the Page 13 of 23 Chart in the Court’s opinion is justified and is a fair reporting by the Defendant as it is actually the truth about the Plaintiff which was raised during the AGM of DCMC. The Court also finds that the Plaintiff had failed to show to the Court which of the words or statements in the Minutes of the meeting (AGM) were the defamatory words or statements uttered/made by the Defendant against the Plaintiff during the said meeting. It is evident that at the meeting (AGM) the Defendant merely sought clarification from the Commissioner of Building pursuant to Section 87 of the Act on the issue of the Plaintiff having interest in Rose Vista. [17] From the evidence, it can be seen that Rose Vista which is the party to the matter did not make any defence, in fact later on their own accord offered their resignation. This was recorded in the Minutes of meeting dated 12.9.2015 (AGM). The Court is of the view that if the Plaintiff feels that the statement was against him, he should have defended himself at that particular time during the meeting (AGM) itself. However, the Plaintiff kept quiet and did not say anything even though the Plaintiff was actively participated in the said meeting. [18] Therefore, it is clear that there is confusion as to whether the statement refers to the Plaintiff or Rose Vista. What the Defendant Page 14 of 23 did at the material time was asking the Commissioner of Building for clarification as to whether the appointment of Rose Vista where the Plaintiff has interest was in violation of Section 87 of the Act. Since the Defendant was seeking clarification from the Commissioner of Building as to the Plaintiff’s position in Rose Vista, the managing agent company which manages the Condominium, the Court is of the opinion that the Defendant’s action in the circumstances cannot be constituted as defamatory. [19] The Court is of the view that Defendant being one of the owners of the unit in the Condominium during the Annual General Meeting (AGM) of the management corporation (DCMC) where is also member, has the right to raise this issue for clarification with the Commissioner of Building as it is his freedom of association to do so especially when the Commissioner of Building was present to answer their query regarding the management of the Condominium where he has interest in it and the Plaintiff should not be overly sensitive about it. Mohd Hishamudin J (as he then was) in the case of Tan Pei Ing V Ainon Binti Ali & Ors [2009] 3 MLJ 393 explained that the law of defamation is meant to protect the reasonable man, and not the overly sensitive individual. It is meant to protect the fundamental Page 15 of 23 rights to freedom of expression and freedom of association of the members in an association as what happened in the case before the Court, where at p.398 his Lordship said: “[14] In my judgment, the defendant’s letter was merely a response to the plaintiff’s letter. It is in this context that the defendant’s letter must be judged. In my view, if the defendant’s letter is judged as such, it is nothing more but a genuine letter of complaint to an appropriate authority – the election officer. One may not necessarily agree with the merit of the complaint. But, in my opinion, from its tenor the defendant’s letter expresses a genuine concern on the part of the defendants and were issued and circulated in good faith. I do not think that the defendants in lodging their complaint to the election officer, had gone over board. To my mind, the defendants were at liberty to complain to the election officer as much as the plaintiff was free to canvas for the ten candidates. The whole episode must be viewed in its proper perspective, that is to say, in the context of an ongoing election of the office bearers of PAM; and one must always be mindful of the fundamental rights to freedom of expression and freedom of Page 16 of 23 association of the PAM members as enshrined in the Federal Constitution.” The words had been published to the third party [20] Paragraphs 6, 7 and 8 of the Plaintiff’s Amended SOC states as follows: “6. Di dalam mesyuarat agung tahunan Ke-3 DCMC yang diadakan pada 12.9.2015 (“Mesyuarat tersebut”), Defendan telah mengagihkan sesalinan peta yang menunjukkan hubungan Rose Vista dengan Plaintif (“Peta tersebut”) kepada orang ramai yang menghadiri Mesyuarat tersebut.

Seterusnya di dalam Mesyuarat tersebut, Defendan menyatakan kepada orang ramai yang menghadiri Mesyuarat bahawa Rose Vista tidak boleh menguruskan Kondominium tersebut di atas alasan konflik kepentingan kerana Plaintif mempunyai kepentingan di dalam DCMC dan Rose Vista pada masa material (“Pernyataan Defendan tersebut”). Kelakuan Defendan membuat Pernyataan Defendan tersebut telah direkodkan di dalam minit Mesyuarat tersebut, muka surat tiga, perenggan ketiga.

Defendan seterusnya mendesak Pesuruhjaya Bangunan untuk mengesahkan bahawa perlantikan Rose Vista sebagai syarikat pengurusan adalah tidak betul (“Pengesahan tersebut”). Kelakuan Defendan mendesak Pesuruhjaya Bangunan untuk Pengesahan tersebut telah direkodkan di dalam minit Mesyuarat tersebut, muka surat ketiga, perenggan keempat.” [21] Having perused the Minutes of the meeting (AGM), the Court is unable to identify the alleged defamatory words or statements made by the Defendant personally against the Plaintiff. The Plaintiff had produced the whole Minutes of the meeting (AGM) but the Minutes of the meeting (AGM) was not prepared by the Defendant. The Plaintiff had failed to highlight the relevant parts in the said Minutes which the Plaintiff alleges to be defamatory of the Plaintiff because from the evidence and also from the admission of the Plaintiff himself, the Plaintiff did not deny having interest in Rose Vista and at the same was a member of DCMC. Therefore, the Court is of the view that the Defendant as the Chairman of DCMC at the material time has the right as part of the members in that association to refer any issues to the officer in charge of the building i.e. to the Commissioner of Page 18 of 23 Building in this case, and that any issues raised during that meeting cannot be constituted as defamatory. [22] Furthermore, the Plaintiff in this case has also failed to call the maker of the Minutes of the meeting (AGM) to testify as an independent witness to prove to the Court the content of said the Minutes that the Plaintiff alleges contained the defamatory words spoken or statements made by the Defendant against the Plaintiff. Besides proving the content of the said Minutes which the Plaintiff alleges are defamatory against the Plaintiff, the Plaintiff must also prove that the alleged defamatory words or statements were published to the third party by calling the relevant witnesses to testify. Failure by the Plaintiff to prove that the alleged defamatory words or statements were published to the third party will renders the defamation action against the Defendant to fail as it does not fulfill the third element needed for the defamation action under the law. Defence of Justification [23] Section 8 of the Defamation Act 1957 provides: “8. 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 Page 19 of 23 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.” [24] On the defence of justification, the burden is on the Defendant to prove justification that the defamatory words or statements were in fact true as enunciated by the Supreme Court in the case of Pakianathan v. Jenni Ibrahim & Anor [1988] 1 CLJ (Rep) 233 where it states: “The burden lies upon the defendant to establish justification. The burden does not lie on the plaintiff to prove that the defamatory words are false, because the law presumes this in his favour: Bett v. Lawes [1882] 51 LJQB at p. 361. To establish justification the defendant must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true: Peters v. Brodlaugh [1884] 4 TLR 467.” [25] As a whole, the Court is satisfied that the Defendant has proven the truth about the Plaintiff, who was one of the members in DCMC, a management corporation of the Condominium and at the same time has a vested interest in Rose Vista, a managing agent company which manages the Condominium for the following reasons: - Page 20 of 23 i. Admission by the Plaintiff in the pleading and during the trial; ii. The Plaintiff in paragraph 2 of “Fakta-Fakta Yang Dipersetujui” agreed that the Plaintiff has an interest in Rose Vista; and iii. The Defendant also produced company corporate profiles extracted from the SSM to prove that the information was obtained from the SSM. [26] The Plaintiff may say that he only has an indirect interest in Rose Vista but the fact remains unchanged that the Plaintiff has interest in Rose Vista. The Plaintiff’s argument that he has an indirect interest in Rose Vista in the opinion of the Court is an afterthought and against the rules of pleading. The Plaintiff himself admitted that the word “indirect interest” only appeared in his statement during the trial and was not disclosed in any other documents produced before the court. Defence of Fair Comment [27] Section 9 of the Defamation Act 1957 provides: “9. 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 Page 21 of 23 the facts alleged or referred to in the words complained of as are proved.” [28] On the statement that Rose Vista shall not be allowed to manage the Condominium due to conflict of interest, the Court is of the opinion that the said statement is a fair comment as from the evidence it can be seen that the said statement was actually a clarification made by the Commissioner of Building and not by the Defendant against the Plaintiff arising out of an issue discussed during the meeting (AGM) where the Commissioner of Building was present to clarify the issues relating to the management of the Condominium by DCMC. In the circumstances, Section 9 of the Defamation Act 1957 is applicable here as the statement was an expression of opinion and that it is a fair comment having regard to issues discussed during the said meeting. [29] The confirmation by the Commissioner of Building that the appointment of the Plaintiff as the managing agent of the Condominium is in breach of Section 87 of the Act in front of the participants of the AGM, in the opinion of the Court is not a statement to be defamatory on the Defendant’s part as the confirmation or statement was made by the Commissioner of Building to an issue Page 22 of 23 raised during the AGM held by DCMC, the management corporation of the Condominium where the Plaintiff was also a member and should have been aware about the provision of law under the Act. [30] In this case, the Court is of the view that the Defendant has successfully proven that the Plaintiff has interest in Rose Vista and the comment made during the meeting (AGM) that Rose Vista cannot be allowed to manage the Condominium due to the conflict of interest because the Plaintiff as a member of DCMC has an interest in Rose Vista is a fair comment, whether the said comment or statement was made by the Commissioner of Building or by the Defendant himself, should not be constituted as a defamatory statement. [31] In conclusion, from the facts and evidence, the Court is satisfied that the Plaintiff has failed to prove the actual words or statements made by the Defendant against the Plaintiff to give rise to the defamatory imputations alleged by Plaintiff against the Defendant. The general reference made by the Plaintiff by producing the whole Chart and the Minutes of the meeting (AGM) which are attached to the pleading is not enough as it only creates ambiguity, and it is difficult for the Court to interpret the meaning of the words which the Plaintiff claimed to be Page 23 of 23 defamatory. Therefore, the Plaintiff’s claim against the Defendant is dismissed with costs. ……………………….…………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. Mr. Alfred Lai Choong Wui with Mr. Yap Yoon Jan (Counsels for the Plaintiff / Appellant) Messrs. The Law Office of Wong & Ang Mr. Parma Chandravevah (Counsel for the Defendant / Respondent)