Chua Chin Soon v Wong Yew Choong (BA-23NCvC-49-10/2021)

the words refer to the claimant; and (3) the words were published. It is noted that neither party pleaded any positive defences to the claims of defamation alleged against each other. In other words, both the Plaintiff and the Defendant put each other to strict proof of the claim and counterclaim, and raised no substantive issues e.g. of justification and/or privilege. [4] Thus, the only issues for determination in this action are as follows:

Whether the Alleged Defamation in the Facebook Post and Telegram Chat (i) is defamatory; (ii) refers to the Plaintiff; and

(iii) was published by the Defendant.

Whether the publication of the Letter of Demand on the Telegram Chat (i) is defamatory; (ii) refers to the Defendant; and (iii) was published by the Plaintiff.

Whether the parties are entitled to any remedies and the quantification of damages, if any. Analysis and Findings Alleged Defamation by Defendant [5] The offending statement in the Facebook Post was reproduced in the Statement of Claim. According to the Plaintiff, the impugned Facebook posts with the Alleged Defamation appeared on the Facebook wall of with group photographs of the Plaintiff captioned with the lengthy statement on 15-6-2021. The Facebook account in question is owned and operated by the Defendant. [6] A printout of the Facebook Post was produced at the trial with translation. Among other things said, the author who referred to himself the editor, readers about urged investors to lodge police reports so that the police will investigate it for deposit taking. [7] For a sense of the nature of the statement, I reproduce an extract (translation of Chinese text): Berita besar, berita besar! Ada berita ini! Yang asyik cakap berita palsu itu masa akan membuktikan segala-galanya dan membuatkan kamu semua percaya terhadapnya, menurut pengalaman dan pandangan penyunting selama ini serta selepas melawan dengan beberapa penipu selama ini tiada sesiapa pun dapat larikan diri, halaman yang sebelum ini kamu kata bahawa Kackson Chua Chin Soon I/C: 891127-14-6085 adalah seorang penipu (fraudster) dan juga terdapat banyak komplot yang mempertahankannya melaporkan halaman ini, serta kata bahawa ini adalah berita palsu, taktik seorang penipu (fraudster) kebiasaannya adalah menolak segala liabilitinya kepada orang lain, sebelum ini sudah pernah cakap Kackson Chua Chin Soon I/C: 891127-14-6085 merupakan seorang penipu (fraudster) daripada kumpulan penipu CCI Sdn Bhd tetapi kamu semua tidak percaya, serta kata bahawa COOPER MARKETS Forex Broker House yang dioperasi olehnya juga tidak mempunyai lesen kamu semua juga memilih tidak percaya malah datang menyerang halaman saya ini, haha!... [8] On 29-6-2021, the Plaintiff issued the Letter of Demand to the Defendant. On 30-6-2021, former solicitors for the Defendant contacted and stated that the Defendant posted the Facebook Post without verification. This was confirmed in an email back to the former solicitors on the same day. [9] On 1-7- former solicitors was sent to complain that the Letter of Demand had been shared in group chats one with over 200 members and another with over 600 members. A chat on Telegram group with 619 members showed messages between the D ( ). A relevant extract of the Telegram chat was reproduced in the Statement of Claim and a printout of it was adduced in evidence. [10] The relevant extract of the Telegram Chat started with the Defendant telling Jimmy then hailed the Defendant as a hero of the scam victims. Referring to the again, the Defendant thanked Jimmy and stated (translation of Chinese text): Saya menegakkan keadilan iaitu yang benar memang benar belaka supaya tidak ada banyak orang kena tertipu, setiap orang mempunyai tanggungjawab atas perkara ini Tidak ada cara lain! Semua orang cakap ialah penipu (fraudster), tetapi si penipu (fraudster) pula keluarkan surat peguam terlebih dahulu! Pukimak (bahasa kasar). Lepas perkara ini selesai, saya [11] On the same day on 1-7-2021, former solicitors for the Defendant to say that the Defendant never made the statement complained of to imply that the Plaintiff is a fraudster and conman and that he red the information already shared by others and expressed the Def willingness to apologize. The solicitors referred to remarks on a Telegram chat group on 30-6- made out of frustration and in a spur of that moment. [12] At the trial, evidence was led that a police report was made by a third party which led to the Plaintiff being arrested on 20-9-2021 on charge of alleged cheating in relation to Cooper Market investments. He was given a discharge not amounting to an acquittal ( ) on 20-10-2022. [13] So much for the facts relating to the Alleged Defamation by the Defendant. Identification [14] This Court finds that Alleged Defamation in the Facebook Post and Telegram Chat clearly identified the Plaintiff as the subject of the identity card number and photographs of the Plaintiff with members of his staff, family and business associates. Defamatory Meaning [15] The generally accepted textbook definition of what is defamatory can be taken from Gatley on Libel and Slander as cited in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 There is no wholly satisfactory definition of a defamatory ridic [16] The proper approach to determine if the words complained of are capable of bearing a defamatory meaning is as explained in Tun Datuk [1996] 1 MLJ 393: reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any references or implication from which persons can r [17] The test for whether a statement is defamatory is thus an objective one, independent on the subjective state of mind of the author or the specific audience to whom it was published. The Federal Court held in Lim Guan Eng v Ruslan Kassim & Another Appeal [2021] 4 CLJ 155 held as follows: [29] The defamatory nature of the imputation is to be judged by the ordinary and reasonable members of the community or an appreciable and reputable section of the community (see Jones v. Skelton [1963] 3 All ER 952; Peak v. Tribune Co [1909] 214 US 185; Hepburn v. TCN Channel Nine Pty [1983] 2 NSWLR 682). The ordinary person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd [1908] 6 CLR 1, who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577) . [18] Further, the offending words must be considered in the context of the whole article and not simply on isolated passages. Per Gatley on Libel & Slander, 12th edn, at para 3.31: It follows from the fact that the context and circumstances of the publication must be taken into account, that the claimant cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting. In this regard, the reasonable reader is assumed to have read the whole article complained of. If "in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together". [19] This Court has no difficulty in finding that in their natural and ordinary meaning, the words when used to describe a person in the context in which they appeared in the Facebook Post and Telegram Chat, are words capable of bearing a defamatory meaning. [20] This Court finds that the Alleged Defamation was in fact defamatory of the Plaintiff. It was character, attributing to him dishonesty and criminal conduct. It tended to lower the Plaintiff in the estimation of right-thinking members of society generally and exposed him to hatred and contempt. There were no redeeming circumstances that eliminated or mitigated the sting of the defamation. Publication [21] At the trial, the Defendant admitted that the Facebook Post was tiff was identified in the post. The Telegram user that chatted with Jimmy and who repeated that the Plaintiff is a fraudster was also the Defendant. In all these instances complained of, the Alleged Defamation were published by the Defendant. [22] In this case, it was not seriously disputed that the Alleged Defamation was published widely on Facebook followers who probably include like-minded social media warriors, and re-published via at least one other platform, i.e. Telegram. The printouts of the 15-6-2021 Facebook Post and 30-6-2021 Telegram Chat were captured by the Plaintiff who testified as SP-1. [23] The Defendant testified that he shared the Facebook Post about the Plaintiff believing that it was true. As mentioned however, it was neither pleaded nor proved by the Defendant whose burden it was, that the sting of the defamation is true . As explained by the Court of Appeal in Eagle One Investment Ltd & Ors v Asia Pacific Higher Learning Sdn Bhd [2020] 3 CLJ 218: [54]Defamation primarily protects reputation and there is no obligation to prove malice. The statement is presumed to be false and the defendant is enjoined to prove it to be true. The purpose of compensate him [24] At the trial, the Defendant conceded that he had no basis for his belief that the Alleged Defamation was true other than that it was information shared online. intention is irrelevant (unless it is to prove malice). [25] In this case, this Court finds that t own words and conduct also discredited his claim of innocent and unintentional publication as it revealed a clear intent to publicise the unverified information. In Malaysia, a person who republishes or shares defamatory content that vilifies another is as liable as the original author of the statement. [26] Based on the admitted facts and evidence, all the elements of the cause of action against the Defendant are satisfied in what this Court might describe as a classic case of defamation. Alleged Defamation by Plaintiff [27] The Letter of Demand is fairly typical in that it identified what were and set out the following assertions:

the statements and/or remarks in the Defamatory Statements are false and defamatory to our client in their natural and ordinary meaning and/or innuendos understandable by any reasonable person;

the contents of the Defamatory Statements allege and/or impute that our client is a fraudster and/or con man;

the publication of the false and defamatory statements in the Defamatory Statements against our client is motivated by malice, recklessness and/or bad faith on your part which is calculated to embarrass our client and cause irreparable d standing; and

Our client states that your subsequent actions on Facebook in amending, hiding and/or removal of the Defamatory Statements are testament of the false and baseless nature and closed with the Plain demands for the publication of an apology, an undertaking not to repeat or republish the impugned statements, and a reservation of rights to commence legal action against the Defendant. Identification [28] As the Letter of Demand was addressed to the Defendant, there is no difficulty establishing that the pleaded defamatory imputations (set out below) referred to the Defendant. Defamatory Meaning [29] As a matter of law and procedure, it is well-established in Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523 that the statements published are the material facts and must therefore be set out in the statement of claim, such that a mere description of their substance, purpose or effect is insufficient. In this case, the Defendant did not set out the alleged defamatory statement in the pleading nor did the Plaintiff seek particulars or object to any evidence led at the trial. [30] Referring to the Letter of Demand as a whole which was adduced in evidence, the Defendant pleaded that it was capable of bearing the following defamatory meaning, i.e. that the Defendant:

is a cheat, liar and/or crook;

will be sued by the Plaintiff; and

committed criminal defamation ( ). The Plaintiff denied this. [31] If an accusation is levelled against another in a letter of demand, the sting of the defamation is in the accusation. The natural and ordinary meaning of the words used in the Letter of Demand is that the Defendant has spread false and defamatory statements about the Plaintiff. Objectively, this is capable of conveying that the Defendant is a liar and committed defamation but not that the Defendant is a cheat and/or crook. [32] However, it is accepted that a statement may be capable of conveying a defamatory meaning but, it may or may not be defamatory in fact, depending on the circumstances in which they were published. Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee [2019] 3 CLJ 729: [38] The test involved in determining whether or not the words complained of are defamatory is a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand that in a defamatory way (see: Wong Yoke Kong & Ors v. Azmi M Anshar & Ors [2003] 6 CLJ 559; [2003] 4 MLJ 96;) . [33] In the context and circumstances of the publication in this case, the Defendant failed to prove that the Letter of Demand, was in fact defamatory of the Defendant. The Defendant under cross-examination, candidly agreed that the Letter of Demand did not defame him. In fact, the only effect of the Letter of Demand that is in evidence is that the Defendant was hailed as a hero of victims allegedly scammed by the Plaintiff. Publication [34] In this case, the Plaintiff contended that the Letter of Demand was only sent to the Defendant via e-mail and WhatsApp. It is common ground however, that the Letter of Demand was almost immediately circulated to two Telegram chat groups with over 800 members collectively. In S Pakianathan v Jenni Ibrahim [1988] 1 CLJ Rep 233, the Supreme Court held: In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. The uttering of a libel to the party libelled is no publication for the purposes of a civil action: Wennhak v. Morgan [1888] 20 QBD 635. A plaintiff will not, as a rule, be permitted to wait until after discovery before naming the persons to whom a libel was published: Barham v. Lord Huntingfield [1913] 2 KB 193 (CA) . [35] The central issue at the trial therefore, was whether it was the Plaintiff who was responsible for the wider publication of the Letter of Demand as contended by the Defendant. The he was not given a copy of the Letter of Demand and had instructed his solicitors to send the Letter of Demand confidentially to the Defendant alone so as not to aggravate the situation. [36] The Defendant bears the burden of proving that it was the Plaintiff who published the Letter of Demand to Telegram. However, the Defendant led no direct or circumstantial evidence to prove this fact e.g. that the Plaintiff is a member of the Cooper Market Telegram group. The Defendant himself was a member but he said that he had left, did not re-join it or take any other steps to trace the origin of the Letter of Demand. [37] This Court is further minded to draw an adverse inference against the Defendant for failing to take any steps to identify and call Jimmy to testify at the trial. It is trite that where no diligent and reasonable exertion were made to procure a witness, the Court cannot come to a finding that the witness could not be found. [38] For the above reason, the Defendant failed to discharge the burden of proving on a balance of probabilities, all the necessary elements of the charge of defamation against the Plaintiff in the counterclaim. Remedies and Quantification of Damages [39] It is trite law that once defamation in the form of libel per se is proven as in this case, there is no requirement for the Plaintiff to prove resulting presumed. In this case, the Plaintiff has claimed general compensatory damages, aggravated damages and exemplary damages, as well as an injunction and an apology. [40] As explained in Lim Guan Eng v Ruslan bin Kassim and another appeal [2021] 4 CLJ 155, compensation to damage to reputation must include such sum as would vindicate good name and take into account the distress, hurt and humiliation which the defamatory publication has caused. In Dato Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2018] 1 CLJ 145, the Federal Court cited Defamation Law, Procedure & Practice by Price & Duodu (3rd edition, para 20-04 at p. 208) on the several factors that a court must take into account in assessing compensatory damages: vindication and injury to reputation and feelings depends on a number of factors:

The gravity of the allegation.

The size and influence of the circulation.

The effect of the publication.

The extent and nature of the claimant's reputation.

The behaviour of the defendant.

The behaviour of the claimant. This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court may take [41] Aggravated damages are awarded in instances where the injury has been caused by the exceptional conduct of the Defendants. As explained in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and anor appeal [2018] 1 MLJ 784: [32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant. [42] As for exemplary damages, an award may be justified in the exceptional circumstances laid down Rookes v Barnard [1964] UKHL 1 as approved in Malaysia. See for example, Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn. Bhd. & Ors [1993] 3 MLJ 352 where Edgar Joseph Jr. SCJ, sitting as a High Court Judge, said this: In a famous passage in his judgment in Rookes v Barnard [1964] AC 1129 Lord Devlin, with the unanimous approval of all his brethren, reviewed the law and laid down that exemplary damages could only be awarded in three categories of cases; namely, oppressive action by officers of the Crown; secondly, cases where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk ; and thirdly, where statute expressly authorised it. [43] he gravity, influence and effect of the Facebook Post economic interests as a person engaged in the very business in which he was falsely accused of dishonest conduct. Based on the unchallenged evidence, the Facebook Post was taken down by the Defendant on 29-6- 2021 after it was shared, which meant that it was in the public domain for more than 2 weeks. [44] The Defendant and the community in which he was engaged were actively calling for criminal consequences to befall the Plaintiff based on the unverified defamatory content of the Facebook Post. They were in an echo chamber that amplified the defamation but each were also connected beyond the immediate circle to the larger community. [45] In claiming for aggravated and exemplary damages, the Plaintiffs pleaded that the Defendant was actuated by malice and that the first defamation vide the Facebook Post was aggravated by the further statements made by the Defendant on the Telegram Chat. [46] This Court finds that the publication of the Facebook Post by the Defendant was aggravated by the malice that manifested in the reaction to the Letter of Demand on the Telegram Chat. The also evident by the discharge of his former solicitors who had acted promptly to mitigate the situation and his repeated reference to the Plaintiff as a fraudster on the Telegram Chat. [47] This Court is guided by the Court of Appeal in Chin Choon v Chua Jui Meng [2005] 2 CLJ 569 , which clarified the circumstances for the award of exemplary damages as follows: With respect, we do not think it a fair interpretation of Lord Devlin's speech when read as a whole that he intended that grant of punitive or exemplary damages to be limited only to cases of monetary profit. That is too narrow an interpretation. In our judgment, any form of advantage gained by a defendant in a defamation case suffices. It need not produce an immediate profit in money terms as happened in Dato' Musa Hitam v. SH Alatas & Ors [1991] 1 CLJ 314; [1991] 2 CLJ (Rep) 487 HC (refd). It may produce an immediate non-pecuniary advantage that may translate itself into a [48] The Court of Appeal in Chin Choon also provided the following guidance for the assessment of damages in defamation case: There is one matter of some importance that this case has raised. It appears to be the respondent's argument that separate awards for aggravated and exemplary damages should be made. That is what the High Court did. With respect, we disagree with this approach. For many years it was thought that in all cases of tort global awards should be made, including in claims for personal injuries. However, only in respect of claims for personal injuries, when the courts started awarding interest at different rates on the different heads of damages, it became necessary for courts to make separate awards for pain and suffering and loss of amenities, actual loss of income, future loss and special damages. But in defamation cases it is never the practice to award interest on each separate head of damages. Interest is merely granted on the single award. In our judgment, we should, in defamation cases, maintain the age old practice of making a global award in order to limit the size of awards. Otherwise we will have runaway damages once again.. [49] This Court finds that the Defendant showed a cynical disregard for the Plaintiff s rights and while he did not appear to profit monetarily, it is reasonable that the Defendant would have benefited from the social reward systems that encourage likes, shares and comments on social media and the amplification of his perceived online influence. Such behaviour must be checked and is considered sufficient for this Court to also justify an award of exemplary damages. Conclusion [50] The Court awards a global award of general, aggravated and exemplary damages in the sum of RM200,000.00, the injunction sought by the Plaintiff and further orders as set out below.

suatu perintah bahawa Defendan sendiri, pegawai-pegawai, agen-agen, pekerja-pekerja, nomini-nomini, wakil-wakil dan ahli-ahli Defendan disekat dan/atau dilarang oleh suatu injunksi daripada membuat, mengeluarkan, mengedar, menyebar dan menghantar penyataan-pernyataan palsu, fitnah, sindiran dan hasutan berhubung dengan Plaintif sendiri, pelanggan-pelanggan, pekerja-pekerja, keluarga-keluarga Plainitif melalui apa jua cara;

suatu perintah bahawa Defendan dalam masa 7 hari dari penerimaan draf pernyataan rasmi bertulis dari peguamcara Plaintif yang hendaklah mengandungi secara substantif (i) rujukan kepada Facebook Post; (ii) dapatan Mahkamah di dalam tindakan ini bahawa Defendan telah melakukan fitnah dalam pengongsian Facebook Post tersebut dan lain-lain rujukan kepada kata-kata berunsur fitnah yang berbangkit daripadanya tanpa pengesahan maklumat yang terkandung di dalamnya; dan (iii) permohonan maaf tanpa syarat oleh Defendan kepada Plaintif; menerbitkan pernyataan rasmi tersebut di akaun Facebook Defendan dan Telegram group

Defendan membayar kepada Plaintif ganti rugi pampasan, teladan dan teruk sebanyak RM200,000.00;

Faedah pada kadar 5% setahun ke atas jumlah penghakiman dari tarikh penghakiman sehingga penyelesaian penuh; dan

Kos RM10,000.00. [51] of RM10,000.00. Bertarikh : 16 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : Tom Lim Yap Thong, Messrs Tiong Woon & Khusyri (Kuala Lumpur) Untuk Defendan : Sui Yoke Kuen, Messrs Srileena & Sui (Petaling Jaya)