Chua Wei Kee v 1. ) Yong Hwei Sin (WA-23NCvC-85-11/2022)

LEE WAN SING (NO K/P: 760113-01-5367) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

This is a claim for defamation commenced by the Plaintiff, Mr. Chua Wei Kee (P), against the two Defendants, namely Ms. Yong Hwei Sin (D1) and Mr. Lee Wan Sing (D2). A Judgment in Default of Appearance was entered against D1 on $ 9^{th} $ February 2023. The present proceedings concern only the claim against D2.

A relatively short full trial was conducted over two (2) days, i.e. on $ 8^{th} $ and $ 9^{th} $ December 2025 with the first day in person at the Kuala Lumpur High Court and the second day via Zoom. P called two witnesses, i.e., himself (PW1) and one Mr. Tan Siew Koon, also known as Gary (PW2). D2 elected not to call any witnesses at trial.

Written submissions after trial were filed by both parties pursuant to this Court's direction. Having carefully considered the pleadings, the documentary evidence, the notes of proceedings, the agreed facts, and the written submissions of both parties, the Court now delivers this Judgment.

P is a businessman who was the Founder, Chief Executive Officer, and Executive Chairman of the JD Group of Companies, which includes AGV Group Limited (hereinafter referred to as "the Company"), a company publicly listed on the Singapore Exchange (SGX). He holds several civic, advisory, and honorary positions and has been conferred several royal honours in Malaysia, which were not challenged by D2 at trial, save for the Plaintiff confirming that they were of a non-commercial nature.

D2 served in an advisory capacity to P in relation to the affairs of the Company and the JD Group from the year 2017 to 2021. It is not disputed that D2 was never a formal employee of the Company. The Plaintiff remunerated D2 on a goodwill basis from his personal funds and this was confirmed by P during examination in chief. D2 was also introduced by P to the Company's partners and associates in connection with the affairs of JD Resources Group.

In or about mid-2021, the Company's Board of Directors received a complaint from an unknown whistle-blower against P (hereinafter referred to as 'the Complaint'). According to P, D1 had admitted to him that she was the whistle-blower. The Complaint raised against P contained allegations of irregularities relating to P's conduct as Executive Chairman, including financial matters. The matter was then referred to the Company's Audit Committee, and an internal investigation was commissioned and conducted by the appointed internal auditors, Nexia TS Risk Advisory Pte Ltd ('Nexia').

On 29th August 2021, the Company posted a public announcement on SGX (hereinafter referred to as 'the Company Announcement'), disclosing the receipt of the complaint and informing shareholders that P had been advised and had agreed to take a leave of absence (hereinafter referred to as 'garden leave') pending the outcome of the internal investigation. P then proceeded on such garden leave and subsequently resigned from his position at the Company on 14th September 2021.

It is also undisputed that at the time of the alleged statements made by D2, an unrelated Civil suit commenced by one Ng Wuoi Uoi against P and Tan Hooi Hooi was also ongoing in the Penang High Court vide PA-23NCVC-9-03/2021 (hereinafter referred to as "Suit No.9").

D2 was not formally privy to the confidential workings of the Audit Committee or the internal investigations conducted by Nexia. However, the background facts of the complaint, the investigation, the garden leave, and the Company Announcement were all matters publicly known to shareholders of the Company from the SGX announcement.

P's pleaded case at paragraph 28 of the Statement of Claim is that, on or about July to November 2021, D2 approached shareholders of the Company, in particular one Chan Fook Meng ('Chan') and PW2 and made the following alleged slanderous and defamatory statements concerning P (collectively referred to as 'the impugned statements') of which there are allegedly eight (8) of them as follows: i. "DS is working with contractor to forge invoice"; ii. "DS is going to be put on garden leave"; iii. "DS is under investigation for forging invoice and mark up the prices...the independent director found out and put DS on garden leave"; iv. "He hike up the price of renovation in AGV Johor"; v. "Got something bad that is going to happen to AGV...if can better sell your shares before it goes down further"; vi. "DS is not focusing on his work as he got many affairs and is under investigation"; vii. "DS got affair outside ... he is cheating on his wife"; and viii. "He is a womanizer and got many affairs ... one with china woman"

It is undisputed that the prefix 'DS' refers to 'Dato' Seri', one of the honorific titles conferred upon the Plaintiff. D2 in his Statement of Defence admitted that the second impugned statement is substantially true, but denied making the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th impugned statements altogether. The fact that D2 admits that he made the second impugned statement in relation to P as 'DS' fortifies the conclusion that it referred to P.

P at paragraphs 22 and 23 of the Statement of Claim also pleads no less than 31 alleged slanderous statements made by D1 to another shareholder, Khoo Boon Han, on the specific dates of $ 5^{th} $ and $ 6^{th} $ November 2021. However, with the Judgment in Default obtained against D1 and Khoo Boon Han not testifying, this Judgment will only be limited to the eight (8) impugned statements alleged to have been published by D2.

I will now proceed to set out the applicable law and my analysis thereafter.

The applicable law is trite and not disputed between the parties. To succeed in an action for defamation, a Plaintiff bears the burden of proving three essential elements on a balance of probabilities: i. that the statement complained of is defamatory in its natural and ordinary meaning; ii. that the statement refers to the plaintiff; and iii. that the statement was published to at least one person other than the Plaintiff.

Similarly, in the case of Chong Swee Huat & Anor v Lim Shian Ghee (t/a L & G Consultants & Education Services [2009] 3 MLJ 665, the Court of Appeal held that in an action for libel, the Plaintiff must prove that the matter complained of: i. is defamatory; ii. has been published to a third person (publication); and iii. refers to the plaintiff. [See also the cases of Ayob Bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315 and Kian Lip Construction v Hongkong Bank Malaysia Bhd [2002] 7 MLJ 283]

All three elements must be proved. The failure of any single element is fatal to P's claim. The Court will now address each element in turn.

There is no complete or comprehensive definition of what constitutes a defamatory statement, since the word 'defamatory' is nowhere precisely defined. In relation to the natural and ordinary meaning of allegedly defamatory words, the test is objective, namely, what meaning a reasonable person of ordinary intelligence would attribute to the words in their full context.

Further, in relation to determining whether a statement is defamatory, reference is made to the case of Keluarga Communication v Normala Samsudin [2006] 2 MLJ 700; [2006] MLJU 40; [2006] 2 AMR 604; [2006] 2 CLJ 46 where the Court of Appeal quoted a passage from Gatley on Libel and Slander (10th Edn) that draws attention to the necessity to take into consideration, not only the actual words used, but also the context of the words. Thus, words must not be taken out of context, and a Plaintiff cannot cherry-pick isolated passages while ignoring other parts of the communication, which might take away the sting.

In an action for slander specifically, the law requires that the actual words spoken be identified with sufficient precision.

As provided in Halsbury's Laws of Malaysia - Defamation (Volume 13(1)), the ingredients that constitute the tort of slander are for a Plaintiff to prove that the matter complained of, which emanated from the Defendant, is defamatory, refers to him (an issue of identification) and was transmitted to a third person (publication). The burden of establishing those ingredients at the outset rests on the Plaintiff.

The Court of Appeal in the case of Tiow Weng Theong v Melawangi Sdn Bhd [2018] 6 MLJ 761 affirmed that defamatory words must be set out in verbatim in the pleadings in the form of a quotation, and that a description, summary, or paraphrase of content, purport or effect is insufficient. This requirement goes hand in hand with the need to prove at trial that those specific words were actually spoken.

Publication requires communication of the defamatory words to at least one person other than the plaintiff. The standard of proof is the civil standard on a balance of probabilities. Conjecture, speculation, or inherently unreliable recollection is insufficient to discharge that burden. E. ANALYSIS AND FINDINGS Issue 1: Whether D2 published the impugned statements to PW2?

The Court begins with the question of publication, as it is both the central dispute and, in the Court's view, the dispositive issue.

P's case on publication rests entirely upon the oral testimony of PW2. Mr. Chan Fook Meng, i.e., the other person to whom D2 allegedly made the impugned statements, was not called as a witness. There is therefore no evidence before this Court from Chan, who, on P's own pleaded case, was one of the two primary recipients of D2's alleged statements.

In this regard, the Court will at the outset note/make the observation that the complaints in relation to D2 differ significantly from those against D1 as pleaded in the Statement of Claim. Firstly, in relation to D1, it is pleaded from paragraphs 22 to 27 of the Statement of Claim that D1 had made the allegedly slanderous/impugned statements on two specific dates to Khoo in the presence of P. However, in relation to D2, it is pleaded at paragraph 28 of the Statement of Claim that "on or about July to November 2021, D2 made and published slanderous statements about the Plaintiff to Chan and Gary through multiple phone calls and meetings with Chan and Gary". The immediate observation I make is that, quite apart from no specific dates or number of calls or meetings being identified, it is also not identified which statements were made to Gary and which to Chan, but instead both are lumped together. In fact, when asked during cross-examination as to which statements were said to whom, PW1 was unable to identify what was said to whom and that he did not know who said what. [See page 29 of the Notes of Proceedings dated 8th December 2025]

As highlighted earlier, Chan did not testify, but only Gary as PW2, whose evidence I will now consider. PW2 testified that he received phone calls and attended meetings in which D2 communicated information about P. However, the Court has carefully reviewed PW2's cross-examination and is compelled to conclude that his evidence is, in critical respects, uncertain, internally inconsistent, and insufficiently reliable to sustain P's case on a balance of probabilities.

In the Court's view, the following features of PW2's evidence are material: i. PW2 could not recall the number of meetings he had with D2, the dates on which they occurred, or the specific occasions on which the alleged statements were made and that he had no recordings or records. When pressed on these matters during cross-examination, PW2 testified that: 'Mr Lim, all this happened 4 or 5 years ago' ... 'I cannot recall.' [See page 17 of the Notes of Proceedings dated 9th December 2025] While the Court recognises that the passage of time inevitably affects memory, this level of uncertainty goes beyond ordinary forgetfulness. PW2 was unable to provide even the approximate month or year of individual communications, which makes it impossible for the Court to verify the sequence of events or assess whether what was said was said in a particular context. ii. More significantly, PW2 conceded during cross-examination that he was unable to reproduce the impugned statements verbatim. As highlighted earlier, the law requires that defamatory words be identified with precision. Slander turns on the specific words spoken, in particular their meaning, context, and effect and not merely on the general impression they created. PW2's concession that he could not recall the exact words, and his reliance on vague approximations and general impressions, leave this Court in a position where it is not satisfied that the specific impugned statements pleaded at paragraph 28 of the Statement of Claim were in fact uttered by D2 in the terms alleged. iii. To highlight as an example, in relation to the $ 6^{\mathrm{th}} $ $ 7^{\mathrm{th}} $ and $ 8^{\mathrm{th}} $ impugned statements, i.e., that D2 said P 'is a womanizer and got many affairs...one with china woman' as well as allegations in relation to having affairs, PW2's response during cross-examination was particularly telling and equivocal. He stated: 'Ah, womaniser, I'm not too sure about that. But ah, I think, you know, he did say a, he did mention a word or 2 concerning about womanizing.' [See page 22 of the Notes of Proceedings dated $ 9^{\mathrm{th}} $ December 2025] This, in the Court's view, is not proof of a specific defamatory statement. It is, at best, a vague recollection that something was mentioned on the subject. Such evidence does not meet the standard required to establish publication of the pleaded $ 6^{\mathrm{th}} $ $ 7^{\mathrm{th}} $ and $ 8^{\mathrm{th}} $ impugned statement. iv. In relation to the 5th impugned statement, i.e., the alleged warning to shareholders to sell their shares, PW2 testified during cross-examination that he 'cannot recall' because he did not intend to pull out the share after hearing this' and had instead approached P to verify what he had heard. [See page 22 of the Notes of Proceedings dated 9th December 2025] This evidence suggests that PW2's recollection of the alleged impugned statements is selective, filtered through his own subsequent actions and conversations, and potentially influenced by what P subsequently told him. The Court is not satisfied that PW2's account of the 5th impugned statement is a reliable account of D2's actual words. v. Most significantly, PW2 conceded during cross-examination that 'whatever George is telling you, there are more than, more than whatever you have told, uh, Dato' Chua'. [See page 24 of the Notes of Proceedings dated 9th December 2025] In other words, PW2 accepted and agreed that what D2 allegedly said to him exceeded in content what PW2 then reported to P. This concession is troubling as it leads to an irresistible inference that PW2's witness statement which forms the basis of P's pleaded case, may not even accurately capture the totality of what was allegedly communicated, still less whether what was communicated was specifically defamatory in the terms pleaded by P. vi. Crucial also is that P himself, when asked during crossexamination whether he could confirm that what PW2 reported to him was accurate or true, he acknowledged as follows-'I don't know where he get it' [See page 33 of the Notes of Proceedings dated $ 8^{th} $ December 2025] and 'Yeah, I can't tell, yes. Hmm.' [See page 30 of the Notes of Proceedings dated $ 8^{th} $ December 2025] This, in my view, is an important admission, i.e., one of which P accepted that he had no independent means of verifying the contents or accuracy of what PW2 told him D2 had said. The entire evidential foundation of the case against D2, therefore, rests on one witness's imprecise recollection of conversations that took place up to five years before trial, which even P himself could not corroborate.

The Court is mindful that D2 did not testify, and that P urges this Court to draw an adverse inference under Section 114(g) of the Evidence Act 1950 (hereinafter referred to as "EA 1950"). However, with respect, the adverse inference provision does not operate to substitute for evidence that P himself was required to adduce before this Court. The adverse inference may be drawn only once the party bearing the burden of proof has adduced sufficient primary evidence to raise a prima facie case. Where the primary evidence adduced is itself inherently unreliable and insufficient, Section 114(g) EA 1950 cannot repair that deficiency.

To this end, reference is made to the case of Jaafar bin Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ 693, where the Federal Court confirmed that an adverse inference under Section 114(g) EA 1950 is permissible where evidence that could be but is not produced would, if produced, be unfavourable to the withholding party. The operation of this provision presupposes that there is already sufficient evidence before the Court upon which it can evaluate the credibility and strength of the case. It does not relieve the Plaintiff of his primary burden.

In the present case, the Court finds that P has not established a sufficiently cogent and reliable evidentiary foundation to justify drawing an adverse inference against D2's silence to tip the balance. The weakness in P's case is not merely a gap that D2's failure to testify could fill, but is a fundamental deficiency in the quality and reliability of the only evidence adduced. Drawing an adverse inference in these circumstances would impermissibly shift the burden of proof onto D2, which is not the law.

The Court therefore finds, on the evidence before it, that P has failed to prove, on a balance of probabilities, that D2 published the 1st, 3rd, 4th, 5th, 6th, 7th, or 8th impugned statements to PW2 in the terms pleaded at paragraph 28 of the Statement of Claim. This finding alone is sufficient to dispose of P's claim in respect of those statements. Issue 2: The 2nd impugned statement — "DS is going to be put on garden leave"

The 2nd impugned statement stands in a different position. D2 has admitted, through his Statement of Defence, that this statement is true in principle and in fact and hence relied on the defence of justification under Section 8 of the Defamation Act 1957. The Court accepts this admission. The fact that P was placed on garden leave was publicly disclosed in the Company Announcement posted on the SGX on 29th August 2021, i.e., a public document available to all shareholders of the Company.

It is trite that a defence of justification is a complete defence if D2 can establish that the defamatory words are true in substance and in fact. However, such a defence has to be specifically pleaded with full and clear particulars of the facts and matters relied on. Thus, a Defendant who is unable to prove the truth of all the material statements in the alleged libel may nevertheless succeed in the defence of justification where the Defendant can show that the words not proved to be true or truthful do not materially injure the Plaintiff's reputation. It is the truth of the imputations of the overall statement and not the truth of every word that is material. [See the cases Raja Syahrir Bin Abu Bakar & Anor v. Manjeet Singh Dhillon And Other Appeals [2019] 4 MLRA 218 and Chong Swee Huat (supra). A statement that accurately conveys a fact that is already in the public domain and which the maker has a legitimate basis to communicate is not actionable in defamation. Furthermore, D2 submits, and the Court accepts, that the 2nd impugned statement was communicated to shareholders in response to their own enquiries following the public Company Announcement. This is consistent with D2's role as an individual who had been introduced to the Company's shareholders and partners by P himself.

The Court is further not satisfied that the 2nd impugned statement, standing alone, would have any materially additional defamatory effect beyond what was already in the public domain by virtue of the Company Announcement. A statement conveying the fact of garden leave, which is a neutral corporate governance measure and does not in itself connote guilt or misconduct, is not defamatory in its natural and ordinary meaning. The defence of justification under Section 8 of the Defamation Act 1957, therefore, succeeds in respect of the 2nd impugned statement. In any event, P's claim in respect of this impugned statement fails on the grounds of truth. Issue 3: Whether the impugned statements, if made, are defamatory in their natural and ordinary meaning?

Given the Court's finding that P has failed to prove publication of the 1st, 3rd to 8th impugned statements, it is strictly unnecessary to determine whether those statements are defamatory in their natural and ordinary meaning. Nevertheless, the Court will make the following observations.

As highlighted earlier, the impugned statements must be evaluated as a whole in their context and not in isolation. [See the case of Keluarga Communication (supra)] D2's case is that any communications made to shareholders were in the context of the Company's public announcement, an ongoing internal investigation, and an existing Civil suit in Penang, i.e., all matters of public record. In that context, it is submitted by D2 that statements relating to the existence of the investigation and P's corporate conduct are not automatically defamatory merely because they reflect negatively on P's professional standing. Statements concerning corporate governance and ongoing investigations may form part of legitimate discourse in the investor community.

However, the Court recognises that if the 1st, 3rd, and 4th impugned statements were made in the terms pleaded, specifically, that P forged invoices and inflated prices, such statements would, in their natural and ordinary meaning, clearly be defamatory. A reasonable person hearing that a Company's Executive Chairman was working with contractors to forge invoices would plainly think less of that person in a commercial and moral sense. Similarly, allegations of extra-marital affairs impute moral impropriety and would likely lower P in the estimation of right-thinking members of society.

The Court therefore does not accept D2's submission that the impugned statements, if made, would be inherently neutral or administrative in character. If publication had been successfully established by P, several of the impugned statements would likely have satisfied the test for defamatory content. However, as noted, P's claim fails at the prior and primary hurdle of publication.

As highlighted earlier, it is not disputed that 'DS' refers to 'Dato' Seri' and identifies P. The Court accepts that this element would have been established had the case proceeded on the merits. However, given the failure on publication, this finding does not assist the P.

In light of the Court's finding that publication has not been proven, it is unnecessary to make definitive findings on D2's pleaded defences of justification and fair comment. The Court, however, notes the following for completeness.

As highlighted earlier, the defence of justification is governed under Section 8 of the Defamation Act 1957 where 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 in an action for libel or slander in respect of words containing two or more distinct charges against the Plaintiff.

On the other hand, the defence of fair comment is governed under Section 9 of the Defamation Act 1957. Where a Defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. [See the case of Chong Sweet Huat & Anor (supra)].

As such, the comment must be fair and based on facts as opposed to rumour or belief. The test is to determine whether an utterance is a comment or a statement of fact. Thus, if D2 herein succeeds in proving that the defences can be raised, the burden of proof then shifts back to P to prove the existence of malice to rebut the defences.

On the present facts, it can be seen that D2 called no witnesses and adduced no independent evidence at trial in direct support of his defences. The Court accepts that this is a significant weakness in D2's position and would, had the case turned on the defences, have presented D2 with substantial difficulties. A Defendant who asserts justification bears the burden of proving the substantial truth of the impugned statements, and D2's failure to testify or call witnesses would ordinarily be fatal to such a defence.

Nevertheless, D2's submissions draw the Court's attention to the fact that certain background facts, i.e., the existence of the complaint, the internal investigation, P's garden leave, the SGX announcement, and the ongoing Penang Civil suit, are matters of public record and are not disputed by P. These background facts lend some degree of factual context and substratum to any statements that may have been made in connection with corporate events. To that limited extent, D2's position is not entirely without foundation, even if the specific defamatory imputations (particularly the personal moral allegations) lack any evidential support.

As regards the defence of fair comment, the Court notes that several of the impugned statements, if made, appear to be assertions of fact rather than expressions of opinion. They are accordingly not well-suited to the defence of fair comment, which applies to opinions and evaluative conclusions grounded in true facts.

Given the Court's findings above, the question of quantum of damages does not arise. However, the Court notes in passing that even had liability been established, P's claim for damages faced significant evidential challenges. P adduced no financial statements, no documentary evidence of lost business or income, and no independent corroboration of the alleged damage to his commercial relationships. Beyond PW2's testimony that he and Chan lost confidence in P, no other investors or business associates testified as to the effect of the Statements on their dealings with P. In fact, PW2 himself testified that after he was told that he should sell his shares as something bad was going to happen to the company, he still did not pull out his shares. Whilst P and the investors like PW2 may have lost their investments in the Company, there is no proof of causal link to D2.

In addition, there is no evidence that the impugned statements were widely circulated. As such, at best, the Court would have been constrained to award modest /minimal/nominal general damages only.

The Plaintiff had also sought a permanent injunction to restrain D2 from making further similar statements but has conceded that this no longer applies in the circumstances of this case.

For the foregoing reasons, the Court finds that P has failed to discharge his burden of proof on the essential element of publication. The sole witness called to establish publication, i.e., PW2, gave evidence that was uncertain, imprecise, and insufficient in reliability to satisfy the Court, on a balance of probabilities, that D2 uttered the specific Statements pleaded in the terms alleged. P's own evidence did not corroborate PW2's account. Chan Fook Meng, the other alleged recipient of the Statements, was also not called to testify.

The adverse inference under Section 114(g) EA 1950 arising from D2's failure to testify does not cure this evidential deficiency. The burden of proving publication at all material times remained on P, and in the Court's view, that burden has not been discharged.

In respect of the 2nd impugned statement admitted by D2, i.e., that P was going to be placed on garden leave, this Court finds that D2 has established the defence of justification under Section 8 of the Defamation Act 1957, as P admitted this fact and it was publicly disclosed in the Company's SGX announcement dated $ 29^{th} $ August 2021. The claim in relation to this statement accordingly fails.

P's claim against D2 is therefore dismissed in its entirety.

The Court makes the following orders: i. The Plaintiff's claim against the Second Defendant is hereby dismissed; ii. As for costs, in light of the circumstances of this case, and in particular, D2 did not call any witnesses, I think it is fit that the Court make no order as costs. Date: 3rd June 2026 ANAND PONNUDURAI Judge High Court Kuala Lumpur Counsel(s): Ms. Jamie Wong from Messrs. Jamie Wong for the Plaintiff. Mr. Lim Sze Han and Ms. Muna Farhana Zainuddin from Messrs. Yeoh, Mazlina & Partners for the 2 $ ^{nd} $ Defendant. Case(s) referred to: Chong Swee Huat & Anor v Lim Shian Ghee (t/a L & G Consultants & Education Services [2009] 3 MLJ 665 Ayub Bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315 Kian Lip Construction v Hongkong Bank Malaysia Bhd [2002] 7 MLJ 283 Keluarga Communication v Normala Shamsudin [2006] 2 MLJ 700; [2006] MLJU 40; [2006] 2 AMR 604; [2006] 2 CLJ 46 Tiow Weng Theong v Melawangi Sdn. Bh. [2018] 6 MLJ 761 Jaafar bin Shaari & Anor v Tan Lip Eng & Anor [1997] 3 MLJ 693 Raja Syahrir Bin Abu Bakar & Anor v Manjeet Singh Dhillon And Other Appeals [2019] 4 MLRA 218