Edwin a/l Sither v 1. ) Karunakaran a/l Chatu (WA-21NCvC-61-09/2019)

The Plaintiff (P) is a registered society under the Societies Act 1966 on 15.12.2014:

Edwin Sither was a former member of the First Defendant (D1).

He left D1 and register P as a registered society, but it is not a registered body under sections 15,16 and 25 of the Sports Development Act 1997. 35 21/07/2025 16:56:58

The First Defendant (Taekwondo Selangor: D1), is a body registered on 08.06.2010, and the Second Defendant (Taekwondo Malaysia: D2), is a body registered on 26.08.2010.

Unlike P, D1 and D2 are organisations registered under the Sports Development Act 1997 as required by law.

D1 is a member of D2.

The Third Defendant (D3) is the Federal Minister of Sports.

The Fourth Defendant (D4) is the Federal Commissioner for Sports under the Ministry of Sports.

The Fifth Defendant (D5) is the Government of Malaysia. [2] This case revolves around:

P, D1 and D2 tussle over competing interests in Taekwondo activities in the schools in Selangor and elsewhere:

P made allegations of: Defamation committed by D1, whereby D1 and D2 had allegedly conspired to defame and injure P, and 55

Breach of public duty by D3, D4 and D5 in failing to act in retracting the impugned open letter of 20.03.2018, that allegedly contained adverse content on the position of P as a martial arts body promoting Taekwondo.

By issuing and publishing the alleged defamatory letters to 60 allegedly prevent P from engaging in activities involving Taekwondo (the impugned activities) in schools in Selangor and elsewhere.

P is a registered society that claimed to have received written approval from the Ministry of Education (MOE) (KPM600-6/1/15 65 JLD 19(21): 12.09.2018) to hold the national Taekwondo competition for public schools under the governance of MOE to be held on 17.11.2018. However, I observe that such approval can’t supersede or predominate over the legislative requirements of the Sports 70 Development Act of 1977.

D4, without seeking any clarification from P, on 20.03.2018, issued a letter notifying that since P is not registered with the Pejabat Pesuruhjaya Sukan as required under the Sports 75 Development Act 1997, P will not be allowed to conduct the impugned activities. [3] On 24.04.2025:

After considering the facts, all the cause papers, the evidence adduced at the trial, and the parties' respective arguments, on 80 the balance of probabilities, I found no merit in P’s suit against the Ds.

I accordingly dismissed it with costs.

RM40,000.00 was awarded to D1, RM25,000.00 to D2, and RM25,000.00 to D3, D4, and D5. All costs are to be paid within 85 90 days from the date of this order.

Similarly, I found no merit in D1’s counterclaim against P, and dismissed it with costs of RM10,000.00 to be paid within 90 days from the date of this order.

Aggrieved, only P filed this appeal, and my reasons are as 90 follows: [4] The witnesses at the trial are:

For the Plaintiff (P) PW1: Mohd Rashid Bin Meon PW2: Mohamed Salleh Hussien Bin Abd Ghani 95 PW3: Edwin a/l Sither

For the First Defendant (D1) DW1: Karunakaran a/l Chatu 100

For the Second Defendant (D2) DW2: Rajendran a/l Muthusamy

For the Third, Fourth and Fifth Defendants DW3: Dhanaraj a/l Rassiah 105 DW4: Hasnata Bin Hassan DW5: Abu Zarin Bin Abu Hasan DW6: Zaiton Binti Othman BRIEF FACTS 110 [5] To put this case in its accurate perspective:

Taekwondo: We have to first look at what Taekwondo is. It is a martial art originating from Korea that is recognised for its competitive nature and striking techniques. The question is, is Taekwondo 115 a combat sport?

The Definition of Combat Sports:

Combat sports are typically competitive physical contests between individuals, where tactics involve various 120 techniques, including striking and grappling. These sports often have specific rules designed to ensure the safety of participants while allowing them to showcase their skills and abilities. Examples include boxing, wrestling, and mixed martial arts (MMA).

Taekwondo, with its name translating to "the way of the foot and fist," encompasses various styles, philosophies, and techniques. It emphasises high, fast kicks and dynamic footwork, bringing increased attention to its competitive aspects.

Taekwondo competitions are organised events where practitioners compete in various weight classes and skill levels. These events feature sparring, forms (poomsae), and self-defence competitions.

Taekwondo matches are governed by specific rules 135 designed to protect participants. Points are awarded for controlled and effective strikes, and there are regulations in place to prohibit specific techniques and ensure safety.

In the foregoing circumstances, Taekwondo qualifies as a combat sport due to its competitive structure, striking 140 techniques, and rules governing safety and fairness. Engaging in Taekwondo can lead to numerous benefits, making it a valuable addition to anyone's martial arts journey.

As a combat sport, Taekwondo is listed in the Sports 145 Development Act 1977 under First Schedule (Section 2),

5.1 P’s case:

Fundamentally:

Hinges on the contents of the following letters, which, after the close of the proceedings in Court, I have noticed that counsel did not specifically apply to have those letters referred to, admitted into evidence and marked as exhibits 185 for the Court’s examination and determination, and for it to be part of the judicial records.

The laws of admissibility exist to determine what evidence can be considered in the weighing process, and the importance to be attached to it.

The facts stated in a document are only evidence that they were said and not of the truth of what was stated. The truth of what was stated is a question of weight. Evidence of facts stated in the document can still be considered hearsay evidence, even if admitted into evidence without 195 the testimony of the person who made the statement.

The Court of Appeal in Yeo Ing King v Melawangi Sdn Bhd [2016] 5 MLJ 631, CA observed that in the context of an action for defamation, it does not matter if the defamatory statements 200 are included in Part A, Part B or Part C of the BOD. The truth of the defamatory statements would still have to be established by the party who bears the burden of proving the truth, unless it is agreed between the parties at any stage of the action, including by way of pleadings, that the defamatory statements 205 are true or untrue as the case may be.

The distinction between content and truth assumes particular importance in an action founded on defamation, simply because the nature of the action is such that the truth or 210 otherwise of the statements alleged to be defamatory almost always becomes an issue; hence, the defence of justification, which relies on the truth of the statements as its basis.

I have examined the following letters in their chronological order 215 to evaluate the determinative impact (if any) of their contents on the fate of the present claim as follows:

D1’s letter of complaint against P dated 06.03.2018 to D4: L125, pp. 94-95/PDF pp.97-98:

Highlighting to D4 that though P is a registered society, P is not 220 a registered body under the Sports Development Act 1977 in breach of s.15(1) of the said Act.

(ii) Despite the breach, P continued with Taekwondo activities governed under the said Act.

(iii) P is registered by Edwin Sither, a former member of D1 who 225 had left to form P, to carry out competing activities.

(iv) This confuses the public, schools, and parents.

D1 is a member of D2.

(vi) D1 asked for this matter to be investigated. 230

D1’s letter of complaint against P dated 06.03.2018 to D2: L125, pp. 96-97/PDF pp.99-100:

Highlighting to D2 that though P is a registered society, P is not a registered body with the office of D4 and is carrying out Taekwondo activities in Selangor.

(ii) P is registered by Edwin Sither, a former member of D1 who had left to form P, to carry out competing activities.

(iii) This confuses the public, schools, and parents.

(iv) D1 asked for D2’s assistance to resolve this matter, and that D1 had complained to D4, asking for the matter to be 240 investigated.

D2’s letter of complaint against P dated 06.03.2018 to D4: L155, pg.1/PDF pg.3:

Informing D4 that it received a complaint from D1 against P.

(ii) A copy of D1’s letter was enclosed for D4’s attention.

(iii) Asking for D4 to assist D1 in this issue. D1 is a member of D2.

D4 open letter dated 20.03.2018: L93, pg.27/PDF pg.32:

To whom it may concern.

(ii) Confirming that P is not a registered body under s.15(1) of the Sports Development Act 1977.

(iii) Any sports body not registered is not allowed to carry out activities under s.25(1) until such body is registered.

(iv) Parties are advised that any sporting activities do not 255 contravene the provisions of the Act.

D4 clarification letter dated 23.05.2018 in reply to P’s query: L155, pp.2-3/PDF pp.4-5:

Confirming the factual truth in D4’s open letter dated 260 20.03.2018.

(ii) It confirms the fact that P is not a registered body with D4 as mandated by law.

(iii) D4 confirms that any sports body not registered with D4 is disallowed to carry out the activities governed under the 265 Sports Development Act 1977.

(iv) The contents of the open letter dated 20.03.2018 merely state the truth of the matter and are circulated in good faith for that purpose.

D4 advises P to resolve any abuse of the 20.03.2018 open 270 letter with the respective parties.

D2 letter to Timbalan Ketua Pengarah Pelajaran Malaysia (TKPPM) against P dated 10.10.2018: L125, pp. 94-97/PDF pp.97-98:

D2 asked that TKPPM revoke the written approval (KPM600- 6/1/15 JLD 19(21), 12.09.2018) granted to P to hold the national Taekwondo competition for public schools under the governance of MOE to be held on 17.11.2018.

(ii) Informed TKPPM that D2 is the sole governing Taekwondo 280 body recognised by the World Taekwondo (WT) and the Olympic Council of Malaysia (MOM).

(iii) D2 had received a complaint that P is an unregistered body under the Sports Development Act 1977 and is only registered under the Society Act 1966.

(iv) Section 15(1) & (2) of the Act that required a sporting body to be registered; otherwise, the unregistered body is prohibited from engaging in Taekwondo activities that are governed under the Act

The martial arts activities that P promotes replicate those of 290 the one under D2.

(vi) Under the guise of martial arts or self-defence to obtain approval for registration from the Registrar of Societies in pursuing its registration, P carried out the replication of Taekwondo activities.

(vii) D2 asked that the approval letter be revoked.

D1 letter of objection to Pengarah, Jabatan Pendaftaran Pertubuhan Negeri Selangor (JPPNS) against P dated 07.11.2018: L125, pp.114-115/PDF pp.117-118:

D1 expressed its disappointment with JPPNS’s failure to act on the complaint against P, even though the application of the Sports Development Act 1977 is clear.

(ii) D1 alluded to s.16 of the Sports Development Act 1977 that any sporting bodies registered under the Society Act 1966 305 ceased to be registered upon the coming into force of the Sports Development Act 1977 and must be registered under the latter Act.

(iii) The sport of Taekwondo is governed under the Sports Development Act 1977. Any sporting body (including P) is 310 required to register with the Commissioner of Sports before carrying out Taekwondo activities.

(iv) P is not a body registered under the Sports Development Act 1977.

Consequently, the registration of P under the Society Act 315 1966 should be revoked. None of the foregoing letters that supposedly anchored P’s present action individually or collectively supports the said claim of (i) defamation and conspiracy to injure P by D1 and D2, 320 and (ii) by the same token, they do not support a spurious allegation of a breach of public duty by D3-D5 on P that can (if at all) only be appropriately challenged by Judicial Review under O.53 RC 2012, and not in the present proceeding. The foregoing impugned letter does not contain any of the five 325 adverse connotations (in paragraph [5] above) claimed to have defamed P.

All the foregoing letters relied upon to anchor P’s present case were never admitted into evidence as exhibits at the end of the 330 proceedings since no request was made to the Court for it to be so admitted and marked as exhibits at the close of the proceedings:

It is trite law that when documents tendered through a witness, a litigant or his solicitor must direct the witness to 335 a document listed in the Bundle of Documents (Parts B: authenticity not disputed but the contents are, and C: authenticity and contents are disputed) and thereafter mark that document as an exhibit.

It is not sufficient to think that once a document is marked, 340 there is no necessity to direct the witness to the said document (Lim Lai Seng & Anor v Lim Guat Seng & Anor [2014] 2 AMR 293, HC).

These impugned letters can be taken on record by the court and read in evidence only if relied upon, produced, 345 and exhibited in accordance with the rules and settled principles on evidence.

A document once admitted in evidence, without objection and marked as an exhibit by the court, becomes part of the judicial record.

Such is not the case in the present proceeding, as there is no list of exhibits.

When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion on whether a 355 document has been proved, disproved, or not proved, the court would look not only at the document itself or only at the witness's statement in the box, but also consider the probabilities of the case as emerging from the entire record.

It could not have been the intention of any law, rule, or practice direction to expect the court, applying its judicial mind to the entire record of the case, to examine each document placed before it for exhibition and form an opinion on whether it was proved before marking it as an 365 exhibit.

5.2 It was alleged that D2, together with D1, had conspired to injure P:

By issuing and publishing the impugned supposed defamatory letters to prevent P from engaging in similar activities involving 370 Taekwondo in schools in Selangor (impugned activities).

This is despite P’s supposed claim that it had obtained approval from MOE to carry out such activities. 375 5.3 Supposedly, on the instigation of D1 and D2, D4 without seeking any clarification from P, on 20.03.2018, issued a written notice (To whomsoever it may concern) that since P is not a registered body with the Pejabat Pesuruhjaya Sukan as required under the Sports Development Act 1997, it will not be allowed to carry out the 380 impugned activities.

5.4 D4 failed to retract the impugned open letter, though there was a supposed consensus not to allow D2 to publish it further. 385 5.5 P sought the assistance of the D3 to intervene, but allegedly it was ignored. [6] The Ds took the legal position in their defence that:

6.1 D1 argued:

That the impugned letters contain no such imputations or inferences as alleged by P. The letters merely spelt out that P must be registered under the Sports Development Act 1997 before any Taekwondo activities can be conducted in schools.

In default, such school activities cannot be conducted. The 395 letter does not carry any negative connotations or imputations that are defamatory as claimed by P.

The fundamental legal requirement on the existence of defamatory wording is absent from the present case. The burden lies on P to establish his case, and there is no 400 compelling evidence save for conjectures.

There is no cogent evidence of an agreement to injure P between D1 and D2 save for bare assertions.

The action taken by D4 is not a consequence of any instigation by D1 and D2. There is no compelling evidence that it was so. 405 Issues raised are valid and perfectly justified:

P is not registered under the Sports Development Act

The activities proposed by P are governed under the said Act.

Sporting activities such as the one proposed in Selangor 410 schools come under the Act's purview.

The office of the DG of Education issued a circular (02.04.1997) stating that only registered bodies are eligible to participate.

The impasse could have been resolved if P had 415 registered itself as the Act requires.

D1 made the following counterclaim: (briefly):

A declaration is granted that P is a sports body under the governance of section 2, Sports Development Act 420 1997.

(ii) The training of Taekwondo by P is a sport covered under section 2 of the Act to be conducted in schools.

(iii) An injunction is granted to restrain P from carrying out any Taekwondo activities as long as it is not registered 425 under the Act.

6.2 D2 in its arguments:

Refer to the Federal Court’s observation in Lim Lip Eng v Ong Ka Chuan (as a public officer of Malaysian Chinese 430 Association) [2022] 4 MLJ 454, that a registered society (unincorporated in contrast to a company) unlike in Singapore (where the statute allows for it) has no separate entity/existence from its members and therefore cannot sue in defamation.

Therefore, P's action on defamation (injury to reputation) is unsustainable.

It is trite law that a Judicial Review must be taken on any purported action for breach of public duties for D3, D4, and D5 under O.53 RC 2012. This writ action on breach of statutory 440 duties would not be sustainable against D3-D5.

PW1: Mohd Rashid Bin Meon, in his evidence, agreed that there is no conspiracy to injure P between D1 and D2. The basis of this claim must, in the circumstances, fail. 445 6.3 D3, D4, and D5 argued that:

In issuing the impugned letter (20.03.2018), D4 acted under qualified privilege.

The contents of that impugned letter are protected under qualified privilege and justification.

It is trite law that P cannot sustain a defamatory action against D3, D4, and D5.

It is also trite law that any action on a supposed breach of duty by D3 and D4 must be taken under O.53 RC 2012 (Judicial Review) seeking specific remedies and not by this writ action.

P failed to discharge its burden when no cogent evidence was provided to satisfy the four tests necessary to establish civil liability for purported breach of statutory duty: Hu Sepang v Inspector Keong On Eng & Ors 2 CLJ 999, HC.

P failed to plead a specific statute to support the claim for 460 breach of statutory duty. [6] PARTIES SUBMISSIONS I have duly observed and considered the parties' arguments and in a nutshell as follows: 465 THE PLAINTIFF (P) [7] In canvassing for the present claim, P argued:

7.1

In its arguments, P alleges that the Ds published false and defamatory statements in various letters, including those 470 addressed to government agencies, which allegedly damaged P's reputation in the Taekwondo community and among schools and parents.

D1 and D2 had conspired to defame and injure P by issuing and disseminating the impugned allegedly defamatory letters, 475 causing supposed reputational harm. They had conspired to harm P's business and reputation by spreading false claims and attempting to revoke P’s registration with the Registrar of Societies (ROS):

P submitted that D1 and D2 conspired to harm and defame 480 through coordinated actions, including issuing defamatory letters and taking steps to undermine the P's reputation and operations, which include:

They issued multiple allegedly defamatory letters, including those addressed to government agencies such as the Ministry 485 of Education, Registrar of Societies (ROS), and others.

(ii) These letters falsely claimed that the Plaintiff was not legally registered and lacked credibility to conduct Taekwondo activities.

(iii) The impugned letters were disseminated widely, including to 490 schools, government agencies, and WhatsApp groups, with the intent to harm P.

They held meetings with government officials, including the D4, to discuss complaints against P leading to the issuance of the impugned open letter dated 20.03.2018, 495 which was later allegedly misused to harm P:

D4 issued the letter dated 20.03.2018, which was addressed "To Whom It May Concern", which allegedly contained misleading information about the P's registration status.

(ii) D4 failed to conduct proper investigations and acted beyond 500 their statutory authority under the Sports Development Act 1997.

(iii) Despite multiple complaints from P about the misuse of the letter, D4 failed to take corrective action or withdraw the letter.

On 15.10.2018, D1, with D2’s approval, met with officials 505 from the MOE to demand the revocation of P's permission to conduct Taekwondo activities in the public schools.

They attempted to revoke P's registration with the Registrar of Societies (ROS) by writing to the ROS on 07.11.2018, demanding that the Plaintiff's registration be 510 cancelled.

They had misused the impugned 20.03.2018 letter issued by D4 to spread false claims, including allegations that the P was not legally registered and posed a safety risk to students.

This had damaged P’s reputation and credibility in the Taekwondo community.

7.2 P strongly took the position that the alleged defamatory letters claiming that P was not legally registered and lacked credibility to conduct Taekwondo activities hurt P’s business and reputation. The 520 claims made in those impugned statements that P was not registered under the Sports Development Act 1997 and was therefore unfit to teach Taekwondo defamed and hurt the reputation of P in the Taekwondo community, causing financial loss to P's business. 525

7.3 P claimed that the allegedly defamatory statements supposedly lowered their standing in the Taekwondo community and caused financial losses due to reduced student enrolment and instructor resignations. P presented testimonies from its witnesses, PW1 (Haji 530 Mohd Rashid bin Mean) and PW2 (Mohamed Saleh Hussein bin Abd Ghani), who confirmed the negative impact of the Ds' actions on P's reputation and operations.

7.4 P argued:

That his Taekwondo system is distinct and not a replica of D2’s format, and he has every right to pursue his format as claimed.

P took a contrary position to that of the Ds that an association has the legal capacity to sue for defamation of its reputation. 540 7.5 P is registered under the Societies Act 1966, not the Sports Development Act, and operates Taekwondo activities in schools under the Ministry of Education Malaysia (MOE/KPM):

P asserted that Taekwondo is not recognised as a sport in schools under the Education Act and related regulations. 545 Therefore, P activities in schools are legitimate and do not require registration under the Sports Development Act 1977.

P challenges the authority of D4 to issue the impugned open letter dated 20.03.2018, claiming it was outside their statutory jurisdiction since the P is not a sports body under the Sports 550 Development Act.

P claimed to have discharged his burden to establish the present action, while D3-D5 failed to meet their burden in proving their defence.

P questions the credibility of D4's witness (SDW6), who was 555 unable to allegedly provide clear answers to material questions and lacked knowledge of relevant regulations. SDW6 admitted to not conducting proper investigations into complaints against P and lacked knowledge of key regulations, including the 2009 Minister of Education rules and the status of Taekwondo in 560 schools.

D3 and D4 breached their statutory duties by issuing and failing to retract the open letter.

7.6 P challenges Ds’ justification for their actions, asserting that they acted with malice and without legal authority, and references 565 various documents, including letters from the MOE and the ROS, to demonstrate their association's legitimacy and Ds' malicious intent.

7.7 P argues Ds failed to establish valid defences, such as privilege or justification, for their actions that had allegedly acted beyond their legal authority and with the intent to harm his reputation. 570 In the circumstances, P prays for order in terms of its prayers and D1’s counterclaims against P be dismissed with costs. THE FIRST DEFENDANT (D1) 575 [8] In opposing P’s claim, D1 argued that:

8.1 The impugned letters were issued in good faith to ensure compliance with legal requirements, such as registration under the Sports Development Act 1997 for Taekwondo activities.

8.2 P is an organisation that is not registered under the relevant sports 580 laws and lacks the authority to organise Taekwondo events. D1 claims that P failed to provide sufficient evidence of damages or harm caused by the letters.

8.3 D1 argued that its actions with D2 were lawful and aimed at ensuring compliance with regulations, not to harm P. The legal burden on P 585 is to establish their case for defamation, conspiracy to injure, and damages. It is not for the Ds to disprove P’s case.

8.4 P’s argument that Taekwondo is not a recognised sporting activity which runs against the Sports Development Act 1977. The 590 supposed recognition of P by international organisations, such as Kukkiwon, is irrelevant to the present case, which is anchored on defamation, conspiracy to injure, and breach of statutory duty by D3- D5. All other arguments are entirely irrelevant to the subject matter of this suit. 595 In the circumstances, D1 asks that P’s claim be dismissed with costs, and the counterclaim be allowed. THE SECOND DEFENDANT (D2) 600 [9] In opposing P’s action, D2 argued:

9.1 P’s defamation claim is invalid because Malaysian law (unlike Singapore) does not allow registered societies to sue for defamation. Only individual members can sue in their personal capacity. The Society Act 1966 does not confer a separate and 605 distinct entity on a registered society from its members, in contrast to the Companies Act of 1965/2016. A registered society can only sue and be sued in the name of its office bearers or the registered Public Officer. 610 9.2 Therefore, since the defamation claim is invalid, the conspiracy to defame must also fail, citing in support the Federal Court observation in Lim Lip Eng v Ong Ka Chuan (as a public officer of a society registered as Malaysian Chinese Association) [2022] 4 MLJ 454, FC. It was mentioned that:

That in the Singapore Court of Appeal decision of Chen Cheng & Anor v Central Christian Church and another appeal [1996] 1 SLR 313, an unincorporated association registered under its Societies Act (Ch 311) has sufficient personality to sue and be sued for defamation, because s 35(b) of their Societies 620 Act provides that every such society may sue or be sued in the name in which it is registered.

In contrast, our s 9(c) of Act 335 provides explicitly that the rights of the society are through the members or office-bearers of the society.

Since the respondent has no existence separate from its members, it cannot assert or claim any reputation.

In the law of defamation, the absence of this most essential element is sufficient to bar the claim from proceeding any further. 630 9.3 Therefore, D2 alluded the Court to paragraphs 1, 15, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the Amended Statement of Claim (L.44), where the position is clear that the society brought this action for defamation and in light of the legal position above, the claim is untenable.

9.4 In the circumstances, this action by P lacks the requisite legal foundation to stand on:

P's claims against D3 and D4 are not supported by proper pleadings and seeking declarations and injunctions.

It is a trite law that an injunction of any nature does not lie against the government. Section 29 of the Government Proceedings Act 1956 (formerly an ordinance) outlines specific restrictions on the types of orders a Court can issue against the government in civil proceedings. Specifically:

It prohibits the court from ordering the recovery of land or the delivery of property but allows for the declaration of the aggrieved party's entitlement to the land or property.

Additionally, the Act restricts the granting of injunctions or specific performance against the government, or its 650 officers (that in effect indirectly injunct the government).

9.5 P’s allegation of a conspiracy between D1 and D2 to injure, beginning with a meeting on 20.03.2018 at D4’s office, is hardly sustainable. P’s witness (PW-1) admitted during cross-examination 655 that D2’s actions in consulting D4 were not part of a conspiracy. P failed to discharge his burden on the allegation of a conspiracy.

9.6 D2’s position is that P organised Taekwondo activities replicating the World Taekwondo (WT) format, which D2 is exclusively authorised to conduct in Malaysia:

Although P claimed to use the Kukkiwon syllabus for Hanmadang events, evidence showed that P's events followed WT rules rather than Hanmadang rules.

D1 and D2 had acted responsibly by consulting the D4 to address this issue.

D4 (DW6) testified that informing schools about the letter (the impugned 20.3.2018, open letter) was not a misuse, as schools are required to verify the approval of martial arts activities under the Ministry of Education guidelines. 670 In the circumstances, D2 prays that P’s claim is dismissed with costs. THE THIRD (D3), FOURTH (D4) AND FIFTH (D5) DEFENDANTS [10] In opposing the P’s claim, D3-D5 argued that:

10.1 The crux of P’s allegations against D3-D5 is that:

The impugned open letter dated 20.3.2018 issued by D4 was improper, as it was issued without discussion or consultation with P on his version of the facts.

P is registered under the Societies Act 1966 (Act 832) and not under the Sports Development Act 1997 (Act 576), making P 680 not subject to D4’s jurisdiction.

The impugned open letter was misused by D1 and D2, who had allegedly harmed P, and sought a Court order to declare the impugned open letter as null and void, and a further Order to compel D4 to withdraw the impugned letter within 7 working 685 days, or an order for D3 to direct D4 to withdraw the letter.

10.2 P had confirmed during court proceedings on 31.01.2023 that no defamation claim is being pursued against D3-D4. However, what is being sought is the purported breach of statutory duty under the 690 Sports Development Act 1977.

10.3 The impugned open letter dated 20.03.2018 was issued in good faith and under qualified privilege to address complaints received from D1 and D2. It was argued that D4 had neither authorised nor 695 controlled the dissemination of the impugned open letter by D1 and D2. The open letter in question was intended for D1 and D2.

10.4 Contrary to claims that P was registered with the Ministry of Youth and Sports (KBS), it was negated when it was pointed out that the 700 registration was only related to the "Program Anugerah Perdana Rakan Muda," not sports programs under KBS.

10.5 It is trite law:

To challenge any administrative action, it is always by judicial 705 review under Order 53 RC 2012 instead of a writ summons as in the present action: Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, FC.

The gist of P’s action against D3-D5 is grounded on the 710 purported breach of statutory duties under the Sports Development Act of 1977.

D3-D5 pointed out that P failed to plead specific breaches of statutory duties in their amended statement of claim. 715 In the circumstances, D3-D5 asserted that P failed to establish an apparent cause of action against the Ds. In failing to meet the burden of proof against D3-D5, P’s claim must be dismissed with costs. THE LAW 720 [11] The burden of Proof:

It is trite in law that all cases are decided on the legal burden of proof being discharged. The burden of proof in establishing its case is on the plaintiff. It is not the defendant's duty to disprove it. The evidentiary burden is trite that those who 725 allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). In Selvaduray v Chinniah [1939] 1 MLJ 253, 254, the CA held: "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, 730 and accordingly, the plaintiff must establish his case. If he fails to do so, it will not avail him to turn around and say that the defendant has not established his. The defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 735

In Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, (FC) held: "It was all a matter of proof, and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant, and no matter if the defendant's 740 case was completely unbelievable, the claim against him must in these circumstances be dismissed. With respect, we agree with this judicial approach." [12] A defamatory statement:

Is a statement which tends to lower a person in the estimation of right-thinking members of society generally or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule (see Ummi Hafilda Bte Ali v Ketua Setiausaha Parti Islam (PAS) [2006] 4 MLJ 761).

The Federal Court in Raub Australia Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 721, FC observed that it is a question of law in construing the impugned statement as being defamatory or otherwise. It requires an objective test to determine whether:

The imputation in the statement would lower the plaintiff in the estimation of right-thinking members of society generally (reasonable men),

The imputation would tend to cause others to shun or avoid the plaintiff, and 760

Would the words tend to expose the plaintiff to hatred, contempt, or ridicule?

An objective test to determine whether, under the circumstances in which the words were published, 765 reasonable men to whom the publication was made would likely understand it in a defamatory or libellous sense: Allied Physics Sdn Bhd v Ketua Audit Negara (Malaysia) & Anor and Other Appeals [2016] 7 CLJ 347, CA.

What may lead to a tendency to lower a person’s reputation 770 in the eyes of the public depends largely on the facts and circumstances in each case.

Mere hurt feelings are insufficient for the award of damages under defamation. The interest in being protected by this tort is a person’s good name and reputation. The law on 775 defamation in Malaysia is primarily anchored in English common law principles, except as modified by the Act, which is in pari materia with the English Defamation Act 1952 (see Soh Chun Seng v CTOS-EMR Sdn Bhd [2004] 5 CLJ 46).

Defamation is committed when the defendant publishes 780 words or matters containing untrue imputations against the plaintiff's reputation to a third person.

Liability for defamation is divided into two categories: libel and slander. If the publication is made in a permanent form, broadcast, or part of a theatrical performance, it is libel. It is 785 slander if it is in some transient state or is conveyed by spoken words or gestures. 790 [13] The civil law of defamation is primarily based on case law:

Although the Act does not define defamatory matters, it has given some well-known common law principles statutory force. Libel, or published defamation, such as a newspaper 795 article, a television broadcast, pictures, and words, can be defamatory (Civil Trial Guidebook by Marsden Law Books). In Kian Lup Construction v Hongkong Bank Malaysia Berhad [2002] 7 CLJ 32, Ramly Ali J (at that time) said: “In a tort of defamation, the plaintiff must prove three elements, namely 800 the statement must bear defamatory imputations, must refer to the plaintiff’s reputation and must have been published to a third person by the defendant”.

In Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan Bin 805 Hamzah & Ors [1995] 1 MLJ 39, HC, it was held:

It is a question of law for the court to decide whether the natural and ordinary meaning of the words used could convey a defamatory meaning of and concerning the 810 plaintiff.

Libel does not depend on the intention of the defamer. It was irrelevant to consider the meaning the writer and publisher intended to convey on defamation.

The question is to be determined by an objective test.

The plaintiff must prove the following:

The statement was defamatory.

It referred to him and

It was published and communicated to a third party.

Once proven, the burden then shifted to the defendants to prove any of the defences: 825

Justification or, in other words, the truth of the utterance.

Fair comment on a matter of public interest or

That it was made on a privileged occasion. [14] Justification:

Section 8 of the Defamation Act 1957: “In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation regarding 835 the truth of the remaining charge.”

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 840 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.

All that is needed to be established is that the impugned 845 defamatory statements are true or substantially true (see Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242).

Justification is a complete defence against defamation. 850 [15] Fair Comment:

Section 9 of the Defamation Act 1957: “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 855 fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.” 860

Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 75, HC reiterates the applicable elements:

The words complained of are comments.

The comments are on a matter of public interest or where 865 they will affect the public so that they may be legitimately interested in it.

The comments are based on facts and

The comments are ones that a fair-minded person can honestly make based on the facts.

In fair comment, if the primary facts are true, in the absence of malice and falsehood, fair comment should succeed: Mohd Rafizi bin Ramli v Dato Sri Dr Mohamad Salleh bin Ismail & Anor [2019] 6 MLJ 587, CA. 875 [16] Qualified Privilege:

Qualified privilege is a defence:

Where the impugned statements were published under a discharge of legal, social, or moral duty with no ill will or 880 malicious intent.

The recipient of the statements had a corresponding interest in receiving them.

The impugned statements constitute fair comments and are covered under qualified privilege.

To discover whether such a duty exists, the following question serves as a good test:

“Would the great mass of right-minded men in the position of the defendant have considered it their duty under the 890 circumstances to make the communication?”

In Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75, HC, observed that statements made on a subject matter in which both the defendant and the persons to whom the statements are made have had a 895 legitimate common interest come under one of the classes of statements published on the occasion of qualified privilege. FINDINGS OF THIS COURT 900 [17] I have examined all the cause papers, the evidence presented at the trial, and the parties' submissions in support of their positions. Considering the totality of the evidence and my observations in particular in paragraphs [5]-[6] above, it is my finding that P has failed to establish the required burden of proof for the claim against 905 the Ds.

17.1 It is trite in law that the burden of proof in establishing its case is on the Ps. It is not the Ds' duty to disprove it. The evidentiary burden is that those who allege a fact are duty-bound to prove it (see s.101, 910 102, and 103 of the Evidence Act 1950):

17.2 P failed to discharge his burden to establish the present claim, and I take his evidence with an abundance of caution, and stand unpersuaded by his arguments:

First and foremost:

P is not clothed with the requisite legal authority to sustain a defamatory action: The Federal Court’s observation in Lim Lip Eng v Ong Ka Chuan (as a public officer of 920 Malaysian Chinese Association) [2022] 4 MLJ 454, FC.

This ground alone is sufficient to dismiss the entire case on defamation and conspiracy to defame P against D1 and D2. To date, the position remains unchanged in the Society Act 1966.

Second:

It is a trite law that action against D3-D5 on allegations of breach of public duty must be taken under O.53 RC 2012 by way of judicial review and not by a writ action: Ahmad 930 Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, FC.

This ground alone is sufficient to dismiss the entire claim against D3-D5 for supposed breach of public duty.

As rightly pointed out by the SFC, the gist of P’s action against D3-D5 is grounded on the purported breach of statutory duties under the Sports Development Act of 1977. However, not only did P fail to plead the specific statutory duties that were to be addressed in their amended 940 statement of claim, but there is also no compelling evidence to establish this allegation.

Third:

For completeness, in my considered determination, P did 945 not satisfy the essential elements of the tort of defamation: Abu Hassan Hasbullah v Zukeri Ibrahim [2018] 3 CLJ 726, CA: The contents of the impugned letters that constitute the foundation of P’s claim in the present suit are not defamatory as I had observed in paragraph [5] above. 950

What appears to be defamatory is only the slanted interpretation of the open/impugned letters by P, reading into them the alleged five adverse imputations or connotations as listed down in paragraphs [5]-[6] above that are not there on the plain reading of those letters.

In construing the impugned statement, it is necessary to consider the actual words used and the context in which it was issued, whether it was libellous, and premised on the facts of this case. Looking at the background and complete facts of the present case, statements are undoubtedly not 960 defamatory

In this regard, I am guided by the observation of the Federal Court in Raub Australia Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 721, FC that it is a question of law in construing the impugned statement as being 965 defamatory or otherwise. It requires an objective test to determine whether (i) the impugned imputation would lower the plaintiff in the estimation of right-thinking members of the public, (ii) would it cause the plaintiff to be shunned or avoided, and (iii) would it expose the plaintiff to 970 hatred or contempt.

I am also guided by the High Court’s determination in Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan Bin Hamzah & Ors [1995] 1 MLJ 39, HC, that it is a question of law for the court to decide whether the natural and 975 ordinary meaning of the words used could convey a defamatory meaning of and concerning the plaintiff.

In light of the foregoing guiding legal principles, it is my considered judgment that P failed to establish that the contents of the open letter/impugned letters were 980 defamatory, though they referred to P and were published to third parties. Having failed to establish the required burden of proof, the burden did not shift to the Ds to establish their defences that are available under defamation.

P referred to the open/impugned letters described in paragraph 5 above, where, right up to the conclusion of the trial, by P’s omission, had not been appropriately led into evidence for admission and to be marked as exhibits for determination by the Court. None of the documents in the 990 bundles referred to were appropriately led into evidence, admitted and marked as required by the rules and the Evidence Act 1950 (concerning the admissibility of documentary evidence in civil cases). 995 [18] I am also guided by:

18.1 The Court of Appeal:

In Keluarga Communication v Normala Samsudin [2006] 2 CLJ 46, CA, it was observed that the test to be applied when considering whether a plaintiff's statement is defamatory is well 1000 settled in that it is an objective one that must be given a meaning a reasonable man would understand. In considering whether the words complained of contained any defamatory imputation, it is necessary to consider the whole article.

This principle was cited in the Court of Appeal’s decision in 1005 Synergy Promenade Sdn Bhd v Datuk Seri Hj. Razali Hj Ibrahim [2021] 8 CLJ 891, CA.

18.2 In my observation in this present proceeding, the subject matter of this suit is defamation, conspiracy to defame and injure, and breach 1010 of statutory duty. However, the bulk of P’s arguments are irrelevant to the present claim as they relate to matters outside the ambit of the claim. These peripheral arguments of the P's are a distraction and entirely irrelevant to the subject matter of this suit. 1015 CONCLUSION [19] All things considered, for the reasons stated above and on the balance of probabilities I find that P has failed to prove its case, and it is dismissed with costs, RM40,000.00 was awarded to D1, RM25,000.00 to D2, and RM25,000.00 to D3, D4, and D5. All costs 1020 are to be paid within 90 days from the date of this order. I too find there is no merit in D1’s Counterclaim against P and it is dismissed with a cost of RM10,000.00 to be paid within 90 days from today. 1025 Dated 18.07.2025 HAYATUL AKMAL ABDUL AZIZ 1030 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 1035 For the Plaintiff: N. Sivanesan together with Logesh Siva, Betty Lim Yi Xuan (PDK) and Haritram (PDK) bagi pihak Plaintif 1040 Messrs. Siva Nada & Associates For the First Defendant: Wajdi Mohamad, together with Hajar Mardhiah binti Ibrahim 1045 Messrs. Wajdi Mohamad Yusri & Company For the Second Defendant: Puthan Perumal Messrs. N Suseela Devi & Co. 1050 For the Third to Fifth Defendants: Zetty Zurina binti Kamaruddin, together with Fariza Amira bt Azman 1055 Senior Federal Counsel/Federal Counsel Attorney-General’s Chambers 1060

In the premise, the foregoing facts positioned the Sports Development Act 1977 in its appropriate perspective vis-à- vis the present dispute between the parties, in particular 155 sections 15 (1) & (2), 16, The First Schedule (section 2), and section 25 (1) (2) & (3).

Therefore, in light of the above, any particular body that promotes and organises Taekwondo activities (including competition at state and national level) in schools or 160 elsewhere cannot circumvent the legal requirements of the Sports Development Act of 1977 by using the Society Act 1966 for its registration purpose, especially with the coming into force of the Sports Development Act 1977 on 01.01.1998.

Now, coming to the present case, it revolves around P’s allegations of defamation by D1, who in its defence claims qualified privilege in publishing the supposed defamatory letters to statutory bodies and/or government agencies that P alleged 170 to have supposed adverse imputations on P’s reputation and public image as follows:

P is not qualified to teach Taekwondo.

P is not trustworthy in teaching Taekwondo.

P is not a lawful society for teaching Taekwondo.

P will expose students to potential injury.

P and his members are not credible instructors of Taekwondo.