Hanisal Khadijah Binti Abdullah v Raja Azlinda Binti Raja Nari (AB-12BNCvC-6-01/2023)

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ZARINA JAN BINTI MIRAJAB KHAN YASMIN BINTI MIRAJAB KHAN …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI TAIPING DALAM NEGERI PERAK DARUL RIDZUAN GUAMAN SIVIL NO: AB-B53F-1-01/2020) ANTARA HANISAL KHADIJAH BINTI ABDULLAH …PLAINTIF

YASMIN BINTI MIRAJAB KHAN …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT 05/05/2024 15:56:28 AB-12BNCvC-6-01/2023 Kand. 23 S/N /ryfmSxvcUOgZOVgdgMpuQ INTRODUCTION [1] The parties will be referred to as they were at the Sessions Court i.e. P, D1, D2 and D3, respectively since the Plaintiff and Defendants have appealed and cross-appealed against the whole decision of the Sessions Court Judge (SCJ) delivered on 6.1.2023. The SCJ had since retired and unfortunately, she did not prepare a written grounds of judgment of her decision. Therefore, this Court did not have the benefit of assessing the rationale of the SCJ in a proper written grounds of judgment but had only the records of appeal and broad grounds as per the Notes of Evidence on 6.1.2023 (refer to pages 408-425 of the Rekod Rayuan Tambahan 2 (RRT2)). [2] There were 2 appeals filed separately to the High Court and they were Civil Appeal No. AB-12BNCVC-5-01/2023 and AB-12BNCVC-6- 01/2023. In short, they will be referred to as Appeal No. 5 and Appeal No. 6, respectively. Appeal No. 5 was filed by D2 and D3 whereas Appeal No. 6 was filed by the P. At the end of the trial, the SCJ decided as follows: “1. Tuntutan Plaintif terhadap Defendan Pertama ditolak dengan kos RM10,000.00;

Tuntutan Plaintif terhadap Defendan Kedua dan Ketiga dibenarkan dengan kos sebanyak RM10,000.00 untuk dibayar oleh Defendan Kedua dan Defendan Ketiga;

Defendan Kedua dan Defendan Ketiga diarahkan untuk dipampaskan denga sejumlah RM10,000.00 dibayar kepada Plaintif yang dipertanggungjawabkan secara bersesama dan S/N /ryfmSxvcUOgZOVgdgMpuQ berasingan atas siaran dan ulasan negative di ‘Facebook’ dan aplikasi WhatsApp mengenai Plaintif;

Defendan Kedua dan Defendan Ketiga hendaklah membuat permohonan maaf secara rasmi dan penjelasan di dalam Facebook milik masing-masing yang mana status tersebut adalah untuk paparan umum di mana kandungan kenyataan permohonan maaf tersebut hendaklah disemak dan idahkan oleh Plaintif terlebih dahulu;

Faedah pada kadar 5% setahun ke atas gantirugi yang diawardkan dari tarikh penghakiman sehingga penyelesaian penuh;

Tuntutan kos oleh Plaintif terhadap penarikan balik tuntutan balas oleh Defendan Kedua dan Defendan Ketiga tidak dibenarkan.”. [3] Earlier, there was an application in Encl. 5 by D2 and D3 for extension of time to file the Rekod Rayuan due to the fact that their solicitors had unintentionally overlooked the deadline and breached it by 3 days. On 25.5.2023, the Court heard the application and allowed it and then directions were given for filing of the additional records of appeals and written submissions. The appeals were heard together on 10.11.2023 and 24.11.2023. The Court adjourned the cases and judgment was delivered on 30.1.2024 where this Court found that the SCJ had erred when she dismissed the P’s claims against D1 with costs. The Court allowed the appeal by the P (Appeal No.6) against all 3 defendants with S/N /ryfmSxvcUOgZOVgdgMpuQ costs and the appeal by D2 and D3 (Appeal No. 5) was dismissed with no order as to costs. [4] Specifically, the Court ordered that: i. D1 to pay general damages of RM25,000 and costs of RM10,000 to P; ii. in regard to the general damages of RM10,000 to be paid by D2 and D3 jointly to the P, the Court substituted the amount with RM30,000 against D2 and costs of RM10,000 to be paid to the P and RM20,000 against D3 and costs of RM5,000 to be paid to the P; iii. in regard to the claim for special damages where the SCJ dismissed it, the Court allowed the amount of RM56,400.00 in special damages as the P was able to justify the amount in relation to the loss of income from cancellations of course attendance; iv. additionally, the special damages were to be shared equally among the 3 defendants to be paid to the P; v. the Court allowed costs of RM5,000 to be shared equally between D2 and D3 to be paid to the P for withdrawal of the counterclaim by D2 and D3 against the P after the trial has commenced and P had finished giving her evidence; vi. the Court further ordered that the costs allowed are to cover the "costs here and below" subject to allocateur to be paid forthwith to the P. [5] Pursuant thereto, D1 as well as D2 and D3 have filed Notices of Appeal to the Court of Appeal on 28.2.2024. The Court now gives its reasons for making the orders aforesaid. S/N /ryfmSxvcUOgZOVgdgMpuQ FACTS OF THE CASE [6] The P and D2 were business partners at UBS Training & Consultancy in Kamunting, Taiping (“the Company”). The P held the position of Managing Director, D1 was the Marketing Head and D2 was the Chief Director of the Company. D3 held the position of Kindergarten Supervisor for Taska Graduan Mukmin owned by D2 whereby D2 and D3 were siblings. The business of the Company was in conducting personal development courses, career development programmes, seminars, talks and co-ordinating programmes relating to early childhood education known as “Kursus Asuhan dan Didikan Awal Kanak-Kanak Permata” or better known as “Kursus Asuhan Permata” (KAP). The business was actively promoted in Facebook and WhatsApp particularly in regard to its activities, courses and course-schedules. [7] Some time in May 2017, the P, D1 and D2 had consolidated their telephone numbers/accounts under one CELCOM WEBE account which was then registered under the P’s name. This was done for the business but they each continued to pay their telephone bills separately. [8] There was a WhatsApp group for KAP established since 7.10.2017 among participants and it was named “KAP-TAIPING 2018”. The P, D1 and D2 were members of this WhatsApp group. Meanwhile, D3 was a member of the WhatsApp group called “Pengusaha Taska PTP”. [9] On 11.5.2018, the P was informed that a new WhatsApp group “KAP TAIPING” (“the said Group”) had been established and she believed it was set up by D1 where the P was not included in the said Group. The P came to know about the said Group when she was asked by some people why S/N /ryfmSxvcUOgZOVgdgMpuQ it was established and they asked to be included as members of the said Group. That afternoon at 4.12pm, the P tried to ask D2 via personal WhatsApp message about the status of the said Group but the latter did not reply. Since she did not have any knowledge about the said Group and it involved courses and participants, on the same day that evening, the P went to the CELCOM office in Kamunting to block the telephone numbers used by D1 (012-9847971) and D2 (012-4379639) and obtained new SIM cards for the P to keep. [10] Subsequently, D1 and D2 upon finding out that their telephone numbers had been blocked by the P, on 12.5.2018 and 13.5.2018 had uploaded statements/status in Facebook and WhatsApp (collectively referred to as “the said defamatory statements”), allegedly defamatory as to the P’s reputation, actions and character. D1, D2 and D3’s Facebook and WhatsApp profile name were Yong Linda, Zarina Jan and Yasmin Ashraf, respectively. The said defamatory statements made were: S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ S/N /ryfmSxvcUOgZOVgdgMpuQ [11] It is undeniable from the exhibited Facebook and WhatsApp postings, the statements uploaded by D1 and D2 had been viewed and received responses from many individuals whom were associated with the defendants, the Company and the P. Pursuant thereto, the P lodged a police report at Balai Polis Taiping on 14.5.2018 because the postings had tarnished her name and reputation personally as well as the Managing Director of the Company. The P claimed that the defamatory postings by the defendants were untrue and had been widely disseminated to the public, giving rise to a cause of action in defamation, since she had been portrayed as dishonest and irresponsible by the use of words such as “mencuri”, “ambil tanpa izin”, “aniaya” and “disalahgunakan”. ISSUES IN THE APPEALS [12] It is trite law that an appellate court would be slow to disturb the findings of the trial court unless there have been substantial misdirection of facts or law which merited appellate intervention. The appellate court will determine whether or not the trial court arrived at its decision or finding correctly on the basis of the relevant law and the evidence adduced. It will examine the process of evaluation of the evidence by the trial court. A decision arrived at by a trial court without or insufficient judicial appreciation of the evidence may be set aside on appeal. This is consistent with the established “plainly wrong” test: Gan Yook Chin & Ors v Lee Ing Chin & Ors [2004] CLJ 309 (FC). In these appeals, as stated earlier there was only some broad grounds by the SCJ when the decision was read out in open court. [13] The Court is also mindful that the SCJ as the trier of fact would have had the benefit and advantage of seeing and hearing the witnesses and the opportunity to assess their demeanour: Rasidin Bin Partojo v S/N /ryfmSxvcUOgZOVgdgMpuQ Frederick Kiai [1976] 2 MLJ 214. However, in the instant case, in reversing partly the decisions on liability and varying the amount of damages awarded, I found there was judicial misappreciation of the facts, particularly in regard to the liability of D1. I had interfered with the factual findings of the trial judge because it was “plainly wrong” in the sense that it could not reasonably be explained or justified and one which no reasonable judge could have reached: Tengku Dato Ibrahim Petra Tengku Indra Petra v Petra Perdana Berhad & Anor Appeal [2018] 2 CLJ 641. [14] Before I go to the issues in the appeals, it is pertinent to address this preliminary point first in regard to the use of social media. Two platforms of the social media, namely, Facebook and WhatsApp were used by the defendants in this case in response to the P’s actions of blocking the telephone numbers of D1 and D2. Wikipedia defines social media as “interactive technologies that facilitate the creation, sharing and aggregation of content, ideas, interests and other forms of expression through virtual communities and networks. Social media refer to new forms of media that involve interactive participation.”. This Court opines that it may take judicial notice of the workings of the social media in order to appreciate the evidence adduced by the parties. [15] There are pros and cons of the social media but it cannot be denied that generally, it is a very useful and fast method of communication in this digital era. The real time response is arguably its most important feature. Everyone who is a user of WhatsApp would know how the broadcasting of messages in groups are transmitted. The postings would be limited only to the members of the group. It is common knowledge that the number of participants in a group can be up to 200+ during the material time in 2018. S/N /ryfmSxvcUOgZOVgdgMpuQ For Facebook postings, it depends on whether the person broadcasting the message have set it to private or public viewing. Private means only the user, or a selected number of people such as “friends only” would be able to see it. But a public setting means the postings in the Facebook would be available for the whole world to see, even those who are not “friends” of the user. [16] The parties in their written submissions in these appeals had reproduced the alleged defamatory words in ‘Word’ format. Here I have reproduced them in picture format for ease of reference and from the above, the responses or reactions of the public such as the number of “Likes” and “Comments” could be more easily seen, understood and “felt”. [17] The issues in the P’s appeal may be consolidated and narrowed down to the following: i. that the SCJ had erred in dismissing the P’s claims against D1 with costs; ii. that the SCJ erred when she failed to appreciate that the statements by D1 had the same meaning as the defamatory statements by D2 and D3; iii. that the SCJ erred when she upheld D1’s defence of justification and fair comment but then failed to justify on the defence of fair comment (and privilege); iv. that the SCJ erred in finding that there was no malicious intent in D1’s actions and statements; v. that in defamation cases, the P is not required to prove the exact amount of injury and damages suffered; vi. that despite D2 and D3 withdrawing their counter-claim against the P after the trial has commenced and P had finished giving her evidence, the SCJ did not award the costs to the P; and S/N /ryfmSxvcUOgZOVgdgMpuQ vii. that the SCJ erred in awarding only a nominal amount for general damages after finding D2 and D3 liable for defaming the P. [18] The Memorandum of Appeal for D2 and D3 contained approximately 11 grounds of appeal which going by the issues, may be summarised as follows: i. that the SCJ had erred in allowing the P’s claims against D2 and D3 and awarded general damages of RM10,000.00 with costs; ii. that the SCJ erred when she ruled that the statements by D2 in Facebook had defamed the P and that the comments by D3 on the statements by D2 in Facebook was defamatory in nature against the P; iii. that the SCJ erred when she dismissed D2 and D3’s defence of justification and fair comment; iv. that the SCJ erred when she ordered D2 and D3 to make a public apology to the P in their Facebook and that the P was to check and approve the content of the apology; v. that the SCJ erred in prohibiting D2 and D3 from further making or issuing any defamatory statements against the P; vi. that the SCJ erred in awarding interest against D2 and D3 at the rate of 5% on the damages from the date of judgment until full settlement. [19] The law on defamation has often been cited as in the case of Ayob Saud v TS Sambanthamurthi [1989] 1 CLJ 152 where Mohamed Dzaiddin J (as his Lordship then was) stated as follows: “In our law on libel, which is governed by the Defamation Act 1957, the burden of proof lies on the plaintiff to show (1) the words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published. Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or S/N /ryfmSxvcUOgZOVgdgMpuQ express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged. (Rajagopal v Rajam [1971] CLJU 117; [1971] 1 LNS 117; [1972] 1 MLJ 45).”. [Emphasis added] [20] Quite simply put, the plaintiff bears the burden of proof on a balance of probabilities to prove the 3 elements of defamation, namely that:

the words are defamatory;

the words refer to the plaintiff; and

the words were published. [21] Then in the case of Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371, Gopal Sri Ram JCA (as his Lordship then was) stated: "lt cannot, I think, be doubted that the first task of amour in an action for defamation is to determine whether the words complained of are capable of bearing a defamatory meaning. And it is beyond argument that this is in essence a question of law that tums upon the construction of the words published .... ln my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his paft? lf the question invites an affirmative response, then the words complained of are defamatory. (See JB Jeyaratnam v Goh Chok Tong [1985] 1 MLJ 334.... Having decided whether the words complained of are capable of bearing a defamatory meaning, the next step in the injury is for a court to ascertain whether the words complained of are in fact defamatory. Ihis is a question of fact dependent upon the circumstances of the particular case...." [Emphasis added] [22] Later in the case of Kian Lup Construction v Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32, Justice Ramly Ali (as his Lordship then was) held: S/N /ryfmSxvcUOgZOVgdgMpuQ “Further, whether the words are defamatory lies in the nature of the statement in that it must have the tendency to effect the reputation of a person. Therefore the question arises, in whose eyes must the words complained of have the tendency to affect the plaintiff’s reputation. ln the Law of Defamation in Singapore and Malaysia, 2nd edn by Keith R. Evans (at p. 10), it is stated that, in applying these various tests, the court must look to a particular control group that is, in whose eyes must the estimation of the plaintiff be lowered before the words are said to be defamatory. lt has been said that the court will look at the words from the point of - the law abiding citizen as per Murray-Ansley CJ (S) in Lau Chee Kuan v. Chow Soong Seong & Ors. [1955] I MLJ 21 (at p. 22); that of the average thinking man, as per Mathew CJ in Lau Chee Kuan v. Chow Soong Seong & Ors. [1955] I MLJ 21 (at p. 22); that of the ordinary, reasonable person, as in the case of JB Jeyaretnem v. Goh Chok Tong [1985] 1 MLJ 334; that of right thinking members of society in general, as in the case of Syed Husin Ali v. Syarikat Percetakan Utusan Melayu Berhad & Anor [19731 2 MLJ 56 (at p.58) ln determining the issue, this court does not look to the actual effect of the allegations on the person's reputation, or the meaning of the words actually understood or taken by the listeners. (see: JB Jeyaretnam v. Goh Chok Tong [1985] 1 MLJ 334.) It is not enough that the listeners actually take the words in a defamatory sense, for they must be reasonably justified in so understanding the words before they are found to be defamatory (See The Straits Times Press (1975) Ltd. v. The Workers' Party & Anor [1987] 1 MLJ 186).” [Emphasis added] [23] Therefore, apart from the 3 basic elements to be proved by the plaintiff, he or she also has to prove that the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part. lf the question invites an affirmative response, then the words complained of are defamatory. EVALUATION AND FINDINGS OF THE COURT

Whether the words complained of were defamatory and affected the P’s reputation [24] The SCJ in the broad grounds talked about the word “mencuri” and that it brought negative connotation to the P. But this Court opines that it S/N /ryfmSxvcUOgZOVgdgMpuQ is pertinent to determine also whether the published words such as “mengambil tanpa izin”, “curi”, “aniaya” and “disalahgunakan” were defamatory, referred to the P and in their natural and ordinary meaning imputed to the P any dishonourable or discreditable conduct or motives or a lack of integrity on her part. [25] This Court in the determination of the words aforesaid dealt with the first 2 issues raised by the P and D2 and D3 (as well as D1 who denied any intention to defame the P by relying on the defences of justification and fair comment). It is necessary to refer to the broad grounds of the SCJ in the Notes of Evidence (Rekod Rayuan Tambahan) in order for this Court to determine whether the SCJ has erred in law or fact in arriving at her decision as there is no written grounds of judgment available. The Court also notes that hearing of an appeal is a re-hearing of the dispute from the lower court. Therefore, the second exercise of judicial appreciation of the evidence is conducted by the appellate court and any misdirection which has occasioned a miscarriage of justice will merit appellate intervention. [26] The relevant parts of the broad grounds of the SCJ on liability are as follows: Muka surat 6, Perenggan 154 – 159, Rekod Rayuan Tambahan III) ”Tapi yang mengesankan ialah apabila Defendan Kedua menggunakan perkataan, walaupun dia kata dia hendak minta pandangan kepada rakan-rakan, apabila dia menggunakan perkataan mencuri. Mencuri itu adalah penyataan yang membawa konotasi kelakuan thef ya, ataupun mengalih satu harta alih tanpa persetujuan pemiliknya, pemilik harta alih itu.” (Muka surat 7, Perenggan 181 – 186, Rekod Rayuan Tambahan III) “Melalui pembacaan notifikasi-notifikasi itu, Mahkamah ini memutuskan bahawa memang tidak ada perkataan yang menjurus kepada pencemaran S/N /ryfmSxvcUOgZOVgdgMpuQ ataupun yang mencemarkanlah peribadi ataupun notifikasi yang menjurus kepada pernyataan itu kecuali bila dilihat perkataan ‘mencuri’ itu digunakan. Adakah wajar perkataan ‘mencuri’ itu digunakan oleh Defendan Kedua, kita kena teliti lah latar belakang yang menjurus kepada insiden ini berlaku.” (Muka surat 9, Perenggan 221 – 229, Rekod Rayuan Tambahan III) “Tetapi Mahkamah membenarkan untuk pihak Defendan-Defendan setelah bertahun-tahun berlalu ini untuk membetulkan perkara tentang terutamanya tentang perkataan ‘mencuri’ itu, ya Peguam Defendan Kedua, tuliskan satu permohonan berbentuk maaf, kemaafan dipinta daripada pihak Plaintif ini kerana menggunakan perkataan ‘mencuri’ kerana bagi seorang profesional seperti Plaintif ini ia amat sensitif ya, apabila dia dikatakan ‘mencuri’ sedangkan faktanya menunjukkan bahawa pihak-pihak telah bersetuju, berbincang untuk menggunakan nama Plaintif walaupun kemudiannya Defendan Kedua hendak mengundur diri daripada kumpulan itu.” (Muka surat 10, Perenggan 251 – 255, Rekod Rayuan Tambahan III) “Disebabkan Mahkamah memutuskan bahawa perkataan ‘mencuri’ itu amat keras dan boleh membawa konotasi yang tidak baik, atau pun mencemar reputasi Plaintif, dan diakui itu dibuat oleh Defendan Kedua, maka Mahkamah mengarahkan Defendan Kedua membayar sejumlah ganti rugi pampasan kepada Plaintif.” (Muka surat 15, Perenggan 366 – 368, Rekod Rayuan Tambahan III) “Kaitan dia yang dia, lain-lain apabila ditanya dia menjawab semua, bukan Defendan Ketiga kah yang, kata orang macam menambah-nambah lah macam orang Melayu kata, bukan?” (Muka surat 15, Perenggan 372 – 374, Rekod Rayuan Tambahan III) “Yang lain-lain itu dia lah? So, kita rangkumkan semua, daripada mula-mula dia kata mencuri itu, lepas itu berbual-bual yang mengarut-ngarut itu, dia masuk campur kan?” (Muka surat 15, Perenggan 383 – 384, Rekod Rayuan Tambahan III) “Ya lah, tapi berkait dengan penyataan ‘mencuri’ itu. So macam mana teruknya, apa teruknya? So mesti ada cerita sebelum itu.” (Muka surat 15 – 16, Perenggan 388 – 406, Rekod Rayuan Tambahan III) Tapi kalau dilihat oleh saya meneliti perkataan ini, saya pun tidak tahu apa jadi sebelum itu, dalam kedudukan itu, tentulah saya akan mengatakan teruk itu merujuk kepada perbuatan ‘mencuri’. Boleh ditafsirkan, boleh dikaitkan. S/N /ryfmSxvcUOgZOVgdgMpuQ Sebab itu saya mengatakan kalaupun kita hendak menyokong kakak kita, kita tidak bolehlah menambah teruk kan lagi keadaan. So, saya lagi berpandangan bahawa kedua-dua adik-beradik ini perlu dipertanggungjawabkan atas penyataan-penyataan yang mereka buat dalam kumpulan antara mereka. Kalau mereka tidak buat atau muat naik perkataan itu tentulah tidak ada ulasan-ulasan berikutnya kan? So bertanggungjawablah, kata kepada mereka, mereka diletakkan tanggungjawab untuk.. Sebab itu saya kata, bincanglah antara dua beradik ini, mungkin kakak kata berpunca daripada saya, saya tanggung semua, mungkin, tidak tahu. Atau mungkin dia kata sekarang ini kita sama-samalah bersalah, seperti diputuskan oleh Mahkamah, memuat naikkan komen-komen yang menjurus kepada memburukkan reputasi Plaintif. So saya tidak bolehlah kata, ok satu perkataan ini kalau teruk taken it out of context akan jadi teruk. Kalau taken in the context yang kita mengata-mengata ini, jadi teruk, macam itu. (Muka surat 16, Perenggan 410 – 413, Rekod Rayuan Tambahan III) “Tetapi saya tetap mengatakan bahawa keputusan saya ialah kedua-dua beradik ini bersama-sama dan berasingan adalah tertakluk kepada penyataan-penyataan yang mereka timbulkan di Whatsap dan juga di Facebook.” [Emphasis added] [27] It is submitted by counsel for the P that the meaning of “mencuri” in the Kamus Dewan, Edisi Keempat, Dewan Bahasa dan Pustaka is "Mengambil kepunyaan orang tidak dengan kebenarannya", the meaning of “izin” is "persetujuan, membenarkan (membolehkan), kebenaran". Therefore, the words “mengambil tanpa izin” that was broadcasted by D1 has the same meaning as “mengambil tanpa kebenaran” or “mencuri” as defined in the Kamus Dewan. Hence, these words were also defamatory to the P, imputing her as a dishonest person and she had “oppressed” D1 and her family by blocking the telephone number which D1 used for banking purposes. It followed therefore, that as the SCJ had found D2 and D3 liable for the defamatory words against the P, the SCJ fell into error when she found that D1 was not liable as the defence of justification was applicable in her situation. S/N /ryfmSxvcUOgZOVgdgMpuQ [28] Meanwhile, counsel for D2 and D3 submitted in an action in the tort of defamation, it is settled law that the Plaintiff is required to prove the publication of a defamatory statement and that he was the person defamed: Dato' Sri Dr Mohamad Salleh Ismail & Anor v. Nurul Izzah Anwar & Anor [2018] 3 MLJ 726; [2018] 9 CLJ 285 para 27, CA. It was contended that the impugned statements did not refer to the P and the P never proved this fact during the trial, as stated in paragraph 18 of the written submission (Encl. 22 of Appeal No. 5). Nevertheless, it was also submitted that “Defendan Kedua pernah meminta dan merayu kepada Plaintif untuk menyerahkan kembali nombor telefon 012-4379639 namun tidak diendahkan oleh Plaintif meskipun Defendan Kedua telah menjelaskan kepada Plaintif bahawa beliau amat memerlukan serta terdesak untuk mendapatkan maklumat-maklumat peribadi serta penting yang disimpan di dalam memori nombor telefon tersebut. Disebabkan sikap tidak bertimbang rasa Plaintif dan keengganannya menyerahkan kembali nombor telefon tersebut, Defendan Kedua menjadi buntu lalu memuatnaik status di Facebook seperti di perenggan 13 dan 14 Pernyataan Tuntutan tanpa ditujukan kepada sesiapa dengan harapan untuk mencari jalan penyelesaian melalui respon kenalan-kenalan di Facebook.”. [29] Regardless of their argument, it was clear as day that the impugned statements made by D2 and supported by D3 referred to the P as illustrated in the excerpts from Facebook and WhatsApp attributed to the two defendants. I found that D2 had approbated and reprobated in this issue. D3 could not claim that she was merely commenting because her comments were in fact to “reinforce” the allegations made by D2 in the social media platforms. The “reinforcement” was understandable given the fact that they were siblings and D3 supported her sister’s stand. S/N /ryfmSxvcUOgZOVgdgMpuQ [30] Coming back to the chronological events of things, I refer to the pleadings filed by the parties. The P alleged that when she found out on 11.5.2018 about the new WhatsApp group “KAP TAIPING”, she had asked D1 in a personal message sent as it was believed that D1 was the administrator of the said Group, but the latter did not respond. Hence, fearing that something was amiss as it involved their courses and participants, she went to CELCOM at 7.45 pm to block the telephone numbers of D1 and D2 which they had agreed to be registered under the P’s name. The P’s action started the “retaliation” in Facebook and WhatsApp by D1 and D2, and then D3 “joined” in support of D2. [31] D1 pleaded in her Defence that the WhatsApp group “KAP TAIPING” was established to facilitate refunds of a course fees to participants as the said course was cancelled due to the low number of participants. She denied that it was set up with any bad intention towards the P. D1 also contended that the P did not have any right to be in the said Group. This was rather strange given the fact that she admitted that the P was a business partner of the Company along with D2, but denied that the P was the Company’s Managing Director. At the material time, D1 was only an employee of the Company. Probably there was a storm brewing in their teacup, among the management of the Company, prior to the setting up of the said Group. Otherwise, why would D1 not reply to the P’s attempts to obtain an explanation from her regarding the establishment of the said Group; since D1 claimed the said Group was established only for the purpose of refunding the participants of the cancelled course. [32] D1 in her postings, amongst others had stated “Kita kerja ikhlas tapi kena aniaya terasa sangat2. Canang yang buruk2 pasal akak kat orang lain.. Kondem tahap pendidikan akak. Ambil no tel tanpa izin. Kita ni S/N /ryfmSxvcUOgZOVgdgMpuQ punya la baik dengan dia” (page 113 of the Rekod Rayuan). Taking the whole context of the postings, this Court found that the words “ambil tanpa izin” that was broadcasted by D1 has the same meaning as “mengambil tanpa kebenaran” or “mencuri” as defined in the Kamus Dewan. Hence, these words were also defamatory to the P, imputing her as a dishonest person and she had “oppressed” D1 and her family by blocking the telephone number which D1 used for banking purposes. Therefore, the SCJ had erred in law and fact when she dismissed the P’s action against D1. I will elaborate further on this in the discussion on the defences below. [33] But before that, the Court noted that the SCJ had assessed the credibility and demeanour of the witnesses who came before her and decided the case mostly in favour of the P, despite her rather “stern” comments about the P when the latter was testifying in the lower court. The case was put on hold pending an appeal by the P to the High Court following the dismissal of her application to recuse the SCJ from continuing to hear the case. This application was filed because the SCJ was allegedly biased against the P where the SCJ was harsh and had passed some inappropriate comments towards the latter. The SCJ dismissed the application. In the end, I had dismissed the appeal as I found, based on the notes of proceedings, that the SCJ was “frustrated” with the P’s performance in court. The P would take a long time to answer, asked for the questions to be repeated many times, did not answer some questions and appeared to be confused by the questions posed by the defendants’ counsel. Regardless, at the end of the trial the SCJ found based on the evidence given by the P that her claims against D2 and D3 had been proved on a balance of probabilities whereas in respect to D1, the defence of justification applied. S/N /ryfmSxvcUOgZOVgdgMpuQ [34] I will also briefly deal with the issue raised by D2 and D3’s counsel that the SCJ had erred in law when she admitted a piece of evidence (Exhibit P4 at page 116 of the Rekod Rayuan) on her own volition through D2 without waiting for the counsels’ agreement and it appeared that she had “taken over the role of counsel” in doing so. The evidence was the posting by D2 “Apa patut kita buat dengan org curi fon line kita ambik SIM kad baru di Telco dan menceroboh hak peribadi kita...!!’. The objection was because the posting was a photograph taken from a screenshot on the P’s telephone and was disputed by the defendants because D2 and D3 were not the maker of the photograph. It was argued the document had to be proved manually and subjected to s.90A of the Evidence Act

Nevertheless, the SCJ had asked D2 and she admitted that the posting came from her. Therefore, the SCJ admitted the photograph as part of the P’s documentary evidence. Similarly, D3 also admitted having knowledge of the posting. [35] The defendants relied on the case of Norazlanshah Bin Hazali Mohd Dziehan Mustapha [2018] MLRHU 1513 in support of their argument that P4 was wrongly admitted. In my view, this was just a “red herring”, a last-minute attempt to deflect from the pertinent issue of the maker of the statement/posting ie. D2 could not deny the fact that she had posted the defamatory statement in Facebook on 13.5.2018 at 7.17pm. S.90A certificate is only to prove that the document is produced by the computer (the telephone and its camera) in the course of its ordinary use. Even the defendants had produced the s.90A certificate to support their evidence of the screenshots tendered. Nevertheless, the words “may be proved” in s.90A(2) indicates that the tendering of such certificate is not mandatory in all cases. The weight to be attached to such document tendered in evidence is governed by s.90B of the Evidence Act 1950. In S/N /ryfmSxvcUOgZOVgdgMpuQ the present case, the disputed statement in page 116 was that of the profile name “Zarina Jan” i.e. D2 and not of any other person. Although this particular posting did not mention the P’s name directly, nevertheless, looking at the thread of the comments at page 118, D2 herself repeated the statement that her telephone number “diambil tanpa izin”. Gauging from the responses, by that time on 13.5.2017, their community of KAP and kindergarten operators would have had knowledge about the dispute and D2 was no longer using the telephone number since it was blocked by the P. The case of Norazlanshah Bin Hazali (supra) may be distinguished because the learned judge stated: “[16] … Foremost among these were the screenshots of the impugned statements. However, there were other screenshots in Part C that were not agreed to. Among those were the comments posted by other persons in respect of which formal proof was required by the Defendant.”.

(ii) Defences of justification, fair comment and privilege [36] The burden of proof is on the defendants to prove on a balance of probabilities that the defamatory statements are substantially true. This second issue will cover the third and fourth grounds raised by the parties. Counsel for D2 and D3 argued that the comments by D3 in support of D2’s statement was not defamatory to the P, and if at all, it was fair comment of the situation. I agreed with the findings of the SCJ that the claims against D2 and D3 had been proved on a balance of probabilities and she had rejected their defence of justification and fair comment. There is no reason for this Court to depart from her findings in regard to D2 and D3’s liability. But I did not agree with the quantum of damages awarded. From the evidence adduced, I had considered holistically the overall context of the defences put forth by the defendants and I had found that D1 as well as D2 and D3 could not rely on the defence of justification and the reasons S/N /ryfmSxvcUOgZOVgdgMpuQ are as below. Despite them claiming there was no malicious intention in making the impugned statements, the evidence showed otherwise. [37] One of the responses was by one Ina Aziz “… Ade jugak manusia ghope itu…burukkan nama baik org. Bertabahlah wahai Yong Linda” showed that this person believed what D1 had published, without hearing the other side of the story, and imputed that the P was “horrible”, dishonourable and lacked integrity. Despite D1 claiming that “Masalah 1 pihak tidak professional”, it appeared that D1 herself was not professional in her dealings with the P, refusing to respond when asked about the said Group’s establishment. Her actions in taking her grouses with the P on social media had tarnished the P’s reputation, wherein this Court opined that D1 had also “burukkan nama baik orang” and did not show her professionalisme at all when she mixed personal issues with work in a public platform. Even if the P was not the Managing Director as she claimed, nevertheless, the P was one of the business partners of the Company and should be accorded the respect due to her. The P was entitled to ask about the said Group more so when she was not admitted as a member and she had enquiries from other kindergarten operators who wanted to be included therein. In my view, D1’s refusal to respond on this issue largely contributed to the problem at hand and she had only herself to blame. [38] The main point of contention was the dispute regarding the ownership of the 2 telephone numbers used by D1 and D2 that had been “pooled” as a business number under the P’s name. But as early as May 2017 they had agreed to place their numbers under the P’s name. If it was true that the P “hijacked” their numbers, why was there no police report lodged in 2017? The police reports were lodged only after the 2 telephone S/N /ryfmSxvcUOgZOVgdgMpuQ numbers were blocked by the P. Technically then, it cannot be said that the P had “taken” the telephone numbers without D1 and D2’s permission. Then the defendants in their cross-examination of the P emphasised that the P did not obtain their feedback first before blocking their telephone numbers, unlike the time when they all agreed to register their telephone numbers under the P’s name alone to save the business costs. [39] D1 claimed that she had been using the number for the past 15 years but in her cross-examination, D1 was unable to prove that she paid for the bills because the exhibited bills did not bear any telephone number (Exhibit D43). She was asked that only the telephone number was blocked but all data in the SIM card that was with her at that time were still retrievable. D1 admitted that she did not have any proof that her SIM card then could not be accessed. She also agreed that after the P blocked the telephone number, she had obtained her husband’s help to register a new telephone number with the bank for internet banking purposes. She also admitted that she did not have any proof that she could not transfer money to her child before she posted the first posting on 12.5.2018. She stated that the posting was directed to the P but she agreed that other viewers may also read that post. Then she was asked that the post was a notification or justification (that she was unable to use the number for online banking). D1 replied that it was a “penjelasan” to the P but she admitted that she did not ask the P about it. She also agreed the broadcast on 13.5.2018 was not a justification (page 328 of Rekod Rayuan Tambahan). [40] The law in regard to the defence of justification is found in s.8 of the Defamation Act 1957 which states: S/N /ryfmSxvcUOgZOVgdgMpuQ

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 having regard to the truth of the remaining charges. [41] I refer to the case of Jason Jonathan Lo v Star Media Group Sdn. Bhd. and 3 Others (Guaman Sivil No: BA-23NCVC-32-08/2019) where Alice Loke Yee Ching J referred to the case of Dr Chong Eng Leong v Tan Sri Harris bin Mohd Salleh [2017] 4 MLJ 611. In that case, His Lordship Abang Iskandar Bin Abang Hashim JCA (now President of the court of Appeal) held: [40] Justification as a defence affords a complete exoneration from any liability for the defendant, although as a matter of fact and of law, the impugned statement was indeed defamatory. Justification connotes the truth of the statement. The rationale upon which this defence is founded is really simple, namely the truth. Stating the truth can never be a wrong in law, though often a time, it may cause hurt to the plaintiff. Nothing can compromise a truth. A truth, however hurtful, once established, cannot be rebutted. Just like antidote is to venom, truth neutralizes falsehoods. For that reason, if a defendant were to publish for the whole world to hear, that the plaintiff is a rogue or a scoundrel, the truth of the same statement, once proven by the defendant, would provide a complete and full defence against any liability for defamation. In Chiew Foo Hua v The Publisher Miri Daily News & Anor [2000] MLJU 664; [2000] 8 CLJ 68, the court there had held as follows: In order to succeed in the defence of justification, the defendants must establish the truth of all the material statements in the words complained of which may include defamatory comments made therein. In order to justify such comments, it is necessary to show that the comments are the correct imputations or conclusions to be drawn from the proved facts. [41] Again, the law does not require that the defendant come up with the absolute truth pertaining to the whole of the impugned statement that has disparaged the plaintiff and put the latter in public odium or disrepute. It would suffice if the defendant is able to prove that the defamatory statement is in substance the truth. As such, there is no escaping for a defendant to prove the truth of the material part of the impugned S/N /ryfmSxvcUOgZOVgdgMpuQ statement that had injured the plaintiff. If he succeeds in doing so, then the publication of the statement, however defamatory, is justified and no liability sticks on him… [42] To our minds, the operative words under that s 8 would be ‘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 other words, the sting of the defamatory remark that has materially injured the plaintiff must nevertheless be proven to be the truth by the defendant (see Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242; [2014] 3 CLJ 560). [Emphasis added] [42] There was a contradiction in D1’s pleading in paragraphs 7.1 and 7.2 of the Defence that there was no malicious intention in uploading the impugned statements in Facebook and WhatsApp because she could not contact the P (tidak berjaya dihubungi) to return the telephone number to D1. She tried to justify her actions because she was unable to contact the P. The P’s Statement of Claim in paragraphs 22 and 23 alluded to the fact that D1 had personally attacked the P on WhatsApp and bombarded her with abusive and harsh statements such as “Hg ni iblis ke”, “Mmg anak setan”, “kurang ajar x da didikan dr mak bapak”. On the other hand, in the Defence, D1 did not mention paragraph 22 but denied paragraph 23 of the Statement of Claim. She averred that she never personally attacked the P in the WhatsApp messages and it was merely fair comment. In paragraph 12.2, however, D1 pleaded that she was only trying to request for the P’s co-operation to return her telephone number but the P refused to co-operate. I concluded that D1 had indeed been able to contact the P after her telephone number was blocked and her pleadings in paragraphs 7.1.and 7.2. as supported by her evidence in court was unsustainable. Therefore, I found that the SCJ had erred in law and fact when she allowed the defence of justification by D1 and dismissed the P’s claim against her. S/N /ryfmSxvcUOgZOVgdgMpuQ [43] In her cross-examination, D2 stated she asked her sister to upload the posting/notification on 13.5.2018 in all the WhatsApp groups because D2 could not be contacted by parents and they were having their sports day. She disagreed that the disputed posting at page 116 of the Rekod Rayuan (P65) was directed towards the P as she just wanted her Facebook friends’ opinion about what to do when someone had stolen her telephone line. The posting was “APA PATUT KITA BUAT DENGAN ORANG YG CURI LINE FON KITA AMBIK SIM CARD BARU DI TELCO DAN MENCEROBOH HAK PERIBADI KITA..!!”. She relied on the defence of privilege, justification and fair comment. She merely wanted to get back her telephone number and it was not her intention to jeopardise her Company’s reputation. However, the defamatory statement came with exclamation marks and showed her anger in that posting, and in my view was not just a question asking for opinion. There were 45 reactions from the public responses in Facebook (page 116 of the Rekod Rayuan) and 20 comments. D2 admitted that the P was entitled to take the telephone number as can be seen in page 376 of the Rekod Rayuan Tambahan where she stated “…mungkin dia sudah ambil mana saya tahu kan, sebab nama dia, dia boleh buat macam itu, jadi saya tak tahu …:. The posting had later been deleted according to D2 but she did not clarify her statement in the posting after she went to CELCOM and was informed what had actually transpired. If D2 had wanted some opinion, she need not have used the words “curi line fon” when it had not been so proved at the material time. Moreover, D2 was also a business partner and was aware why the decision was made in 2017 to pool their numbers together under the P’s name. [44] In regard to D3, her cross-examination was short and it was established that she had used her telephone to post the messages (pages S/N /ryfmSxvcUOgZOVgdgMpuQ 120 and 121 of the Rekod Rayuan) in several WhatsApp groups because her sister could not use her own number. She agreed that she had posted in the Pengusaha Taska PTP Group which stated “Kejamnya…dgr cite ini calon presiden PTP akan dtg…takutnya” (and had 4 laughing icons next to the statement). This statement was her own comment in regard to her earlier post that D2’s number had been taken by the P without her permission. Her defence to uploading these postings was the defence of justification and fair comment. Essentially, D3 was repeating what D2 had claimed in Facebook on 12.5.2018 that her telephone number had been taken without her permission by the P (refer to pages 115, 120 and 121 of the Rekod Rayuan). The P’s name was stated in these posts. It was also noted that in D1’s post dated 13.5.2018, she had stated “… Dengan ini juga dinasihatkan pada sesiapa jua agar TIDAK menghubungi atau mesej saya Puan Raja Azlinda +6012-9847971 mahupun Puan Zarina Jan +6012-437 9639 kerana No Telefon kami telah disalahgunakan oleh @Hanisal Khadijah Abdullah…” (refer to page 107 of Rekod Rayuan). [45] In the case of City Team Media Sdn Bhd & Ors v Tan Sri Datuk Nadraja a/l Ratnam [2022] 2 MLJ 608, referred to in Jason Jonathan Lo’s Case (supra), the Court of Appeal stated the following in regard to repeating defamatory statement: “[39]…It is trite law that repeating someone else’s libelous statements cannot form a defence and offends the repetition rule. [40] In Gatley on Libel and Slander (10th Ed) at p 850, para 27.10, the learned authors state: Further, ‘there is a rule of general application in defamation (dubbed the repetition rule’ …) whereby a defendant who has repeated an allegation of a defamatory nature of the claimant can only succeed in justifying it by proving the truth of the underlying allegation — not merely the fact that the allegation has been made. S/N /ryfmSxvcUOgZOVgdgMpuQ [41] In Lewis v Daily Telegraph Ltd [1964] AC 234 at p 260, Lord Reid held ‘repeating someone else’s libellous statement is just as bad as making the statement directly’.”. [Emphasis added] [46] This Court noted further that the P in paragraph 35(vi) of her Statement of Claim had pleaded that her nomination as the President of the Persatuan Taska Perak (PTP) was rejected after the defamatory statements were made. D1 denied in paragraph 16.4 of her Defence it was not due to this reason but because there was not enough corum to hold the PTP meeting. There was no documentary evidence adduced to substantiate D1’s assertion. The SCJ found both D2 and D3 to be liable for the defamatory statements and I agreed with the SCJ’s finding on D2 and D3’s liability towards the P and there was no reason for me to disturb this finding. It appeared that the P’s reputation had suffered due to this dispute which had been made public by the defendants when, with tempers kept in check, they could have resolved the matter without defaming anyone and causing damages and injury to the P’s personal and professional reputation. The details of damages suffered were as contained in paragraph 35 onwards of the Statement of Claim. [47] D1 had claimed that her statements were privileged because they were “hak ekslusif saya pada pendapat saya”. The law in regard to the defence of privilege is as stated in s.12 of the Defamation Act and that is only limited to qualified privilege of newspapers. There is also limitation on the defence of privilege at elections under s.14 of the Defamation Act. I refer to the Court of Appeal decision in the case of Dato Sri Dr Mohamad Salleh Ismail (supra) on qualified privilege where His Lordship Abang Iskandar Bin Abang Hashim JCA then had stated: S/N /ryfmSxvcUOgZOVgdgMpuQ “[55] A defence of qualified privilege is founded on the need or duty on the part of the alleged defamer to impart information to the public at large and that there is a duty on the part of the public to receive that information. In a defence of qualified privilege, unlike justification, truth is not a pre-requisite but it can only succeed if there is no malice in such publication. If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim for defamation. Although the law of defamation exists to protect reputations, it is recognised that in particular situations it is to the benefit of society generally for people to be able to communicate without the fear of being sued for defamation. This is so despite the risk that a person’s reputation will be damaged and they will not be able to restore it by bringing a claim for defamation. Its rationale resides in the wider consideration that a general public good in such exercise overrides the need to protect individual reputation.”. [48] From the above passage, I need not say much other than to state for the record that obviously, the defence of privilege as D1 claimed, did not apply to her situation because it is tied to the field of journalism. For good measure, it also did not apply in the case of D2 and D3. Theirs was more on justification and fair comment. There can be no qualified privilege if malice was present. In the case of Dato Seri Mohammad Nizar Jamaluddin v Sistem Televisyen Malaydia Bhd & Anor [2014] 3 CLJ 560, the Court of Appeal held that the presence of malice can only be deduced or inferred from the circumstances obtaining in each case. Albeit, it was a journalism case where qualified privilege is usually invoked as a defence. The test for malice was laid out by the House of Lords in Horrocks v Lowe [1975] A.C. 135 - “that is, where the defendant knew the publication to be false or where the defendant made the publication recklessly, being indifferent to the truth of what he published and neither considering nor caring whether it was true or not or whether he knew the publication to be false.” I had found that in the present case as the defamatory statements by the defendants were tainted with malice and therefore, their defence of justification failed. S/N /ryfmSxvcUOgZOVgdgMpuQ [49] Lastly in regard to the defence of fair comment, the law is as stated in s. 9 of the Defamation Act which states:

In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. [50] In the case of Dato Seri Mohammad Nizar Jamaluddin (supra), the learned High Court Judge then had stated: “[26] Pembelaan kedua defendan adalah 'fair comment' atau ulasan saksama. Dari segi undang-undang, pihak defendan tidak perlu membuktikan kebenaran kenyataan yang dikatakan fitnah itu untuk berjaya di dalam pembelaan ulasan saksama. Bagaimanapun defendan perlulah menunjukkan perkataan yang digunakan itu adalah satu komen atau ulasan berkaitan perkara yang berkepentingan awam - lihat kes Kemsley v. Foot [1952] 1 AER 501; Chong Swee Huat & Anor v. Lim Shian Ghee T/A L & G Consultants & Education Services [2009] 4 CLJ 113 dan S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor [2011] 1 CLJ 460." [51] Counsel for the P also referred to the case of Hajijah Bana v. Ramli Usop [2000] 6 CLJ 184 where the Court of Appeal held: "[3] To succeed in the defence of fair comment, the appellant must prove that:

the words alleged to be defamatory were comments and not stalernenls of facts; (ii) there was a basis for the comments; (iii) the comments were of public interest; and (iv) they were made honestly and without malice." [52] It was submitted by the counsel for the P that the comments were not of public interest. Based on the evidence of the defendants, the motive for making the statements was to get the P to return the telephone numbers to D1 and D2. Nevertheless, their motive was doubted because the statements were not addressed to the P alone but to the public. The subject-matter of the comments in that form that was published attracted S/N /ryfmSxvcUOgZOVgdgMpuQ the wrong kind of public interest i.e. speculation and more speculation, when the trurth of the matter had not been made known to the audience. Therefore, I agree with the submissions of the P. Based on the above case law, this Court found that the comments were not made in earnest, it was not honestly made and tainted with malice. Particularly I refer to the fact that D3 had commented on D1’s Facebook status where she stated “Smpai cm tu skli perangai dia… terukkk nyeee” (refer to pages 109-110 of the Rekod Rayuan). Earlier, I had cited D3’s comment about the P’s nomination for the President post of PTP and the negative connotations which came with the said comment. D3’s liability stemmed from her comments in D1 and D2’s Facebook page which were definitely unfair and by repeating the defamatory statements in many of the KAP and PTP WhatsApp groups as well as the 2 comments aforesaid. The sting of the impugned statements was that the P was a thief, dishonourable and could not be trusted. The public reactions to the postings in Facebook and various WhatsApp groups were proof enough that the damage had been done to the P. The defendants had therefore failed to discharge the burden of showing that their allegations were true and accurately stated.

(iii) Damages and other reliefs [53] This last part covers the remainder of the issues raised by the parties in their Memorandum of Appeal, which concerned damages and other reliefs granted such as an order for public apology and prohibition from repeating the defamatory statements. Overall, the Court had found that the impugned statements contained words that were defamatory in nature. The words complained of must tend to lower the P in the estimation of right-thinking members of society generally, or that they must tend to cause him or her to be shunned or avoided, or they must S/N /ryfmSxvcUOgZOVgdgMpuQ tend to excite against the P the adverse opinion of others: Syed Husin Ali v Sharikat Perchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56; Tun Patinggi Hj Abdul Rahman Yaakub [1996] 1 MLJ 393. [54] This Court viewed that some compensation to the P was in order. Nevertheless, compensation must be fair, reasonable and adequate but not excessive: Yang Salbiah & Anor v Jamil Bin Harun [1981] 1 MLJ 292; Inas Faiqah Mohd Helmi (a child suing through her father and next friend: Mohd Helmi Abdul Aziz v Kerajaan Malaysia & Ors [2016] 2 CLJ 885; Wong Li Fatt William (an infant) v Haidawati Binti Boihen & Anor [1994] 2 MLJ 497. The Court has taken into consideration both parties’ submissions and perused the broad grounds of the SCJ and concluded that the total amount awarded to compensate the P for the losses suffered to her reputation and business was inadequate in the circumstances of the proved facts.

Public apology [55] Firstly I will address the issue of the public apology that was ordered by the SCJ in the Judgment. The defamatory statements made almost 6 years ago may have been deleted but the fact remained that the P had suffered damages because of the collective actions of D1, D2 and D3. The SCJ did not find liability on D1 but I found that it was a plainly wrong decision and I had explained my reasons for reversing her finding on this issue and allowed the P’s claim against D1. It goes without saying then that the SCJ did not err in prohibiting D2 and D3 from further making or issuing any defamatory statements against the P. This prohibition also applied to D1 now that this Court had found her also to be liable for the defamation against the P. S/N /ryfmSxvcUOgZOVgdgMpuQ

Costs for withdrawal of counterclaim [56] Now I go on the monetary awards that I had read out during the delivery of the appeals decision. The P complained that despite D2 and D3 withdrawing their counter-claim against the P after the trial had commenced and P had finished giving her evidence, the SCJ did not award costs to the P. The costs prayed for by the P was RM5,000.00 and counsel relied on the provision of O.59 r.23(5)(d) of the Rules of Court

The scale of fees allowed for legal costs of RM72,000 was RM5,450.00. This Court found that the amount of RM5,000.00 prayed for was reasonable and justified since preparations had been made to file a reply to the counter-claim earlier and at trial. Hence, the Court ordered the costs to be apportioned on a 50-50% basis upon D2 and D3 for withdrawal of the counterclaim.

General damages [57] In the case of Laksamana Realty Sdn Bhd [2005] 4 CLJ 871, the court there referred to Tan Kuan Yau v Suhindrimani Angasamy [1985] 1 CLJ 429 where the Federal Court held: "The principle that could guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that either there was an omission on the part of the Judge to consider some relevant materials or he had admitted for purposes of assessment some irrelevant considerations. If the court is satisfied or convinced that the Judge has acted upon wrong principles of law then it is justified in reversing; indeed it is its duty to reverse the finding of the trial Judge." [Emphasis added] S/N /ryfmSxvcUOgZOVgdgMpuQ [58] In the case of Chin Choon @ Chin Tee Fut v Chua Jui Meng [2004] 2 MLRA 636 the Court stated in consideration of calculating an award for damages, regard must be had to the following: [5] “In Defamation Law, Procedure & Practice by Price & Duodu (3rd Ed, para 20–4 at p 208) the learned authors set out the several factors that a court must take into account in assessing compensatory damages. This is what they say: The amount of damages awarded in respect of 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.” [59] It was submitted by the defendants that the P had failed to substantiate the RM250,000.00 sought for general damages as well as aggravated damages to be assessed by the Court. The SCJ did not allow aggravated damages. In the case of Chin Choon @ Chin Tee Fut’s Case (supra), the Court of Appeal held that an award for damages in defamation cases will be a global sum with no categorisation to be made into general, exemplary and/or aggravated damaged. The general damages awarded should be reasonable to compensate the P for the injuries suffered to her reputation. [60] The P did not show how she arrived at the figure of RM250,000.00 for general damages claimed in the Statement of Claim. Nevertheless, the P did have her station in life even if she was not, for instance, a famous artist or politician. She was a business partner of D2 and employer of D1. It was undisputed that she was running for the President post of the PTP. S/N /ryfmSxvcUOgZOVgdgMpuQ I refer again to the case of Jason Jonathan Lo (supra) for comparison where the learned Judge stated: “[79] In his Statement of Claim, the Plaintiff claims that he has suffered pecuniary losses to the tune of RM 49 million. However, he led no evidence as to the computation of these losses. At the conclusion of the trial, his counsel submitted that award of RM 500,000 to RM 600,000 for general damages and RM 100,000 to RM 250,000 for exemplary damages. The Defendants on the other hand contend that recent judicial trend favour a global award and a sum of RM 100,000 to RM 200,000 to be a fair amount. [80] To decide on the question of damages I have examined the authorities on the damages that have been awarded in defamation suits. I note that the highest quantum awarded is RM 800,000 for the case of Datuk Seri Anwar bin Ibrahim v Wan Muhammad Azri bin Wan Deris [2014] 9 MLJ 605. The basis was the aggravating factors where the words employed were obscene and obnoxious and cast serious slurs on the character of the plaintiff who was a political leader. In the case of Datuk Harris Mohd Salleh v Datuk Yong Teck Lee (sued in his personal capacity and as an officer of the second respondent) & anor (supra) RM 600,000 was awarded, taking into account inter alia, the adverse effect of the defamatory statements on the plaintiff’s dignity and reputation and the absence of remorse for defaming the plaintiff. [81] Firstly, I do not think an award for exemplary damages is warranted as the Plaintiff has not shown his case to come within the circumstances laid down in Rookes v Barnard [1964] UKHL 1. Neither do I think it warrants an award for aggravated damages which is awarded in instances where the injury has been caused by the exceptional conduct of the Defendants. Reference is made to the Federal Court case of Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 where Mohd Zawawi Salleh JCA (now FCJ) noted as follows: [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.”. [Emphasis added] S/N /ryfmSxvcUOgZOVgdgMpuQ [61] In summary, this Court on 30.1.2024 ordered general damages (GD) for the defamation and costs as follows, which I noted that the P has not appealed: Sessions Court High Court D1 D2 D3 D1 D2 D3 GD (RM) Nil 10,000 25,000 30,000 20,000 Costs (RM) 10,000 10,000 10,000 10,000 5,000 [62] This Court opined that the total amount of RM75,000.00 awarded (collectively among the 3 defendants) was sufficient and not an unjust enrichment to the P to compensate her for the loss of reputation and injured feelings. Comparing the facts in the present case with the 2 cases above, in my view, the defendants were reckless rather than vicious in their statements and comments and the effect that may arise against the P. The SCJ already found that the defamatory statements arose from the incident of the blocking of the telephone numbers but the SCJ erred that D1 was justified in doing so and stated that D1’s position in the company had nothing to do with the defamatory statements. The Court further ordered that the costs allowed are to cover the "costs here and below" subject to allocateur to be paid forthwith to the P.

Special damages [63] In a defamation action for libel, special damages need not be proved unlike slander which is actionable per se upon proof of actual or special damage. Hence, each case is to be decided on its own facts. In regard to the claim for special damages where the SCJ dismissed it, this Court allowed the amount of RM56,400.00 in special damages as the P was S/N /ryfmSxvcUOgZOVgdgMpuQ able to justify the amount in relation to the loss of income from cancellations of course attendance. Additionally, I ordered that the special damages awarded were to be paid equally by the 3 defendants to the P. That works out to RM18,800.00 per person. The reason was because from the evidence adduced, it can be deduced that their actions collectively had contributed to the potential participants to lose confidence in the courses that they had signed up for under the business.

Interest [64] The defendants, including D1, are to pay interest at 5% from the date of judgment until full settlement as it is in accordance with s. 11 of the Civil Law Act 1956 and O. 42 r.12 of the Rules of Court 2012. CONCLUSION [65] Premised upon the above considerations, the Court found that appellate intervention was justified in terms of liability and quantum awarded and accordingly allowed the Plaintiff’s appeal with costs subject to allocateur. The Court dismissed the 2nd and 3rd Defendants’ appeal with no order as to costs. Order accordingly. Dated 5 May 2024 Sgd. NOOR RUWENA BINTI MD NURDIN Judicial Commissioner High Court of Malaya, Taiping S/N /ryfmSxvcUOgZOVgdgMpuQ For the Appellant/Plaintiff: Mr. Mohammed Zamri Bin Ibrahim Messrs. Moh & Co., Seri Manjung. For the First Defendant/Respondent: Mr. Sukhvinder Singh Sidhu Messrs. Rajandran Donic & Co., Ipoh. For the Second and Third Defendants/Respondents: Mr. Mohd Aidil Arsad Mesrs. Hakimi, Lalitha, Mardhiyah & Associates, Taiping. S/N /ryfmSxvcUOgZOVgdgMpuQ