Kua Boon Haun v Peng Choong Leng (B-02(NCvC)(W)-1429-09/2023)

The appeal is against the decision of the High Court of Malaya at Shah Alam ("the High Court") delivered on 29 August 2023. The appeal came before us for hearing on 19 November 2025.

The learned High Court Judge ("the HCJ") held that the Respondent/Plaintiff had succeeded in his defamation action against the Appellant/Defendant for certain statements which were found to have been published in the "Taiwan University Alumni Association Negeri Sembilan (TUAANS) WhatsApp Group" and which were held to be defamatory.

The learned HCJ held that the Appellant had published the impugned statements and awarded general damages of RM80,000.00 together with costs of RM35,000.00 and consequential reliefs.

For the background facts, we will draw upon the learned HCJ's narrative. We will refer to the parties as they were in the court below.

In 2016, the Plaintiff was nominated by the Chung Yuan University (Taiwan) Alumni Association Malaysia (CYUAA) - of which he was a member - to run for the post of President in Federation of Alumni Association of Taiwan Universities Malaysia (FAATUM).

On 17 April 2016, the Plaintiff was elected as the President of FAATUM.

A few months later, it came to light that CYUAA's registration had been revoked before the election.

The Plaintiff then ended his tenure. A fresh election was held on 12 February 2017. The Plaintiff failed to in his re-election bid.

The Plaintiff averred that he was unaware of the revocation of CYUAA's status until receipt of a letter from the Sabah State Registry of Societies.

The Plaintiff alleged that the Defendant had made defamatory statements against him in TUAANS WhatsApp Group which could be read by all the members. He alleged that these statements had affected him adversely and had resulted in harm to his reputation.

The Plaintiff himself was, however, not a member of the WhatsApp Group.

The impugned statements made in Mandarin and the Bahasa Malaysia translation of those statements are as follows: 2 森美廣留台同學會 C@巨海因，E@白聚韋，E@卜曾芬，E@詹祥益... +6019-3307488 ~bhkua E@王煜邦 老柯，請你幫忙提供真相，我可以拿到中原理事會上及在中原群中討論。 耀邦学長，方俊能在提名時是不知中原註册被吊销。发生了吉坡事件後，他们委派了2位学弟偷偷去查其它校友会，是希望找到拿督绍厚的支持者有问题的。但不幸得，发现中原校友会已在2015年被吊销。夫妇要求2位学弟不可说出。 会前会當天，选委会再三要求有问题的校友会自首，但他没有诚实面对，造成今天联总的难堪和風波。 我和方俊能在联总共事4 2 森美閣留台同學會 C@吕海胜，E@白梨帮，E@卜雪芬，E@曾祥益... 我和方俊能在联总共事4年，我原本也支持他當会長，但第4年他们夫妇原形畢露，我才轉而支持有诚信、有領導能力的拿督绍厚。 中原的问题和细节您可直接联络中原顧问洪進兴学長问个明白。 我是被联总前会長邀請進入联总理事会，三次都高票當选，参选時，我们可选择領導人，选後自然是联总团隊。但不幸的，方俊能的無能領導，联总秘书处总辞，亲密战友——离他而去。 如果各位学長有兴趣知道更多和證据，欢迎安排時間。拿督绍厚和洪進兴会長將恭候大家。谢谢 F44:23 eeeeo Digi 40 BW + 15% + 1.10m 2 Persatuan Alumni Uniquestr Taien, Negot Sandakan C@f Ls Hai Thag, Eg@al Rong Hua, Eg@u Xiao Feng, Eg@hong Xiong 11... +40 19-380 7488 shkus Diy Airing You Book Ka (marmal), Afrika Selolong Karno ammribekkan kelabusan, saya bedah karno dan Derrickang of Lembaga Penyaparan Zhong Yuan, dan Kaurgolan perbusan Zhong Yuan 0000 Yhyr. Soular Yin Deng, Peng Chong Leng Tahun tahun pendukatan Zhong Yuan tolah diguntung dikit dhacotkan pemain pencalon. Soupes burla lu porkara Kadah Pavils, merkeha merupakan 3 orang junior penglalu merupakan alorit yeng leit secara rakat, dengan harapan mupoya merudapai balkan pengchong-pengchong Dato Shan Hou adalah Darmandah, Yetapi makengryn, merudapati Pursutan Alorit Zheng Yuan [CYUA4] tolah diguntung dikit dhacotkan pada tahun 2013. Souril merit merindka 2 orang jorrior tolah merindklah Sobetum dan pada hart masyarakat, Asortifikausa Penelitian Raya berdung kali mencinta Persatuan-persatuan Altermal yang harmselah strat diri. Tetapi dia tikak merghas捷 dengan papan, mengubah hernai dan hobarchen yang dilundul olah Gatungan Persatuan pada hart istk. Saya bakaujacana dengan Perg Oncong Leng di Gebung Perkatan selama 4 Peng Chooong Leong, Oda Siw Hian, Hong No Xin, CRUAA ejuan sama dilakukan oleh Pegiston I certify and agree to the terms manifested on the document proceeded. eeeeo Digit 40 858 4,30cm 15% 2 Percatuan Akamri Uni Sekreti Tahun, Nagari Sambalan C@ Lv Hai Ting, E@ Bai Kong Hao, E@Bu Xiao Feo, E@Zeng Xiang Yi ... Saya bertafasama dengan Perg Choong Lang di Gabangan Pers Huae selama 4 tahun, pada mulanya saya pen akun solong berbu manaji pergeral, taitapi pada tahun ke-4 maret saamil istanil tortongkir alapa murnaka petusamnya, bunu saya bertudar dan memyelong Debi New New yang mempernyai 8/10/2014 dan kepelepuhan Masalah dan Isatin Outir Zhong Yuan hama boleh teros mengudara/ Panashat Zhong Yuan, seri Horg Jie Xiang dan mandapatkan penjelasan Saya dijagpat oleh kelapa Pengaruh gatungan perawatan usul memasalah Lombago pengaruh gatungan perawatan, tiga kali pun mansang dongan emil majorit, apakita mansangal gatun raya, kawal bolah memilah kuala, setepan lx semcatnya gawakan Gatungan Perawatan GpJH, tetapi melengkaya, dikabatkan oleh kadilutuprayaan Peng Choeng Long dolam kacatimpuran. Sabrinaatl Gatungan Perawatan anekatikkan jematan secara kolah, rakan seryqjmengan yang rapat oleh mansanggatungan acun dermi mutu. Aku pars sanker bermasal untuk menggetahui Irish boar, dan tentang buah, dikal-akilan menggetarikan mata. Dato Siew Hew dan Perguerul Hong Jin Xie akan meneritkan anda sermas. Tetra Kant 22244 Peng Choung Leng, Octo New Hue, Hong An Niu, CRUMA quien name dikunakan an otho Penguin ISO 16931 Certified International # E@王耀邦 老兄，請你幫忙提供真相，我可以拿到中原理事會上及中原群中討論。 10:52 PM E@王耀邦 老兄，請你幇忙提供真相，我可以拿到中原群中討論。 耀邦学長，方俊能在提名時是不知中原注冊被吊销。發生了吉坡事件後，他們委派了2位学弟偷偷去查其它校友会，是希望找到拿督绍厚的支持者有問題的。但不幸得，發現中原校友会已在2015年被吊销。夫妇要求2位学弟不可说出。 会前会当天，选委会再三要求 森美簡留台同學會 C@岳海应,E@卜儒苏,E@王綱邦,.. 钥。大妇要求2位字第不可说出。 会前会當天，选委会再三要求有問題的校友会自首，但他沒有诚实面对造成今天联总的难堪和風波。 我和方俊能在联总共事4年，我原本也支持他當会長，但第 4年他们夫妇原形畢露，我才轉而支持有诚信，有領導能力的拿督绍厚。 中原的問題和细节您可直接联络中原顧問洪進兴学長個明白。 我是被联总前会長邀請進入联总理事会，三次都高票當选，参选時，我們可选择領導人，選後自然是联总团隊。但不幸的，方俊能得無能領導，联总秘书处总辞，亲密战友一一离他而去。 森美簡留台同學會 C@自海应, E@卜雪芬, E@王鯉邦, 联总秘书处总辞，亲密战友一一离他而去。 如果各位学長有兴趣知道更多和證据，欢迎安排时间。拿督绍厚和洪進兴会長將恭候大家。謝謝 11:05 PM E@王耀邦 果真如此嗎？ 11:06 PM E@王楠郑果真如此嗯？ 是的。虽然表面上是支持方俊能，但那是被逼于无奈的，其实我心里是很讨厌他的为人，简直就是伪君子和无耻小人，选举前就知道中原不合法，但是却假装不知道，欺骗大家。

The Plaintiff thus sued the Defendant for defamation. The action was struck out by the High Court but, on appeal, the action was reinstated and remitted to the High Court for trial.

In August 2020, the Defendant was allowed to amend his pleading, after which he filed his second striking out application which was allowed.

On 8 November 2022, the appeal was allowed, and the dispute was finally tried.

In Raub Australian Gold Mining Sdn Bhd (in creditors' voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720, the Federal Court made it clear that, in order to succeed in an action for defamation, the Plaintiff has to show that:

the impugned statement bears defamatory imputations;

(ii) it refers to or reflects upon the plaintiff's reputation; and

(iii) it must have been published to a third person by the defendant.

While the High Court found that the impugned statements were defamatory, were circulated to third parties (who numbered between 150 to 180 in the WhatsApp Group), and referred to the Plaintiff; the primary thrust of the Defendant's appeal was that he did not author or make those impugned statements, and the impugned statements were in any event not proved.

The High Court was mindful that "the Plaintiff is not in the TUAANS WhatsApp group and he did not see the Defendant write the impugned messages himself personally. It was further argued that the learned counsel for the Defendant had during cross-examination put questions to the Plaintiff that the impugned messages were not made by the Defendant to which the Plaintiff agreed."

On the evidence, the Plaintiff was not a member of the WhatsApp Group. He admitted as much in his witness statement, WSPW1. He did not see the impugned statements originating from the Defendant. He also averred in WSPW1 that he only got to know about the statements from one Wong Yew Pan ("Wong") and one Siow Fook Choi ("Siow") who were members of the WhatsApp. That averment would be hearsay and inadmissible, as Wong and Siow were not called as witnesses.

The Plaintiff referred to a written document in Mandarin with a translation in Bahasa Malaysia which purportedly contained the impugned statements, and was marked as ID-1, since its authenticity was disputed.

It was suggested to the Plaintiff that the impugned statements which formed part of one document could have been fabricated or altered or prepared by a third party, since the Plaintiff had no personal knowledge of the source.

We observe from WSPW1 that he did not disclose how or where he obtained ID-1. During cross-examination, the Plaintiff agreed that ID1 is "just a mere paper passed by a third party to you." It was only in re-examination that the Plaintiff said he had seen the impugned statement on a handphone, without specifying whose handphone. He later added in further re-examination that it was Siew (the President of the TUAANS) who provided him the information, when the cross-examination had already been completed.

Although the Plaintiff carried the burden of proving the essential elements of the case, he did not call Siew or Wong to testify that the impugned statements in ID-1 came from the Defendant. No reason was given for that omission. Section 32(1) of the Evidence Act 1950 cannot be invoked so as to bring that evidence in as an exception to the hearsay rule.

ID-1 was no more than an unauthenticated hearsay paper copy allegedly given by Siew. Evidence derived from interviews or third party sources (to prove the truth of the statement), rather than the personal knowledge of the witness, is hearsay and has to be excluded, even if no objection is raised. See the decision of the Supreme Court in Malaysia National Insurance Sdn Bhd v. Malaysian Rubber Development Corp [1986] CLJ Rep 185.

The Plaintiff had failed to establish authenticity of ID-1 and attribution of authorship to the Defendant, with both aspects overlooked by the High Court.

The Defendant himself came up with ID-2 which contained the same impugned statements but which were imputed to Siew and Wong. Similarly, the Defendant did not call Siew or Wong to advance his case.

In short, both ID-1 and ID-2 (relied upon by the Plaintiff and Defendant respectively) were unauthenticated and not marked as exhibits.

The High Court instead found that the Defendant, in his original unamended Defence, had "admitted" that he was the one who published the impugned messages on the TUAANS WhatsApp Group by invoking the defences of justification and qualified privilege without a clear denial of authorship.

A perusal of the original Defence appears to show otherwise. The finding is misconceived.

The Defendant had in fact reserved his right to challenge the authenticity of ID-1 in the unamended Defence. He pleaded vide paragraph 11: "Tanpa prejudis kepada hak Defendan untuk mencabar kesahaan whatsapp yang didakwa oleh Plaintif," before pleading fair comment and justification as a fallback. The Defendant had also pleaded the general traverse: "Kecuali di mana di akui dengan nyata, Defendan (menafikan) setiap kenyataan dalam Penyataan Tuntutan (seolah) ia dinyatakan di sini dan dinafikan satu persatu."

The Defendant is entitled to mount his defences in the alternative. There is no clear, unmistakable and unequivocal admission of authorship.

On any view, he was subsequently given leave to amend his pleading to specifically state vide paragraph 25 that he is in receipt of similar WhatsApp contents, attributable to a third party and not himself.

Similarly, the Defendant failed to call the maker of ID-2 or otherwise have it converted through one of the exceptions to the rule against hearsay, for instance, through section 32(1) of the Evidence Act 1950.

The omission is common to both parties, and all the references and answers adduced through those documents would have to be discounted. In this regard, reference may be made to PP v. Datuk Hj Harun Hj Idris & Ors [1977] CLJU 92; [1977] 1 LNS 92; [1977] 1 MLJ 180, 183, where Abdoolcader J (as he then was) held: "it is necessary to refer to certain exhibits which has been put in the course of proceedings for identification but have not in fact been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely D41 and D43 which were both put in for identification only... as these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall accordingly disregard references to them and also all oral testimony as well adduced in relation thereto."

In equating the said paragraph 11 of the original Defence as an admission, the High Court had made a serious misdirection. It also relied on statements in the Defendant's affidavit mirroring its pleaded case and indicating that the Defendant held a leadership/administrative role within the WhatsApp Group. However, a leadership/administrative role does not equate to an admission of authorship or publication.

In the present case, the High Court had prematurely or erroneously shifted the burden of proof to the Defendant when the Plaintiff could not be said to have established a prima facie case.

It faulted the Defendant for not calling Siew and Wong. However, it was not the Defendant's burden to prove that he did not publish the defamatory statement, unless and until the plaintiff had first established a prima facie case by admissible evidence.

Where both parties rely on documents whose authenticity is disputed and doubted, and the maker or recipient of the original is not called, both cannot be said to have discharged their burden of proving their assertions.

In the case at hand, section 101, Evidence Act 1950 is instructive. It states: " (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist."

We are of the view that the Plaintiff had failed to discharge that burden of proof, and the High Court was plainly wrong in holding otherwise. The appeal ought to be allowed.

The decision of the High Court is thus set aside inclusive of the consequential and costs orders, and the Respondent is to pay RM50,000.00 costs to the Appellant subject to payment of the allocatur fee. Dated the $ 3 0^{\mathrm{th}} $ day of March 2026 SALINAN BENAR DARIPADA YANG ASAL (Lim Hock Leng) Judge Court of Appeal Malaysia RAFIZAH BINTI SAHAK Setiausaha Kepada YA Datuk Dr Lim Hock Leng Hakim Mahkamah Rayuan Malaysia MAHKAMAH RAYUAN PUTRAJAYA MALAYSIA Counsel for the Appellant Tiew Way Keng and Maizatul Akmal [Messrs Tiew & Associates, Kuala Lumpur] Counsel for the Respondent Karen Tan Ching Shi [Messrs Richard Tee & Chin, Kuala Lumpur]