LAU KOK GUAN @ LOW KOK GUAN v Cheah Chia Hsing (JA-22NCvC-70-05/2021)

This is a defamation action filed by the Plaintiff (“P”) against the Defendant (“D”) and a counter claim by D for tort of abuse of process against P.

At the end of the trial, after having heard counsel for both parties, this Court had dismissed both the claim and counter claim with parties were ordered to bear their own costs.

Parties have since filed their respective appeals to the Court of Appeal.

Hence, this is the Court’s grounds of judgment for the said decision. 14/02/2025 17:04:12 JA-22NCvC-70-05/2021 Kand. 84

This matter originated at the Sessions Court but was transferred to this Court by consent of both parties on 10.05.2021.

P was at the material time and still at present an advocate and solicitor of the High Court of Malaya, practicing in his own law firm in Johor Bahru, Johor.

D was at the material time, one of P’s pupils in his chambers. At present, D is also an advocate and solicitor practicing in a law firm somewhere in the Klang Valley.

D started her pupillage with P on 3.1.2019. According to D, it was P’s representation that he possesses extensive knowledge and skills in civil litigation that led D to apply to undergo her pupillage with P.

Not long after, D claimed that P did not fulfill his role as a pupil-master as she was actually since end of April 2019 obtaining all the necessary training under the guidance and tutelage of another advocate and solicitor lawyer, one Mr. R.

It transpired that Mr. R was often engaged by P’s firm to act as counsel to conduct P’s litigation cases. At the material time, Mr. R was practicing in his own legal firm elsewhere, also in Johor Bahru.

D further complaint about the type of work assigned to her by P which according to D were unrelated to legal work. Aggravating this 3 further was P’s action of also placing D under the supervision of one Mr. D, a former lawyer that his name had been struck off from the Bar Council’s roll of Advocates & Solicitors.

Due to the said dissatisfaction, D had her pupillage changed from being under P to Mr. R as her new pupil master starting from 08.05.2019. To that end, D had taken the necessary steps including filing of the relevant cause papers in her petition for admission as an advocate and solicitor.

P, although consented to D’s changed of master, but actually with reluctance.

P had expressed such reluctance initially with a letter dated 30.5.2019 sent to D, a copy of which was extended to the Bar Council. Subsequently, P sent another letter dated 14.06.2009, but this time directly addressed to the Bar Council. The contents of both letters would appear in essence as P’s complaints towards D pertaining to her pupilage.

On 20.06.2019, D reacted by officially lodged a complaint with the Advocates and Solicitors Disciplinary Board (“ADSB”), a disciplinary body established under the Legal Profession Act 1976, with allegations against P which form the subject matter of P’s defamation action against D in the instant matter.

Meanwhile, during the unfolding of the above events, D completed her pupilage on 11.10.2019 and her petition for admission was scheduled to be heard on 05.12.2019. On the other hand, at or 4 about the same time, P received a written notice from the ASDB on 25.11.2019 seeking his explanation to D’s complaint.

D then decided to withdrew her complaint against P via letter addressed to the ADSB dated 25.11.2019 and the same was communicated to P as well. P was also informed of the same by the ADSB on 26.11.2019.

While one may think that things could possibly de-escalate between parties since D withdrew her complaint against P, instead what happened was P decided to lodge a caveat against D’s petition for admission as an advocate & solicitor High Court of Malaya (“petition”) pursuant to Section 17 (1) Legal Profession Act 1976 at the Kuala Lumpur High Court (“caveat”). Naturally, D was unable to be admitted as an advocate & solicitor as previously scheduled on 05.12.2019.

As expected, D filed an application to set aside the caveat. The parties then had exchanged their respective affidavits for the hearing of the application.

Both the petition and the application for removal of the caveat were transferred by the Kuala Lumpur High Court to the Johor Bahru High Court on 30.12.2019. The matters were then schedule for hearing on 27.02.2020 where it was also attended by representatives from the Attorney General’s chambers, Malaysian Bar Council and the Johor Bharu State Bar Committee apart from P and D respectively.

On 27.02.2020, at the outset of the hearing of the caveat, P and D entered into a consent judgment (“CJ”) on the following terms which is reproduced here: - “1. The petitioner hereby apologies to the caveator: - “I, Cheah Chia Hsing, hereby apologise to Mr Lau Kok Guan for lodging the Complaint to the Disciplinary Board, and any inconvenience caused is regretted. I agree to withdraw my complaint with the Disciplinary Board, which was lodged with no malicious intent.

The Caveator shall not file any Caveat against the Petitioner for admission and entry as an Advocate and Solicitor in the High Court of Malaya, following the withdrawal of the complaint that was lodged with the Advocates & Solicitors Disciplinary Board.”. [22] With there being no bar to D’s petition, she was eventually admitted as an advocate & solicitor High Court of Malaya on 04.06.2020. [23] Subsequently, a letter of demand (LOD) was then issued by P against D in relation to the said letter which P alleges to be defamatory in nature and made with malice. [24] P further demanded for RM1,000,000.00 in damages apart from publication of an apology by D with all mainstream media for lodging a complaint against P at the ADSB. [25] When D refuted these claims and did not accede to P’s demand, P then instituted the present suit against D while D counter-claimed against P. [26] That much would constitute the facts of the case relevant to the deliberation of this Court. Preliminary point of law - Issue of Res Judicata and Estoppel [27] Before the merits of P’s claim and D’s counter-claim and their respective defence are considered, a preliminary point was raised by D that is whether P’s claim is sustainable since parties have previously entered into the CJ on the terms as reproduced above. [28] In other words, D contends that P is estopped from maintaining the present suit due to the CJ. [29] This Court would in the same breath also consider whether the CJ estop D’s counter-claim too. [30] In a wider sense, this Court must determine whether res judicata or estoppel applies in relation to both P and D’s respective claims against each other. [31] As mentioned above, the CJ came about as a result of the caveat by P which hindered the admission of D as an advocate & solicitor under the latter’s petition. [32] A perusal of D’s application to set aside the caveat reveals that the caveat was premised on P’s contention that D had defamed P in the said letter of complaint to the ADSB. This could be seen in P’s affidavit in-support for the caveat - refer paragraph 4, page 117-118 Enclosure 12. Refer also to paragraph 1, pages 124-125 Enclosure 12 which is the caveat entered under Section 17 (1) Legal Profession Act 1976 where the said letter was once again categorized by P as wild allegations bereft of any merit. [33] D’s counter-claim was also mirrored in her application and affidavit in support to set aside the caveat (refer to paragraph 59-page 45 Enclosure 12) where she maintained that the caveat disabled her from obtaining gainful employment in Johor Bharu, had caused her unnecessary problems and preventing her from being employed in Johor Bharu in order to sustain her family. D has also maintained in her caveat application about P’s actions being a collateral attach on Mr. R which is also mirrored in her counter-claim. [34] The matter relating to the caveat has already been put to rest when the CJ was entered on the terms agreed on by parties on 27.02.2020. In my view, the effect of the CJ is to preclude parties from litigating once again the issues previously disputed between them which in this case refers to the said letter including all the surrounding circumstances relating to the caveat as averred in the respective parties’ affidavit. [35] As such, it is my view considered that res judicata in its wider sense would act as an estoppel to bar the P from further bringing the same facts as the basis of his defamation claim against D in the instant action and similarly, what is good for the goose must also be good to the gander, the same res judicata and estoppel must be made as a bar to D from making a counter-claiming against P. [36] On the issue of res judicata, this Court refers to Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] 2 MLJ 133 where the Federal Court held that: - “[43] So, even if res judicata is not applicable to bar Encl 1, it still cannot stand if it is found to be an abuse of the process. The question is it an abuse of the process? [44] This brings into focus again the approach on the determination of an abuse of the process distilled from the speech by Lord Bingham in Johnson, which we apply. The approach should be:

broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. [45] The 'merits' in the phrase 'broad merits-based judgment' were not the substantive merits or otherwise of the actual claim, but those relevant to the question whether the claimant could or should have brought his claim as part of the earlier proceeding (see Stuart v. Goldberg Linde (a firm) and others[2008] 1 WLR 823 at p 840, per Lloyd LJ). [46] We should also bear in mind that one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”. [37] As could be seen, D’s counter-claim contains the same issues ventilated in her attempt to set-aside the caveat application. P’s caveat application similarly was based on the said letter which is the subject matter of P’s claim against D for defamation. [38] Parties having already entered into a CJ could not now be allowed to pursue their respective claims in the present case as that would tantamount to permitting both P and D to have a second bite on a matter already concluded between themselves through the CJ. Refer to Normah Bt Awang Had (Suing as the administrators/ executors of the estate of Tan Sri Dato’ Dr. Awang Had bin Salleh, deceased) & Ors v Dato’ Dr Hj Mohamed Haniffa Bin Hj Abdullah [2016] 5 MLJ 754 (Court of Appeal): - “[23] The rule relating to an abuse of process is thus two fold. The first relates to those points which were actually decided by the court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second sense is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions; it being in the public interest that there should be an end to litigation; the court will stay or strike out the subsequent action as an abuse of process (per Lord Wilberforce in Brisbane City Council vA-G for Queensland [1979] AC 411).”. [39] This court is also mindful that it must achieve a balance between both parties’ right to have access to the courts and to avoid any party to a litigation to seek to escape from any ruling or previous findings made. Refer to McCauley v McDermott 1 ILRM 486 (High Court) page 498: - “In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgment to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled again by a law suit which has already been decided.". [40] There would be no finality to litigation should P and D be allowed to ventilate their respective claims again. At the same time, it appears that P and D would be prosecuting their claim on installments thus making it clear that there is a duplicity of proceedings here between the caveat matter and the present case. [41] The subject matter of P’s claim (defamation) and D’s counter-claim (tort of abuse of process etc) in the present case have also been fully disclosed through each party’s affidavits or the purpose of the caveat matter and for reasons best known to the parties, had been settled via the CJ. Refer to Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (House of Lords): - "... where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”. [42] Further, if P’s claim and D’s counter-claim are allowed to continue, that would be akin to a collateral attack on the CJ which must thus be disallowed by this court. Refer to Tractors Malaysia Bhd v Charles Au Yong [1982] 1 MLJ 320 (Federal Court): - “In our judgment the Malacca action is tantamount to a collateral attack upon a final decision of a Court of competent jurisdiction. Since writing this judgment we have come across a decision of the House of Lords on this very point in Hunter v. Chief Constable of the West Midlands Police[1981] 3 WLR 906 where a civil case was started obviously to try to overrule a decision of a criminal court. There Lord Diplock said at page 914: My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the present case. He then cited with approval the following passages as expressing the principle to be followed by the Courts: ... the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court. (per AL Smith LJ in Stepbenson v. Garnett [1898]

QB 677, 680-681). ... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ". (per Lord Halsbury LC in Reichel v. Macgrath [1889] 14 App. Cas. 665, 668).”. [43] On the basis of res judicata that also ultimately led to estoppel to be applied to both parties, this court would dismiss P’s claim and D’s counter-claim in the matter instant. Refer to Section 25 (2) Court of Judicature Act 1964: - "Power to dismiss or stay proceedings where the matter in question is res judicata between the parties or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued.”. [44] Be that as it may, in the event this Court is in error for making such finding or decision, the followings are the reasons on the merits of both parties’ claims. Whether the statement of claim is defective [45] The said letter, which P alleges to be defamatory, is without dispute in the English language. [46] P’s statement of claim contains an entire reproduction of the said letter in its original form which is in the form of an exhibit. Not only that, the statutory declaration affirmed by P and her complaint letter form to the DB was also reproduced in its original form in P’s statement of claim. [47] In other words, P pleaded evidence instead of facts. What P should have done was to plead the alleged defamatory statements in its exact terms. It is trite law that evidence (the said letter, complaint records of ASDB and D’s statutory declaration) need not be pleaded in a pleading. Refer to Subramaniam Muniandy v Letchumi Thasan & Ors [2021] 5 CLJ 331 (Court of Appeal): - “We are aware that the third respondent had contended that the appellant did not plead the failure of the former to record his name in the register. But we are of the considered opinion that the appellant had clearly pleaded he did not sign the PA. Thus, the fact that there was failure to record his name in the register, was still a matter well connected to the pleaded facts and also evidence to show that he had not signed the PA. After all, it is trite that evidence need not be pleaded. In the case of Dato' Gopal Sri Ram v. Dato' C Vijaya Kumar & Ors [2006] 1 LNS 377; [2006] 6 MLJ 328 it was held as follows: There are at least two reasons why the fundamental rule of pleading requires only concise facts be pleaded and not evidence. Firstly, by pleading evidence rather than a concise statement of fact, there is a likelihood of compromising the neutrality of the judge consciously or subconsciously before he hears the evidence. Secondly, a statement by a party purporting to state evidence rather than concise fact may well be erroneously assumed to be true by others, even before its truth is ascertained by a judge after assessing evidence presented.”. [48] What is more damaging is the absence of a certified translation of the said letter in the national language in P’s statement of claim. This is a mandatory requirement of the law and P’s own attempt to translate and reproduce the defamatory statements in the said letter is against trite law that goes to the root that made it impossible to be cured for the purpose of the trial that had been concluded. [49] In this regard, Order 92 Rule 1 Rules of Court 2012 states: - “1. Language of documents (O. 92 r. 1)

Subject to paragraph (2), any document required for use in pursuance of these Rules shall be in the national language and may be accompanied by a translation thereof in the English language, except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) shall be prepared in accordance with rule 6(5) of that Order: Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.” [50] The word “shall” appears in Order 92 Rule 1 Rules of Court 2012 making it mandatory for any document required to be used (in this case the said letter issued by D) to be in the national language. Refer to State of Uttar Pradesh v Babu Ram AIR [1961] SC 751 (Indian Supreme Court) page 765: - “(29) The relevant rules of interpretation may be briefly stated thus: when a statute uses the word "shall", prima facie it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature of design of the statute, and the consequences which would follow from construing it one way or another, the impact of other provisions whereby the necessity of complying with provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of non-compliance with the provisions is or not visited by some penalty, the serious or trivial consequences that flow therefore, and above all, whether the object of the legislation will be defeated or furthered.”. [51] Refer to Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523 (High Court): - “The authorities are manifest in their approach that it is fundamental that the exact words as uttered (by the first defendant in this case) must be reproduced in the original language with a certified translation in the language of the court, in the absence of which the claim will fail.”. [52] Refer also to Mabel Sheela Victor Muttiah v Clare Louise Brown [2024] 9 CLJ 884 (High Court): - “Having equipped myself with all those authorities in dealing with this issue, it is hereby my finding that, although some of the arguments made by the plaintiff appear to be providing some serious issues for consideration, and the fact that no party, particularly the defendant, is prejudiced by the failure to translate the first impugned defamatory article into Bahasa Melayu, I am unable to escape the fact that such strict compliance is mandatory for all pleadings filed in court. In my opinion, the requirement for complete pleadings in Bahasa Melayu is tritely attributed to the language's supremacy as a national language. In this regard, the relevant provisions are enshrined in art. 152 of the Federal Constitution as well as s. 8 of the National Language Act 1963/67 and O. 92 r. 1 of the ROC. [36] I also find that despite the plaintiff's argument that the meaning and wordings of such an article have been translated into Bahasa Melayu, I find that they are merely an inference that the plaintiff draws as to the true meaning of the first impugned defamatory article. To put it simply, there was still no certified translation of the first impugned defamatory article into Bahasa Melayu.”. Whether P has successfully made out a defamation case against D [53] Now, even if the pleading and language issue as pointed above are not fatal to the P, this court will also have to consider whether the said letter and the words contained in it is defamatory. [54] In a claim for defamation, it is trite law that the plaintiff has to prove the following elements namely: -

That the Defendant’s words have defamatory imputations;

The Defendant’s words refers to the Plaintiffs and;

The Defendant’s words were published to a third party. [55] Reference in this context may be made to Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729 (Federal Court) page 743: - “[29] Defamation is committed when the defendant publishes to a third person words or matters containing untrue imputation against the reputation of the plaintiff. Liability for defamation is divided into two categories, that of libel and slander. If the publication is made in a permanent form or is broadcast or is part of a theatrical performance, it is libel. If it is in some transient form or is conveyed by spoken words or gestures, it is slander (see: Gatley on Libel and Slander, 9th edn at p. 6). [30] In Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321, His Lordship Mohamed Dzaiddin J (as he then was) has clearly laid down the necessary procedure in establishing claim for libel (with which we agree), when he said at p. 155: 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 express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged: Rajagopal v. Rajan. In other words, the plaintiff must prove three elements of the tort of defamation, which are:

the plaintiff must show that the statement bears defamatory imputations;

(ii) the statement must refer to or reflect upon the plaintiff's reputation; and

(iii) the statement must have been published to a third person by the defendant.”. [56] On the issue of publication, the Federal Court in Raub Australian Golden Mining Sdn Bhd held that the defamatory statement must be made known by the defendant to some other person other than the plaintiff. At page 745, The Federal Court held: - “The final element that the plaintiff must prove is that the words of which he complains have been published to any third party by the defendant. As stated by Lord Esher MR in the case of Hebditch v. Macilwaine [1894] 2 QB 54 (at p. 58): The material part of the cause of action in libel is not the writing, but the publication of the libel. “Publication" means making the defamatory statement known to some other person other than of whom it is written or spoken. The statement must be published to a third party (see: S Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771; [1988] 1 CLJ (Rep) 233). The uttering of a libel to the party libelled is no publication for the purpose of a civil action (see: Wennhak v. Morgan [1888] 20 QBD 634). The fundamental principle is that the statement must be communicated to a third party in such manner as to be capable of conveying the defamatory imputation about the plaintiff (see: Gatley on Libel and Slander, 9th edn at p. 134).”. [57] On the issue whether the alleged defamatory words in the said letter were referring to P, the Federal Court in Raub Australian Golden Mining at page 744 held that: - “Assuming the plaintiff in a defamation suit has shown that the words bear some sort of defamatory imputation, he must then proceed to establish that the defamatory words in question were published of and concerning him. The words must be capable of referring to him or of identifying him. On this point, the Privy Council in the case of Knupffer v. London Express Newspaper Limited [1944] AC 116, had this to say: It is an essential element of the cause of action for defamation that the words complained of should be published "of the plaintiff", where he is not named the test of this is whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to. The question whether they did so in fact does not arise if they cannot in law be regarded as capable of referring to him.”. [58] In the present case, there is no doubt that the content of the said letter refers to P. However, more crucial to that is whether the words in the letter are defamatory in the first place. [59] Having analysed the words in the said letter, this court finds it as not being defamatory because of the application of qualified privilege as a defence to D. [60] As a starting point, refer to Reynolds v Times Newspapers Ltd & Others [1999] 3 WLR 1010 (House of Lords) page 1050: - “At the heart of the matter is the question whether "the occasion" is privileged. This occurs where the person who makes the communication has an interest or duty to make it to the person to whom it was made, and the person to whom it is made has a corresponding interest or duty to receive it.”. [61] Refer also to Dr Chong Eng Leong v Tan Sri Harris Bin Mohd Salleh [2017] 10 CLJ 657 (Court of Appeal): - "[55] Now, what is qualified privilege as a defence in a defamation suit? Essentially, it is a defence that is available to a Defendant whereby the Defendant as the person communicating the defamatory statement usually has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. [56] Whether an impugned statement qualify for protection under this defence of qualified privilege would depend on the surrounding circumstances of the particular case. The essential elements that must however be present are a duty on the part of the Defendant to state it and the corresponding duty on the part of the public to whom it was communicated via the publication, to receive it.". [62] For a defence of qualified privilege to succeed, the occasion must be one where the person making the communication has an interest or duty to make it and the person receiving it has a corresponding interest or duty to receive it. It is the occasion not the communication of the statement or words which is relevant for this defense to be successfully applied. Refer to Dato Dr Low Bin Tick v Datuk Chong Tho Chin & Ors [2017] 8 CLJ 369 (Federal Court) page 387: - “Qualified Privilege depends on the occasion upon which the communication is made, not the communication itself. A qualified privilege occasion is an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. If the communication were made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving it, the occasion is said to be one of qualified privilege, Whether an occasion is a privileged occasion depends on the circumstances of each case, the nature of the information and the relation of speaker and recipient. It is for the judge alone to determine as a matter of law whether the occasion is privileged (Adam v. Ward [1917] AC 309; [1916-17] All ER Rep 157).”. [63] However, the existence of malice would however defeat the defense of qualified privilege. Refer to page 390 of the Federal Court decision Datuk Dr Low Bin Tick: - "The prima facie defence of qualified privilege is not available if it is shown that a defendant has been actuated by actual or express malice, or if he has used the occasion for some indirect or wrong motive. In Royal Aquarium & Summer and Winter Garden Society v. Parkinson [1892] 1 QB 431 Lopes IJ said: Not only must the occasion create the privilege, but the occasion must be made use of bona fide, and without malice. The defendant is only entitled to the protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose. He is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motive.”. [64] Datuk Low Bin Tick’s case is almost similar to the present case where the Federal Court held that a letter sent by a president of a sports association to the Malaysian Bar Council for its attention a complaint which he has sent to the ASDB is covered by qualified privilege. This is so since the Appellant is responsible for the proper conduct and management of the association. The Malaysian Bar Council on the other hand has a duty to receive the letter from the Appellant concerning the Respondent since the latter is an advocate and solicitor being the governing body of the affairs of advocates and solicitors. [65] In the present case, the said letter was prepared by D which contains numerous complaints which according to her constitute misconducts committed by P. Section 99 (1) Legal Profession Act 1976 accordingly equates the complaints as in the said letter with misconduct. Refer to Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] 5 CLJ 139 (Federal Court): - “[29] In interpreting or construing any document, as in the letter of complaint in this case, to obtain the intent and purpose of the same, Courts must read that document in its entirety. That is trite law. Taking that approach, we have no hesitation in concluding that the letter of complaint was in fact a complaint meeting the requirement of s. 99(1) of the LPA and our reasons are these. [30] Firstly, one must not lose sight of the fact that complaints made under the LPA are mostly made by laypeople and if one is to take a strict and narrow approach in determining whether a letter written by someone not well versed to legalism would in our view defeat the purpose of the LPA which undoubtedly is a piece of legislation aimed to ensure complainants' access to justice is not unduly hampered. [31] Secondly, we must give some meaning to the heading of letter of complaint which simply reads "COMPLAINT". It also begs the question - "why should the complainant write to the DC in the first place? The answer surely is that the only intent is to make a complaint relating to the alleged misconduct of the Respondent. As to how the complaint is framed, they should not be construed in a manner which may make one's constitutional right to access to justice erroneous. Hence with respect there was no necessity to seek solace in the Oxford Dictionary to determine what the word "complaint" means in the context of the LPA.”. [66] D certainly has an interest in that as a pupil of P, she has a legitimate expectation to be guided by an advocate & solicitor of good standing and stellar character. [67] D’s interest is furthermore concerns with her admission as an advocate & solicitor High Court of Malaya. When there was a refusal by P (as D’s former pupil master) to insert his signature to the certificate of due-diligence which is a pre-requisite to being admitted as an advocate & solicitor, there is a genuine possibility that she might not be able to be admitted as an advocate & solicitor thus makes it necessary for her to seek redress where one of those is by lodging a complaint with the ASDB as she had done accordingly. [68] Certainly, ASDB is statutorily empowered to inquire into the said complaints pursuant to Section 100 Legal Profession Act 1976. That ASDB is the body created by statute to govern disciplinary proceedings concerning advocates & solicitors can be referred to under Section 93 Legal Profession Act 1976. Refer also to Tan Sri Dr Muhammad Shafee Abdullah v Tommy Thomas & Ors [2021] 10 CLJ 1 (Federal Court): - “From a plain reading of the provision, it is clear that Parliament's intention in enacting s. 99(1) was to leave it entirely to the Disciplinary Board to deal with all matters concerning the conduct of advocates and solicitors or pupils, hence the direction in imperative terms that the complaint "shall" in the first place be made or referred to the Disciplinary Board. This is to ensure that the disciplinary process is not contaminated by any premature finding of guilt in whatever form by any other body before the complaint is brought before the Disciplinary Board. There is nothing in the LPA that gives the Malaysian Bar the right to place before the floor of the AGM any complaint concerning the conduct of an advocate and solicitor by way of a motion under s. 64(6). In fact, it points in the opposite direction.”. [69] It must be also noted that the said letter constitutes an official complaint under Section 99 (1) Legal Profession Act 1976 which reads as follows: - “1) Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall in the first place be made or referred to the Disciplinary Board which shall deal with such complaint in accordance with such rules as may from time to time be made under the provisions of this Part.”. [70] With D exercising her right to lodge a complaint as granted by statute, it is mind boggling to suggest that the said complaints are defamatory. There is no ambiguity to that end since the language used is clear. Refer to Tan Sri Dr Muhammad Shafee Abdullah: - “There is no ambiguity in s. 99(1). It provides in very clear language that any complaint, meaning every complaint, concerning the conduct of any advocate and solicitor or of any pupil, must be made in writing and shall "in the first place" be made or referred to the Disciplinary Board. It does not say that the complaint must first be made to or through the Malaysian Bar.”. [71] Furthermore, there is no evidence whatsoever concerning the existence of any actual or express malice on D’s part when she made the complaint via the said letter to the ASDB. In this regard, the said letter being confidential in nature was never published for public consumption or revealed at any time to the public at large by D. [72] On that score, this Court if of the view that D had acted within the boundaries of the law and had resorted to lodging her complaints via the said letter with the ASDB which is rightful body to receive the complaints under the Legal Profession Act 1976. In short, P fails to proof malice on the part of D. [73] Next, a perusal of P’s Statement of Claim reveals allegations concerning Mr. R’s role in seemingly orchestrating the entire conduct of D with a view to harming P’s reputation. [74] In fact, the Statement of Claim is full of various events purportedly done by Mr. R against P and P’s dispute with him which even resulted in legal suits being instituted involving both of them. [75] In short, it appears that P’s case is predicated on Mr. R being purportedly the puppeteer who controls every action and conduct of D. [76] Interestingly, Mr. R was never named as a co-Defendant or even called to give evidence during the trial. [77] At this juncture, this Court had faced some difficulties in ascertaining the tenure and the exact focus of P’s claim. While P’s claim for defamation could not be sustained as per above, the question arising is whether P had made out a claim against D and Mr. R for conspiracy to defame P?. [78] Being a form of conspiracy to injure, P needs to fulfill the following requirements as decided by Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd & and another appeal [2016] 3 CLJ 676: - “To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy which is part of what are known as the "economic torts". There are four elements to a conspiracy claim:

a combination or agreement between two or more individuals;

(ii) an intent to injure;

(iii) pursuant to which combination or agreement, and with that intention, certain acts were carried out; and

(iv) resulting loss and damage to the claimant”. [79] It would also be pertinent for P to plead the facts that can point to an agreement between Mr. R and D to conspire against P and state precisely what is the exact purpose of such conspiracy. P must also clarify the overt acts done by Mr. R and D in pursuance and in furtherance of the said conspiracy. Refer to Renault Sa v Inokom Corporation Sdn Bhd & Anor and Other Applications [2010] 5 CLJ 32 (Court of Appeal): - “It is to be noted that besides the absence of allegations of overt acts on the part of TC Euro the statement of claim has also failed to plead the agreement between the defendants to conspire and state precisely what was the purpose or what were the objects of the alleged conspiracy. The statement of claim has also failed to set forth with clarity and precision the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy.”. [80] Returning to the present case, it is this Court’s findings that P’s Statement of Claim lacks the factual allegations to establish the agreement between Mr. R and D to conspire against P in the first place as required by Cubic Electronic. [81] Next, the exact purpose of the alleged conspiracy between D and Ravi G is also not explained in the Statement of Claim. The overt acts done purportedly by Mr. R together with D are also not stated sufficiently in the Statement of Claim as underlined by Renaul SA. Furthermore, the Statement of Claim is once again lacking in linking the alleged conspiracy and the overt acts done namely whether the overt acts are in furtherance or pursuant to the alleged conspiracy. [82] It is also unclear if any conspiracy, even if it exists, is a conspiracy to perform an unlawful act under criminal or civil law or a conspiracy to perform a legal act with the sole dominant purpose of injuring P as underlined by Cubic Electronic. [83] Thus, it is this Court’s considered view that P has failed to proof a case of conspiracy to injure against D. Whether D has proven counterclaim [84] Lastly, this Court would consider whether D has on a balance of probabilities proven her counterclaim. The counter-claim in this regard alleges that P commenced the defamation suit against D by abusing the court process with a collateral purpose namely to smear Mr. R’s reputation and also to disrupt D’s life. [85] D’s counter-claim also centers on mental distress caused by P and P causing injury to her livelihood. [86] With regards to the tort of abuse of process, refer to Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 (Court of Appeal): - “In my judgment the essential elements of the tort of abuse of process are these:

The process complained of must have been initiated;

The purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be collateral, that is to say, aimed at producing a result not intended by the invocation of the process;

The plaintiff must have suffered some damage or injury in consequence.”. [87] The focus of tort of abuse of process would be on the perversion of the legal process for an improper purpose. Refer to Goldsmith v Sperrings Ltd [1977] 2 ALL ER 566 (Court of Appeal) page 574: - “What may make it (the legal process) wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself then it is a wrong known to the law.”. [88] In other words, the emphasis of the tort of abuse of process is on the misuse of the legal process by a person for an improper purpose. Refer to Cramford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 266: - "63 What is an improper purpose? A helpful metaphor suggested by Isaacs J in the High Court of Australia in Varawa v. Howard Smith Co Ltd [1911] 13 CLR 35, 91, is that of a stalking-horse: "If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim on which the court is asked to adjudicate they are regarded as an abuse of process for this purpose..." The metaphor aids resolution of the conundrum raised by the example of a claimant who intends that the result of the action will be the economic downfall of the defendant who may be a business rival or just an enemy. If the claimant's intention is that the result of victory in the action will be the defendant's downfall, then his purpose is not improper: for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it. If, on the other hand, his intention is to secure the defendant's downfall—or some other disadvantage to the defendant or advantage to himself—by use of the proceedings otherwise than for the purpose for which they are designed, then his purpose is improper. See the discussions in the joint judgment in the High Court of Australia of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v. Spautz [1992] 174 CLR 509, paras 34-36, and also in Winfield & Jolowicz on Tort, 18th ed (2010), para 19-14.". [89] Returning to the present case, based on Malaysia Building Society, it is undisputed that P commenced a defamation suit against D. [90] However, D has failed to adduce satisfactory evidence to show that this defamation suit was instituted for some improper purpose as per Goldsmith. [91] While D’s counter-claim contained allegations that P was spurred on motivation to seek revenge against D and to disrupt her live, these allegations were not supported by evidence. [92] On D’s assertion that P’s defamation suit was intended as a collateral attack on Mr. R with a view to damaging his reputation, not much weight can be attached to this assertion in the absence of compelling evidence to support it. Furthermore, as pointed out above, Mr. R was not called to give evidence nor was he named as a party in the present case. [93] On the basis of Malaysia Building Society, there is no sufficient and cogent evidence before this Court that P’s defamation suit is a mere collateral while the dominant purpose is to injure Mr. R’s reputation or to gain revenge against D. As such, D’s counter claim for tort of abuse of court process must be dismissed. [94] Moving on to D’s claim that P has caused her mental distress, D claimed in her evidence that she had felt a lot of uncertainty as a result of her delayed admission as an advocate & solicitor High Court Malaya due to the caveat. As a result, D claims her future career is placed in jeopardy and she had suffered mental depression, emotional stress, insomnia and embarrassed. The embarrassment resulted in her being treated with contempt by her peers in the legal fraternity. [95] The allegations above to this Court’s mind are bare assertions unsupported with evidence, that means they are not sustainable and falls short of proving that D had suffered mental distress caused by P. Refer to Bonham-Carter v Hyde Park Hotel, Ltd [1948] 64 TLR 177 (Court of Appeal) page 178: - “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it.”. [96] Furthermore, with the absence of concrete evidence in the form of medical reports or evidence of experts to proof D was indeed suffering from all the mental ailments as per her evidence, there is uncertainty whether she was actually inflicted with these mental ailments or otherwise. Refer to Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635 (High Court): - "... A word now about general principles. When a plaintiff claims from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant's wrong, and also that the damages are not too remote to be recoverable. The principle of remoteness of damage is a limiting principle of policy and the principles applicable in contract and tort are not the same (see Koufos v. Czarnikaw Ltd (The Heron II) [1969] 1 AC 350). … "(6) It is axiomatic that a plaintiff seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover the damages. If he proves neither, the action will fail or he may be awarded only nominal damages upon proof of the contravention of a right. Thus, nominal damages may be awarded in all cases of breach of contract. And, where damage is shown but its amount is not proved sufficiently or at all, the court usually decrees nominal damages.”. [97] On D’s claim that P had injured her livelihood, the same rejection would apply since a perusal of D’s evidence shows nothing to substantiate her claim in this regard. While this Court understood that there was a delay in D’s admission as an advocate & solicitor of about approximately six (6) months, this mere fact without more could not be taken to have injured D’s livelihood. [98] D has explained that she has relocated to Kuala Lumpur as a result of her falling out with P as she was unable to commence legal practice in Johor Bharu. On this, there was again no evidence before this Court on whether D had been turned down of her attempts to gaining employment in Johor Bahru as a result of P’s defamation suit. As such, there is uncertainty once again on the alleged injury to D’s livelihood as alleged. [99] D’s counter claim in general is also without merit since there is actually no causal or direct link between the losses incurred or expenses incurred allegedly by D and the act and/ or omissions of P. [100] Refer to Refer to Deepak Jaikishan a/l Jaikishan Rewachand & Anor v Intrared Sdn Bhd [2013] 7 MLJ 437 (High Court): - "[199] … Before doing so however it is relevant to reiterate that in order to succeed in their claim for damages, the plaintiffs should be able to show causation or a causal connection or factual link between the breach and the losses they have suffered. Causation [200] Chitty on Contracts (29th Ed), at para 26-029 provides, inter alia, that: Requirement of a causal connection. The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must first be proved; there must be a causal connection between the It for a loss only where the breach of contract was the 'effective' or 'dominant' cause of that loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the claimant's loss. The answer to whether the breach was the cause of the loss or merely the occasion for the loss must 'in the end' depend on 'the court's common sense' in interpreting the facts…(see also Robertson Quay Investment Pte Ltd v. Steen Consultants Pte Ltd and another [2008] SGCA 8 TAB 23; and Popular Industries Limited v. Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; [1989] 3 MLJ 360).". [101] Refer to Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2016] 8 CLJ 211 (Federal Court): - “[51] As to damages, it is settled law that in order for SCCSB to succeed in its claim SCCSB must show that the loss and damages is due to the breach of contract by PKNS. Once that is established, SCCSB has the additional burden of proving the damages. The law on the recovery of damages has been succinctly enunciated by Ramly Ali J (now FCJ) in PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] CLJU 679;[2009] 7 MLJ 681 at p 697. It may be summarised into two main principles:

the burden of proof is on the party seeking the claim to prove the facts and the amount of damages Hock Huat Iron Foundry (suing as a firm) v. Naga Tembaga Sdn Bhd [1999] 1 CLJ 89; [1999] 1 MLJ 65 (CA); Bonham-Carter v. Hyde Park Hotel Ltd [1948] 64 TLR 177; Popular Industties Limited v. Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; [1989] 3 MLJ 360 and Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 1 CLJ 611; [2007] 2 MLJ 229 (CA)); and

the damages must be proved with real or factual evidence. Mere particulars, summaries, estimations or general conclusions will not suffice (Lee Sau Kong v. Leow Cheng Chiang [1960] CLJU 56; [1961] 1 MLJ 17 (CA)).”. (emphasis added) [102] Accordingly, D’s counter-claim is dismissed. Conclusion [103] As a conclusion, P’s claim against D is dismissed. [104] On the same note, D’s counter-claim against P is dismissed. [105] Parties to bear their own costs. Dated: 12th FEBRUARY 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Parties: Ong Kow Meng & Raw Kim Hwa Messrs K.M. Ong, Lee & Co Solicitors for the Plaintiff No 122B, Jalan Sri Pelangi, Taman Pelangi 80400, Johor Bharu, Johor Darul Takzim G. Nanda Goban & Tan Chee Ying Messrs Goban & Company Solicitors for the Respondent L12-12, Menara Sentral Vista 150, Jalan Sultan Abdul Samad 50470, Kuala Lumpur Cases referred to: 1 Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] 2 MLJ 133 (Federal Court) 2 Normah Bt Awang Had (Suing as the administrators/ executors of the estate of Tan Sri Dato’ Dr. Awang Had bin Salleh, deceased) & Ors v Dato’ Dr Hj Mohamed Haniffa Bin Hj Abdullah [2016] 5 MLJ 754 (Court of Appeal) 3 McCauley v McDermott 1 ILRM 486 (High Court) page 498 4 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (House of Lords) 5 Tractors Malaysia Bhd v Charles Au Yong [1982] 1 MLJ 320 (Federal Court) 6 Subramaniam Muniandy v Letchumi Thasan & Ors [2021] 5 CLJ 331 (Court of Appeal) 7 State of Uttar Pradesh v Babu Ram AIR [1961] SC 751 (Indian Supreme Court) 8 Lim Kit Siang v Datuk Dr Ling Liong Sik & Ors [1997] 5 MLJ 523 (High Court) 9 Mabel Sheela Victor Muttiah v Clare Louise Brown [2024] 9 CLJ 884 (High Court) 10 Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729 (Federal Court) 11 Reynolds v Times Newspapers Ltd & Others [1999] 3 WLR 1010 (House of Lords) 12 Dr Chong Eng Leong v Tan Sri Harris Bin Mohd Salleh [2017] 10 CLJ 657 (Court of Appeal) 13 Dato Dr Low Bin Tick v Datuk Chong Tho Chin & Ors [2017] 8 CLJ 369 (Federal Court) 14 Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] 5 CLJ 139 (Federal Court) 15 Tan Sri Dr Muhammad Shafee Abdullah v Tommy Thomas & Ors [2021] 10 CLJ 1 (Federal Court) 16 Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd & and another appeal [2016] 3 CLJ 676 17 Renault Sa v Inokom Corporation Sdn Bhd & Anor and Other Applications [2010] 5 CLJ 32 (Court of Appeal) 18 Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 (Court of Appeal) 19 Goldsmith v Sperrings Ltd [1977] 2 ALL ER 566 (Court of Appeal) 20 Cramford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 266 21 Bonham-Carter v Hyde Park Hotel, Ltd [1948] 64 TLR 177 (Court of Appeal) 22 Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635 (High Court) 23 Deepak Jaikishan a/l Jaikishan Rewachand & Anor v Intrared Sdn Bhd [2013] 7 MLJ 437 (High Court) 24 Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2016] 8 CLJ 211 (Federal Court) Legislation referred to: 1 Section 25 (2) Court of Judicature Act 1964 2 Order 92 Rule 1 Rules of Court 2012 3 Section 93, 99 (1), 100 Legal Profession Act 1976