Lau Yun Zhen v James Soo Ya Ge (JB-12B-2-10/2024)

This is an appeal from the Defendant against the Kluang sessions court’s decision in allowing the Plaintiff’s claim for defamation and awarding a sum of RM 80,000.00 as global damages. It concerns defamation claim against the Defendant in respect of three (3) alleged defamatory acts, all of which centered around accusations that the Plaintiff allegedly committed sexual harassment against three (3) students, which are referred to as follows: a. ‘First Impugned Statement’ - oral defamation (slander) involving the Defendant’s dissemination of accusations that Plantiff had sexually harassed three (3) students. b. ‘Second Impugned Statement’ - defamation via publication on Facebook, comprising further defamatory statements reinforcing and/or referring to the same accusations, published by Defendant on his personal Facebook; and c. ‘Third Impugned Statement’ - written defamation via letter publication, involving a letter dated 15.5.2018 sent by Defendant to the Headquarters of Briged Pulera Malaysia, repeating the defamatory and false accusations against the Plaintiff.

The Defendant relied on three (3) principal defenses, namely: - a. Justification; b. Fair comment; and c. Qualified privilege

Briefly, the trial Judge found the Defendant to have made the three defamatory statements containing false and untrue allegations amounting to defamation, the defamatory statements when read as a whole, were found to refer to Plaintiff and the defamatory statements were published and /or disseminated to third parties and the defenses of justification, fair comment and qualified privilege were not established. The trial Judge found the Plaintiff has successfully proven his claim, entitling him to damages which were assessed as follows; i. Global damages in the sum of RM 80,000.00. ii. Interest at the rate of 5% on the judgement sum amount from the date of the judgment until full settlement. iii. Costs in accordance with the applicable scale; and iv. The claims for special, aggravated and exemplary damages were dismissed.

The Defendant’s grounds of appeal broadly can be summarized as follows: a. The trial Judge failed to recognize that the Plaintiff had not proven the actual impugned words. b. The trial Judge failed to give sufficient judicial appreciation to the Defendant’s defense. c. The trial Judge was wrong in accepting evidence marked as ID by applying Section 73 A (2) Evidence Act 1950. d. The trial Judge was wrong in awarding excessive and exorbitant sum.

Whether the Trial Judge was correct in law and facts in arriving at his decision.

It is a long-settled principle that an appellate court should not interfere with a Trial Judge’s conclusions on primary facts unless satisfied that the Trial Judge was ‘plainly wrong’. The reasons justifying appellate intervention extend beyond the Trial Judge’s privileged position to assess the credibility of witnesses and include the Trial Judge’s particular expertise in determining factual issues and duplicating the Trial Judge's efforts on appeal would be undesirable, considering considerations of cost and delay. Further guidance can be derived from the Federal Court decision in Ng Hoo Kui v Wendy Tan Lee Peng (2020) 12 MLJ

67.

This Court finds that the Trial Judge was correct in his findings based on the following grounds; a. The Trial Judge correctly held that three (3) elements must be proven to establish defamation, in accordance with the Federal Court’s decision in Tan Sri David Chiu Tat Cheong v Seema Elizabeth lsoy (2021) 1 LNS 1162. To succeed in his claim for defamation, Plaintiff must establish, on balance of probabilities, three requisite elements. Namely (a) the Impugned Text is defamatory,

the Impugned Text refers to him and (c) the Impugned Text was published to a third party. b. The Trial Judge in his grounds of judgment made a factual finding that the Defendant did not dispute that he made the said defamatory statements both orally and in writing. c. The Trial Judge carefully considered the defenses of the Defendant and correctly made the following findings: i. The defamatory statements were consistent and conveyed the natural meaning and ordinary meaning that the Plaintiff had committed acts of sexual misconduct against three (3) male students; ii. The defamatory statements portrayed Plaintiff as irresponsible, unethical and dangerous; iii. Although the Plaintiff was previously charged, he had been discharged (DNAA) and no further prosecution followed. It would be unjust for the court to disregard the defamatory statements simply because Plaintiff was previously charged especially when the presumption of innocence applies until proven guilty; iv. The Defendant’s position as a teacher did not entitle him to make defamatory allegations against the Plaintiff; v. The Defendant ought to have advised the students to lodge a police report or refer the matter to proper authorities, rather than disseminate unverified statements to third parties; vi. The Court viewed sexual misconduct as a non-trivial matter as it is a serious and grave allegation; vii. By applying Section 73A (2) of the Evidence Act 1950, the Trial Judge admitted documents tendered by the parties notwithstanding that they were initially marked as ‘ID’ following the case of Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd (2001) MLJU 125. In any event, the Trial Judge made a factual finding that the Defendant did not dispute the said defamatory statements; viii. Finally, the award of RM 80,000.00 is neither excessive nor exorbitant based on the factual matrix of this case considering the Court of Appeal decision in Utusan Melayu v Othman Bin Hj Omar

2 MLJ 800 and Loi Kok Kyan v Tan He Chuang (2017 MLJU 686.

Based on the above the appeal is dismissed with costs of RM 5,000.00 to the Plaintiff. Dated 8th September 2025 t.t. KALYANA KUMAR SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Yap Che Kai Messrs C.K. Yap & Partners For the Respondent : Low Khim Piow Messrs K.P. Low & Co.