Lim Sek Cheon v Ng Kah Seng@Ng Kai Seng (BA-23NCvC-65-12/2022)

The main action concerns a claim of defamation. It is well-established that any impugned defamatory statement must be fully pleaded in the Statement of Claim. The Plaintiff has done so. However, the distinctiveness of the present Notice of Application before this Court lies in the fact that, although the impugned statements were fully reproduced in the original pleadings, the Plaintiff failed to provide a translation of these statements into the Malay language. Consequently, the Plaintiff has filed the present interlocutory application in Enclosure 36, seeking to amend the pleadings to include the necessary translations of the impugned defamatory statements. 09/12/2024 16:12:06 BA-23NCvC-65-12/2022 Kand. 55

The overriding issue in the present application is whether this Court should exercise its discretionary power and allow the amendments sought by the Plaintiff. In determining this prevailing issue in Enclosure 36, this Court is required to consider the following subsidiary issues, namely: • First, whether there was delay on the part of the Plaintiff in making the present application and if the answer is in the affirmative, whether the delay is fatal; • Second, whether the Defendant has been prejudiced and cannot be compensated with costs; and • Third, whether the amendments sought were bona fide.

The Plaintiff advanced five primary grounds in support of his application in Enclosure 36.

First, the Plaintiff contended that the Proposed Amendment would enhance clarity and facilitate a deeper understanding of the defamatory statements for both the Court and the parties involved. The Plaintiff further emphasized that the amendment would be of significant assistance to relevant parties, including witnesses and the Court, “who may prefer and be more inclined to review the defamatory statements in Bahasa Malaysia.”

Additionally, the Plaintiff maintained that the Proposed Amendment is “minor in nature and de minimis”.

Third, the Plaintiff argued that “this Amendment Application is made in good faith and would not result in any prejudice to the parties involved.”

Closely tied to the third ground is the Plaintiff’s submission that “if any party were to suffer prejudice as a result of the Proposed Amendment (which we firmly deny), such prejudice could be easily remedied through an award of costs.”

Finally, the fifth ground is based on the argument that the Proposed Amendment “does not alter the original or material facts, issues, and/or cause of action in this suit.”

In advancing diametrically opposing views, the Defendant argued that the effect of the Proposed Amendment is “to cure the deficiencies in the Plaintiff’s case”.

Moreover, it was the Defendant’s contention that “there has been an inordinate delay in the filing of this Amendment Application”. The Defendant highlighted the following facts, namely, that (i) there was a delay of 17 months since the close of pleadings in February 2023, (ii) this Amendment Application was merely a reactive measure, lodged only two days before the originally scheduled trial on 1 August 2024, (iii) the delay and the absence of explanation meant that the application was “tactical, disadvantaging the Defendant and undermining procedural integrity”. The Defendant further submitted that “the unexplained delays erode 4 confidence in the Court’s processes and may constitute an abuse of the Court's resources”.

Third, the Defendant disagreed that this Amendment Application is bona fide. Instead, the Defendant argued that it amounts to an abuse of the process. On the lack of good faith, it was asserted by the Defendant that the Plaintiff’s failure to provide certified translations of critical defamation remarks (in Enclosure 2) was “not merely an oversight but a significant flaw, reflecting an attempt to circumvent the deficiencies in their claim”. Accordingly, the Defendant averred that this failure highlighted the Plaintiff's “lack of genuine intent and should be viewed as a deliberate attempt to revive a fundamentally flawed claim”. Elaborating on the abuse of process point, the Defendant submitted that the Plaintiff’s intention in making the amendments was “to rectify defects they have long been aware of, which is a strategic misuse of the amendment process” and “that the timing and nature of these amendments serve as a tactical manoeuvre that exploits the Court's resources while unfairly burdening the Defendants, as additional time and expense will be required to address new issues arising so late in the proceedings”.

Last but not least, it was the Defendant’s contention that this Amendment Application “causes the Defendant prejudice that cannot be compensated with costs”. The Defendant’s submission is that “the amendments bring entirely new issues that were readily apparent at the action’s commencement” and that “this attempt to introduce significant changes disrupts the Defendant’s preparation and adds substantial burden to the Defendant”.

The pertinent provision of the Rules of Court 2012 is Order 20 rule

It provides as follows: Amendment of writ or pleading with leave (O. 20, r. 5)

5.

Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. [14] It is evident that rule 5(1), which is relevant for purposes of the present application, confers wide discretionary powers on the Courts to permit applications by litigants to amend their writs and pleadings. Rule 5(1) is a codification of the liberal approach as enunciated in Clarapede & Co v Commercial Union Association (1883) 32 WR 262. [15] Despite the provisions governing this aspect of practice and procedure being couched in liberal terms, it is commonplace that in exercising these discretionary powers, the Courts are bound by established principles and are predisposed to the factual matrix of the case before them. [16] At the risk of repetition, the governing principles, as laid down in the leading cases of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] CLJ 428; [1983] 1 MLJ 213; [1982] 1 MLRA 417 and Hong Leong Finance Berhad v Low Thiam Hoe [2015] 8 CLJ 1; [2016] 1 MLJ 301; [2016] 3 MLRA 81 (“Hong Leong Finance”), may be summarized as follows. [17] Leave to amend writ or pleadings ought to be granted unless

the amendment is not bona fide;

the amendment will cause prejudice which cannot be compensated by costs;

the amendment will turn the suit from one character into a suit of another and inconsistent character;

the amendment is one which is futile or frivolous;

the amendment is to withdraw an admission consciously made;

the amendment is made after an inordinate and inexcusable delay;

the amendment is to raise a cause of action which only accrued to the plaintiff after the action had been commenced;

the amendment is to add a party after limitation has set in; or

the amendment is to add a cause of action after limitation has set in. [18] Save for the last two exceptions, which are provided for in Order 20 rule 5(2) – (5) of the Rules of Court 2012, the rest are expounded through case law. It should be added that the last exception is subject to further exceptions (see Order 20 rule 5(5) of the Rules of Court 2012). Application of the Law and Principles to the Present Matter [19] This Court will first address the Defendant’s contention regarding the issue of inordinate delay. [20] The Statement of Claim was dated 16 December, 2022, and the Notice of Application to amend it was only filed on 29 July, 2024, approximately 17 months after the close of pleadings in February 2023. Is this delay sufficient for this Court to exercise its discretion to disallow the Plaintiff’s application on the ground of inordinate delay? [21] This Court has carefully considered the Defendant’s arguments outlined in paragraph [10] above. It is undeniable that there was tardiness on the part of the Plaintiff, and it is also clear that the Amendment Application was made at the eleventh hour. The Notice of Application in Enclosure 36 was filed on 29 July 2024, when trial dates had already been fixed for 1 and 8 August 2024. These trial dates were vacated; however, it was not solely due to the Plaintiff’s late application. The Defendant also requested that both trial dates — 1 and 8 August 2024 — be vacated and/or adjourned, albeit for valid reasons. As a result, the Plaintiff’s delay was mitigated by the fact that the trial could not proceed on those dates. Thus, the issue of delay affecting the just and expeditious disposal of this suit did not arise in this instance. [22] That said, this Court is mindful of, and bound by, the “fresh, robust, and less accommodating approach” set out by the apex court in Hong Leong Finance, particularly in cases involving delay. In that case, the Federal Court rejected the defendant’s eleventh-hour application to amend his Defence. [23] However, as Liza Chan J rightly observed in IFCI Ltd v Bishopgate Capital Ltd & Anor [2023] AMEJ 0646; [2023] 6 CLJ 583; [2023] 12 MLJ 111; [2023] MLRHU 542 (Bishopgate Capital), the Hong Leong Finance case “ought to be considered carefully based on its facts.” The factual circumstances in Hong Leong Finance are distinguishable from those in the present application. In Hong Leong Finance, the amendment sought to introduce two entirely new defences, and there was a 13-year gap between the close of pleadings and the application to amend. As Her Ladyship in Bishopgate Capital aptly noted, “the pronouncement in Hong Leong Finance on delay could not, with utmost respect, extend to all ‘delay,’ as each case must be decided on its own facts.” [24] In the present application, it is crucial to note that the Proposed Amendment merely seeks to include the translation of the impugned defamatory statements into the Malay language. It does not introduce any new or fresh facts or issues that would necessitate a response from the Defendant. [25] The next ground raised by the Defendant is that this Amendment Application “causes the Defendant prejudice that cannot be compensated with costs”. As outlined in paragraph [12] above, the Defendant’s submission is that “the amendments bring entirely new issues that were readily apparent at the action’s commencement” and that “this attempt to introduce significant changes disrupts the Defendant’s preparation and adds substantial burden to the Defendant”. [26] This Court is unable to agree that the Proposed Amendment will introduce “entirely new issues” or “significant changes” that will “disrupt the Defendant’s preparation and adds substantial burden to the Defendant” and thereby causing the Defendant prejudice that cannot be compensated with costs. In Yap Yoke Chong @ Allan Yap v Muhammad Ishak Leong Bin Abdullah & 2 Ors [2024] AMEJ 2164; [2024] CLJU 2105; [2024] MLJU 2454, this Court explicated the concept of prejudice which cannot be compensated by costs in the following terms: [33] What is the true connotation of the “prejudice that cannot be compensated by costs” ground? [34] The Plaintiff alluded to the case of China Orient Asset Management Corporation v Alexma Corporation Sdn Bhd [2018] 7 AMR 213; [2017] 1 LNS 1558; [2017] MLJU 1532; [2018] 2 MLRA 680 (“China Orient”), a decision of the Court of Appeal. The Court of Appeal explained this ground/exception in the context of an amendment application in the following terms. [14] In this connection, we hasten to observe that although it is quite usual for parties in amendment applications to shout "prejudice", there is a common misappreciation of what "prejudice" means (see ASM Development Sdn Bhd v. Hijjas Kasturi Associates Sdn Bhd [2009] 3 CLJ 1; [2011] 6 MLJ 228). "Prejudice", in the context of amendment applications, cannot mean that if the amendment is allowed, the chances of success of the litigation of the affected party will be severely diminished. "Prejudice" simply means that if the amendment is allowed, the party affected will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, and which is necessitated by the amendment, is lost or no longer available. In such a case, the prejudice arises, the party can be compensated with costs. [15] In our respectful view, this was not such a case where the appellant was prejudiced in the sense that they will be unable to counter the allegations as put forward in the amendments allowed by the High Court. They may be put to some bother in doing so but the general principle is that parties must be allowed every latitude to define the issues between them as that is the core function of pleadings. Even in the case where there had been an omission or mistake, it is a matter of right to have it corrected, if it can be done without injustice, and where it is not made at too late a stage of the proceedings, so that the court can deal with the real question in controversy between the parties (see GL Bakar Ltd v. Medway Building & Supplies Ltd [1958] 1 WLR 1216 as cited with approval by the Supreme Court in Hock Hua Bank Bhd v. Leong Yew Chin [1987] CLJ Rep 126; [1987] 1 CLJ 126; [1987] 1 MLJ 230). [35] The Court of Appeal in China Orient correctly elucidated the concept of prejudice in the context of an amendment application. [36] This “prejudice that cannot be compensated by costs” ground or exception can arise out of a variety of situations and is facts specific. One such circumstance is illustrated in the case of The “Kyoan Maru” QBD (Admiralty Ct.) February 28, 1980 (New Law Journal April 17, 1980). This was a case where the third defendants had sought leave to amend their Defence, to withdraw an admission that they were the carriers of the goods and to allege that at the material time the vessel was demise chartered to the first defendants under a charter-party. The plaintiffs contended that if the amendment were allowed, they would suffer prejudice which could not be compensated by any order of the Court, the reason being that if they had known about the demise charter-party they could have obtained security from the first defendants by arresting the vessel “Gulf King” which was also on demise charter to the first defendants from the third defendants but the first defendants were now in liquidation. [37] It was held by Sheen J that the plaintiffs could not have obtained security from the first defendants by arresting the “Gulf King” as on the true construction of the Administration of Justice Act 1956, section 3(4) a vessel on demise charter could not be arrested. Be that as it may, the application for leave to amend the Defence was refused on the ground that the plaintiffs’ solicitors would have doggedly pursued any opportunity to obtain security from the first defendants and would in all probability have been successful. Hence, if leave were granted to amend the Defence at that stage, the court held that the plaintiffs would be prejudiced in a way which could not be compensated by any order of the Court. [27] Applying the above notion to the present application, this Court is of the considered view that the prejudice that cannot be compensated by costs ground as raised by the Defendant is unmeritorious. [28] The issue of lack of good faith and abuse of process, as raised in paragraph [11] above, demands due consideration. The crux of the Defendant’s argument is that the Proposed Amendments are “substantial in nature to cure the major flaws in the Plaintiff’s Claim and not just merely to include the Bahasa Malaysia translations”. The Defendant further argued that “the Plaintiff’s attempt to mask this Amendment Application as minor and inconsequential is in bad faith and lacking in honesty”. [29] The Plaintiff referred this Court to Aon Risk Services Australia Ltd v Australian National University [2009] 83 ALJR 951, a decision of the High Court of Australia. The underlying principle as propounded by the High Court of Australia is that good faith and the need for full disclosure of reasons when seeking amendment applications are mandatory. [30] The Plaintiff pointed out that “any delay in seeking amendments, without sufficient explanation, would weigh against granting the application” and “a failure to disclose the genuine reasons for the amendments means that the amendments lack good faith”. [31] This Court agrees with the Defendant that the Plaintiff has not been entirely forthright in attributing the reasons for the proposed amendment. The Plaintiff claimed that the amendment was intended “to enhance clarity and facilitate a deeper understanding of the defamatory statements for both the Court and the parties involved” and that it “would be of significant assistance to relevant parties, including witnesses and the Court, who may prefer and be more inclined to review the defamatory statements in Bahasa Malaysia.” However, it is evident that the Plaintiff became apprehensive and uncertain about the viability of his claim due to the absence of a translation of the alleged defamatory statements into the Malay language. [32] The Defendant relied on the Court of Appeal and High Court decisions in Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] AMEJ 0669; [2021] 7 CLJ 353; [2021] 5 MLJ 836; [2021] 5 MLRA 189 and Mabel Sheela a/p Victor Muttiah v Clare Louise Brown [2024] MLJU 1667 respectively for the proposition that the omission of a translated impugned defamatory statement(s) is fatal to a claim in defamation. [33] On the other hand, the Plaintiff contended that the absence or lack of a translation of the impugned defamatory statements in the Malay language does not render the Plaintiff’s suit fatal, as per the cases of the Court of Appeal in Karpal Singh a/l Ram Singh v DP Vijandran [2001] 3 AMR 3625; [2001] 3 CLJ 871; [2001] 4 MLJ 161; [2001] 1 MLRA 447 and the High Court in Chan Kow Chuan v Andrew Kok Keng Siong & Anor [2003] 3 AMR 456; [2003] 6 CLJ 314; [2002] MLJU 763; [2002] 4 MLRH

[34] An essential question is whether the Proposed Amendment aims to rectify a significant flaw, thereby depriving the Defendant of a litigation advantage. [35] The Defendant also drew an analogy to the principle that prohibits allowing an amendment application when its purpose is to withdraw a consciously made admission, which should not be permitted. In support of this argument, the Defendant cited Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor [2010] CLJU 968; [2010] MLJU 1110; [2010] 15 MLRH 271. In addition to that case, this Court would add Hollis v Burton [1892] 3 Ch 226. [36] As for the argument concerning the deprivation of a litigation advantage, this Court does not find the cited authorities to definitively resolve the issue either way. Likewise, the amendments to include the translated impugned defamatory statements do not involve the withdrawal of any consciously made admission. [37] While there is an element of lack of good faith, which should “weigh against granting the application,” it remains true that the Proposed Amendments will not in any way alter the original or material facts, issues, or cause of action in this suit. Moreover, given the findings that there is no clear likelihood of the Defendant being prejudiced or adversely affected, the present application in Enclosure 36 is allowed. [38] Having considered the matter as a whole, the Plaintiff is to pay costs of RM5,000 to the Defendant, subject to allocatur. Dated: 5 December, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Gary Hwang for the Plaintiff (Messrs. Ho Partnership) Ivanpal Singh Grewal with Pang Li Wei for the Defendant (Messrs. A J Ariffin Yeo & Harpal)