Malayan Banking Berhad v Wong Wei Pin (WA-22NCvC-506-07/2021)

The Plaintiff’s claim against the Defendant is for defamation whereas the Defendant’s claim against the Plaintiff is for misrepresentation and unjust enrichment. Both these claims were tried together.

This case proceeded to a full trial whereby the parties apart from oral evidence relied on the statement of agreed facts, issues to be tried and Bundle of Documents filed on the direction of the Court. 03/06/2025 16:51:38 WA-22NCvC-506-07/2021 Kand. 273 S/N 7skJqFSEyUe7mrLfbn7TLw Brief facts

This dispute between the parties is with regards to the eligibility to earn Treat Points for usage of credit cards issued by the Plaintiff a Financial Institution to the Defendant.

The dispute stemmed from the Defendant using the credit card for commercial purposes which the Plaintiff contends that Defendant is not entitled to earn the Treat Points, which can only be earned for personal purchases using the cards.

The Defendant had filed a civil suit against the Plaintiff for the reinstatement of the Treat Points awarded upon the Defendant withdrawing the Treat Points on the pretext that the Defendant had used the credit card for commercial use.

The Defendant was unsuccessful in her claim against the Plaintiff at all level of courts i.e. the Sessions Court, High Court and the Court of Appeal.

The Plaintiff alleges that the Defendant continued making disparaging remarks against the Plaintiff a reputed Banking Institution and therefore tarnishing its image and reputation causing it to lose its reputation in the eyes of the public and its customers. The Plaintiff has therefore filed this claim for defamation against the Defendant.

The Defendant on the other hand contends that she is entitled to reclaim the Treat points that were withdrawn on the basis of new S/N 7skJqFSEyUe7mrLfbn7TLw facts of misrepresentation and unlawful enrichment discovered after the final determination of her claim against the Plaintiff in the earlier case. The issues

The 2 issues for determination in this case is first whether the Defendant has defamed the Plaintiff causing it to lose its reputation and secondly whether the Defendant is entitled to reclaim the Treat Points regardless of the earlier decision of the Court.

The Plaintiff contends that the defamatory statements were contained in an article written by the Plaintiff on May 2019 and sent to Bank Negara and her lawyer.

The Article written by the Defendant concerned misrepresentation by the Plaintiff in allowing the Defendant to continue to use the credit card despite knowing that it was used for commercial purpose. This allowed the Plaintiff unjust enrichment at the expense of the Defendant’s usage of the credit card and depriving the Defendant the benefit of the Treat points.

The Court is guided by the principle as laid in the case of 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 when he said at p. 155: S/N 7skJqFSEyUe7mrLfbn7TLw 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

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 this case the Plaintiff has established 2 of the elements clearly i.e. the Article does refer to the Plaintiff and the Article was published albeit in a limited manner to Bank Negara and the Defendant’s lawyer.

The overriding element is however whether the statements in the Article gives rise to defamatory imputation. The Federal Court case of Raub Australian Gold Mining Sdn Bhd V Hue Shieh Lee [2019] 3 CLJ 729 defined defamatory imputation as follows: There is no precise test to be applied to determine whether or not any given words are defamatory. His Lordship Mohamed Azmi J (as he then was) in the case of Syed Husin Ali v. Sharikat Perchetakan Utusan Melayu Berhad & Anor [1973] CLJU 146; S/N 7skJqFSEyUe7mrLfbn7TLw [1973] 1 LNS 146; [1973] 2 MLJ 56 at p. 58, quoting Gatley on Libel and Slander, 6th edn. p. 4, stated the following: There is no wholly satisfactory definition of a defamatory imputation. Any imputation which may tend "to lower the plaintiff in the estimation of right-thinking members of society generally', 'to cut him off from society' or 'to expose him to hatred, contempt or ridicule', is defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published. It was further quoted that: A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking person's generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. [33] Whether the words are defamatory lies in the nature of the statement in that it must have the tendency to affect the reputation of a person. Therefore, the question arises in whose eyes the words complained of must have the tendency to affect the plaintiff's reputation. In the Law of Defamation in Singapore and Malaysia, 2nd edn by Keith R. Evans (at p. 10), it is stated that, in applying these various tests, the court must look to a particular control group that is, in whose eyes must the estimation of the plaintiff be lowered before the words are said to be defamatory. In determining the issue, the court does not S/N 7skJqFSEyUe7mrLfbn7TLw look to the actual effect of the allegations on the person's reputation, or the meaning of the words actually understood or taken by the listeners (see: JB Jeyaretnam v. Goh Chok Tong [1984] CLJU 139; [1984] 1 LNS 139; [1985] 1 MLJ 334). It is not enough that the listeners actually take the words in a defamatory sense, for they must be reasonably justified in so understanding the words before they are found to be defamatory (see: The Straits Times Press (1975) Ltd. v. The Workers' Party & Anor [1986] CLJU 65; [1986] 1 LNS 65; [1987]

In this case the actual concern of the Plaintiff is the Article being sent to Bank Negara. The Plaintiff is not so much concerned of the Article being to the Plaintiff as this is not publication to a 3rd party.

In the Court’s view the Defendant sending the Article to her own lawyer also cannot be considered to publication to 3rd party. This sending to her own lawyer is secured by client solicitor confidentiality. There is no evidence that the Defendant had directed her lawyer to publish the Article to 3rd parties. There is also no evidence that lawyer had done so.

The main concern for the Plaintiff is the Article being sent to Bank Negara which regulates all the Financial Institutions in this country. This Article might lead the Plaintiff to lose its reputation in the eyes of Bank Negara. S/N 7skJqFSEyUe7mrLfbn7TLw

The Court rules that sending the Article does give rise to any negative imputation by Bank Negara as it is in fact the duty of Bank Negara to receive such information from the public for purposes of investigation into the Financial Institution concerned.

From the oral evidence of the Defendant which the Court accepts and believes, the sole intention of the Defendant in sending the Article to Bank Negara to investigate further. There was no malicious intention on the part of the Defendant to defame the Plaintiff.

This Article sent to Bank Negara had no defamatory imputation to lower the esteem the reputation of the Plaintiff in the eyes of the public. There is no evidence led by the Plaintiff to show that there was rise in negative public reactions against it resulting in losing of customers by the Article being sent to Bank Negara.

In fact by filing this case the Plaintiff has exposed itself more widely to public contempt and odium. The news of this case in Court may tarnish the image of the Plaintiff amongst members of the public who might not have been aware of such an issue. What was supposed to be a private investigation by Bank Negara has now come to public domain by the action of the Plaintiff itself.

In fact, the Plaintiff should blame itself in publicizing its own enforcement weaknesses. The facts of this case clearly shows that the Plaintiff were aware that the Defendant had use the credit card for commercial purposes and instead of cutting her off, encouraged her to the continuous use of the card. S/N 7skJqFSEyUe7mrLfbn7TLw

This conduct of the Plaintiff in continuing the Defendant from using the credit card even after discovering that it was used in breach of its condition added grievance to the Defendant and justified her in writing the Article.

The Court concludes that the Article written by the Defendant and sent to Bank Negara was not intended to tarnish the image of the Plaintiff and therefore cannot be regarded as defamatory. Defendant’s counter claim

In the Court’s view the entitlement to the Treat Points was decided with finality in the Court. Therefore, to re litigate the issue would be a breach of the principle of Res Judicata.

The Defendant has also failed to show in what manner the Plaintiff was enriched in withdrawing the Treat Points. The witness called by the Defendant did not throw much light on any benefit obtained by the Plaintiff in the usage of the Defendant of her card.

As a final decision in this case the Court dismissed both the Plaintiff’s claim and the Defendants’ counter claim and ordered each party to bear its own cost. S/N 7skJqFSEyUe7mrLfbn7TLw Dated: 3.6.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N 7skJqFSEyUe7mrLfbn7TLw PARTIES For the Plaintiff: Nama Peguamcara: Hee Hui Ting / Liew Seong Yee. Tetuan Shearn Delamore, 7th Floor, Wisma Hamzah-Kwong Hing, No. 1, Leboh Ampang, 50100 Kuala Lumpur. For the Defendant: Nama Peguamcara: Wong Wei Pin Wong Wei Pin (Mewakili Diri Sendiri) No. 19, Jalan Anggerik Vanda Satu 31, 168A, Kota Kemuning Hills, 40460 Shah Alam, Selangor. S/N 7skJqFSEyUe7mrLfbn7TLw