Mkh Berhad v Tanya Hyacinth Longinus (WA-23NCVC-5-02/2016)

21.2.2016. [8] The above words set out in their natural and/or ordinary meaning and/or by inference, according to the Plaintiff were meant or understood to mean that:- a) the Plaintiff is a fraudulent and unscrupulous developer who cheats it property buyers and/or carries on business in a dishonest manner towards its property buyers; b) the Plaintiff is engaged in corrupt practices and escapes responsibility for its actions by paying bribes; and Page 7 of 35 c) the Plaintiff is an unethical developer that is undeserving of its joint venture partnership with PanaHome Malaysia Sdn Bhd. [9] The words set out have been read as evidenced by the comments posted by various Facebook users on the Facebook page. Notwithstanding a solicitors’ letter of demand issued on 22.2.2016, the Defendant refused to apologise or retract the defamatory postings. [10] On 11.3.2016, an ad-interim injunction order was granted against the Defendant to refrain from further publishing defamatory material of and concerning the Plaintiff. The Defendant was then subsequently found in contempt of Court for breach of the said ad-interim injunction order and was fined a sum of RM10,000.00. [11] On 17.8.2017, an inter parte injunction order was granted against the Defendant to refrain from further publishing defamatory material of and concerning the Plaintiff until the final disposal of the trial of this matter. [12] Notwithstanding the aforesaid orders, the Defendant continued to publish disparaging statements concerning the Plaintiff. [13] The Plaintiff further alleges that the Plaintiff’s business reputation and goodwill as a known property developer in Malaysia since 1979 have Page 8 of 35 been seriously injured and brought into disrepute and the Plaintiff has suffered considerable damage and general loss of business, business profits and opportunities. DEFENDANT’S CASE [14] The Defendant is an individual residing at Saville @ The Park Bangsar, Jalan Pantai Dalam, Kuala Lumpur. The Defendant is the Head of Online Advertising and a Director of DigitalWorks Advertising Sdn Bhd. [15] The Defendant had made complaints to the Plaintiff about her Unit at Saville @ The Park Bangsar on 29.7.2015. But her complaints were ignored by the Defendant thus she created a Facebook page entitled “Are Malaysian Consumers Stupid?”. [16] The Defendant alleges that her real intention in establishing the Facebook page is to share knowledge to the public about the responsibilities of developers for development projects. [17] The Defendant denies that the materials i.e. the photos and videos in the Facebook page were to jeopardise the Plaintiff. The materials were uploaded on the basis on Fair Comment by the Defendant on the issues suffered by her from the Plaintiff’s action. Page 9 of 35 [18] The Defendant also avers that she has justifications over all the materials uploaded inter alia to resolve her problems regarding her Unit. ISSUES TO BE TRIED [19] The issues to be tried by the Court are as follows:-

Whether the words complained of are defamatory;

Whether the words complained of refer to the Plaintiff;

Whether the words complained of were published to the third party.

Whether the Defendant can rely on the defence of Fair Comment and Justification. DECISION OF THE COURT [20] Having heard the evidence given by all the witnesses for the Plaintiff and the Defendant, and after considering the submissions of the parties, on the balance of probabilities the Court finds that the Plaintiff has proven its case against the Defendant. Therefore, the Plaintiff’s claim against the Defendant is allowed as follows :- a. Global sum for damages (i.e. General, Aggravated & Exemplary) of RM100,000.00 to be paid by the Defendant to the Plaintiff; Page 10 of 35 b. Interest at 5% p.a. on the sum of RM100,000.00 from the date of the Writ till full realization; c. An injunction to restrain the Defendant whether by herself, her servants or agents or otherwise howsoever from publishing defamatory material of and concerning the Plaintiff, namely material and words to the like effect or material and words to the same or similar effect as the Defamatory Words of the Further Defamatory Words; d. An injunction to compel the Defendant forthwith and in any event not later than 24 hours from the date of the judgment, to change or cause a change to the privacy and/or general settings of the Facebook page such that the contents and information on the Facebook page cannot be viewed and/or accessed or used by anyone; and e. Costs of RM20,000.00 to be paid by the Defendant to the Plaintiff subject to Allocatur. TE FINDINGS OF THE COURT THE LAW [21] In Halsbury’s Law of England (4th Ed) at p 7, defamation statement has been defined as follows: Page 11 of 35 “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to his office, profession, calling, trade or business”. [22] From a legal perspective, 3 general criteria/elements must be proven before defamation can be established and the elements are:

There must be a statement that is defamatory;

The statement must refer to or identify the claimant (person being defamed); and

The statement must be published to a third party other than the person being defamed. His Lordship Mohamed Dzaiddin J (as he then was) in the case of Ayob Saud v TS Sambanthamurthi [1989] 1 CLJ (Rep) 321 clearly explained the necessary procedure in establishing a claim for libel where he said at page 324:- “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 Page 12 of 35 words are defamatory; (2) the words refer to the plaintiff; and

the words were published.”

There must be a statement that is defamatory [23] His Lordship Gopal Sri Ram JCA (as he then was) in the case of Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461; 1 MLJ 371 at pp.374 and 375 said the test to be applied when deciding whether the impugned statements were in fact defamatory is as follows:- “In my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part? If the question invites an affirmative response, then the words complained of are defamatory. (See JB Jeyaratnam v. Goh Chok Tong [1985] 1 MLJ 334.) Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v. Bre Sdn Bhd & Ors [1996] 1 MLJ 393, collected and reviewed the relevant authorities upon this branch of the subject and I would, with respect, expressly approve the approach adopted by him. Page 13 of 35 I also find it helpful to quote the decision by Low Hop Bing J (as he then was) in the case of Abu Samah bin Omar v. Zainal bin Montel [2004] 5 MLJ 377 at p. 382 where it was held that: Whether the words are defamatory? In respect of this issue, it has been said that there is no precise test applied to determine whether or not any given words are defamatory or are capable of a defamatory imputation. Several general formulations have been accepted and may be stated as follows:

any imputation which may tend to lower the plaintiff in the estimation of right thinking members of society generally (see SB Palmer v. AS Rajah & Ors [1949] MLJ 6); to cut him off from society or to expose him to hatred, contempt or ridicule (see Abdul Rahman Talib v.

a defamatory statement is one to a man’s discredit, or which tends to lower him in the estimation of others, or to injure his reputation in his office, trade or profession, or to injure his financial credit or if the words cause him to be shunned or avoided: Yussoupoff v. Metro-Goldwyn-Mayer Pictures Ltd [1934] 50 TLR 58; per Mohamed Page 14 of 35 Azmi J (later FCJ) in Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 at p 58, Gatley on Libel and Slander (6th Ed) p 4, as followed by Ramly J in Kian Lup Construction, pp.41-42.” [24] Order 78 rule 3 of the ROC 2012 states the obligations of the party bringing an action for defamation to give particulars of the defamation: “3 (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense.

Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. Page 15 of 35

Where in an action of libel or slander the plaintiff alleges that the defendant maliciously published the words or matter complained of, he need not in his statement of claim give particulars of facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of the words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.” [25] Going through the facts and evidence as a whole, the Court is satisfied that the words set out in the Defendant’s Facebook page contained in paragraphs 11.1 until 11.5 of the Plaintiff’s Re-amended Statement of Claim are defamatory in their natural and ordinary meaning. The Defendant vide her Facebook Page had portrayed the Plaintiff as “cheating”, “fraudulent”, “unscrupulous”, “unethical” and a company that gives “belanja kopi”. These impugned statements made by the Defendant in her Facebook Page against the Plaintiff in the Page 16 of 35 Court’s opinion, has certainly lowered the Plaintiff’s reputation in the estimation of right thinking members of society generally and are unarguably defamatory in their natural and ordinary meaning as pleaded by the Plaintiff in its Statement of Claim.

The statement must refer to or identify the claimant (person being defamed) [26] It is not disputed that the Defendant had referred to the Plaintiff in her impugned statements against the Plaintiff vide her Facebook Page portraying the Plaintiff as “cheating”, “fraudulent”, “unscrupulous”, “unethical” and a company that gives “belanja kopi”. The Defendant had in fact repeatedly mentioned the Plaintiff’s name in her postings in the Facebook Page as can be seen in paragraphs 11.1 to 11.5 of the Plaintiff’s Re-amended Statement of Claim as follows:- “MKH Berhad & Amona Group are LYING, CHEATING, FRAUD property developers!...”- uploaded by Are Malaysian Consumers Stupid?, 16.1.2016. “So exhausted investing precious time fighting with these unscrupulous companies…They’re the companies that market themselves as ‘prestigious property developers – MKH Berhad Page 17 of 35 & Amona Group.” - uploaded by Are Malaysian Consumers Stupid?, 17.1.2016. “YOU CHEAT TO SELL PROPERTIES, MKH BERHAD??...”- uploaded by Are Malaysian Consumers Stupid?, 18.1 2016. “Sebab tue kita orang nie tak akan biarkan MKH Berhad memperbodohkan consumer lagi. Kalau semua orang mendiamkan diri, takut nak bersuara, sampai bila2 company besar macam nie akan terus menipu consumer…”- uploaded by Are Malaysian Consumers Stupid?, 23.1.2016. “Orang Malaysia biasanya tak berani nak melawan company besar sebab company besar kat Malaysia senang melarikan diri. Belanja kuih, belanja kopi, dan boleh lepas…” – uploaded by Are Malaysian Consumers Stupid?, 23.1.2016. “TAK malu ke, Panasonic Corporation & Panahome Malaysia Sdn Bhd? Shame on you for joint venturing to build properties together with dirty unethical companies like MKH Berhad who cheats their property buyers” – uploaded by Are Malaysian Consumers Stupid?, 21.2.2016. Page 18 of 35 “In this photo, Yasuteru Fujii, President of PanaHome Corporation & Tan Sri Dato’ Alex Chen Kooi Chiew, also owner of MKH Berhad. Haruhiko Kuwano, President of PanaHome Malaysia commented, “PanaHome Malaysia is excited to partner with MKH Berhad.” Excited to scam people’s money” – uploaded by Are Malaysian Consumers Stupid?, 21.2.2016. “This is Tan Sri Datuk Eddy Chen Lok Loi, owner of the penipu company MKH Berhad that refuses to reimburse & compensate us for their breach of contract. Hmm..suspicious or not?”- uploaded by Are Malaysian Consumers Stupid?,

21.2.2016. [27] To succeed in an action for defamation, the words or statements complained of must refer to the Plaintiff. His Lordship Lim Beng Choon J in the case of The Institute of Commercial Management United Kingdom v. The New Straits Times Press (Malaysia) Bhd [1993] 2 CLJ 365; [1993] 1 MLJ 408 said: “It is an essential element of the cause of action for defamation that the words complained of should be published ‘of the plaintiff’. The test which the plaintiff has to furnish an answer to satisfy the court whether the words would reasonably in the Page 19 of 35 circumstances lead persons acquainted with the plaintiff to believe that he was the person referred to.” [28] In the present case, the Plaintiff’s name has been specifically mentioned in the postings made by the Defendant vide the Defendant’s Facebook Page, in fact this is admitted by the Defendant herself. In support of the Plaintiff’s contention that these defamatory statements referred to the Plaintiff, the Plaintiff relies on the decision in the case of National Union Bank Employees v Noorzeela bt Lamin and another [2014] 7 MLJ 31 where the Court in that case had dealt with the similar question as to whether the statements which appear on the first defendant’s Facebook page in that case were defamatory of the Plaintiff. The facts in that case was that the first defendant had published or caused to be published comments against the plaintiff and its Exco on her Facebook page where the Court in that case has made finding that these comments of the first defendant in her Facebook page are capable of defamation, that they refer to the plaintiff and its Exco and that they were published. Going through the said case, the Court agrees that the facts of the present case deals with similar background facts and issues, and therefore finds that the Defendant in the present case has clearly made Page 20 of 35 reference to the Plaintiff when postings the impugned statements on her Facebook Page against the Plaintiff. [29] From the impugned statements made by the Defendant, the Defendant is trying to label the Plaintiff, a public listed company as “lying”, “cheating”, “unethical” and “unscrupulous”. In the said statements, the Plaintiff was expressly identified by the Defendant by name, in all of the offending postings, save for one. Although the Defendant did not expressly make reference to the Plaintiff in the 5th statement complained of, namely the one that reads, “[o]rang Malaysia biasanya tak berani nak melawan company besar sebab company besar kat Malaysia senang melarikan diri. Belanja kuih, belanja kopi, dan boleh lepas…” but when reading the entire Facebook Page as a whole, the Court is satisfied that the offending statement was understood to refer to the Plaintiff. After all, the entire page was targeted at the Plaintiff as admitted by the Defendant herself (see: Nota Keterangan of 16.8.2018 at p 93 and 94) and that, it is clear that all the discussions, comments and postings were directed towards the Plaintiff and that the aforesaid statements had also attracted comments that referred specifically to the Plaintiff.

Whether the words complained of were published to the third party. [30] In the case of S Pakiananthan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771; [1988] 1 CLJ (Rep) 233, the Supreme Court held: “In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the Plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written.” [31] From the facts and evidence, the publishing of the defamatory statements to a third party is not disputed by the Defendant herself. There is no doubt that the impugned statements were all posted on a Facebook Page and the Defendant admits that the Facebook Page was under the overall supervision and control of the Defendant as the administrator of the Facebook Page (refer to the Statement of Agreed Facts – Annexure A at para 7, 8 and 10). The Defendant from her evidence also admits spending around RM10,000 to ensure that her Facebook postings would reach a wider audience (refer to the Notes of Evidence of 16.08.2018 at p 102). Page 22 of 35 [32] As such, from the evidence and also by the admission of the Defendant, the Court finds that the impugned statements were indeed clearly published to the third party. [33] Based on the above reasons, the Court is satisfied that the Plaintiff has fulfilled the 3 criteria/elements for defamation as required under the law. There is no doubt that the statements made by the Defendant vide her Facebook Page portraying the Plaintiff as “cheating”, “fraudulent”, “unscrupulous”, “unethical” and a company that gives “belanja kopi” are defamatory in their natural and ordinary meaning as pleaded by the Plaintiff, and consequently has lowered the Plaintiff’s reputation in the estimation of right thinking members of the society generally, which tends to injure the reputation of the Plaintiff.

Whether the Defendant can rely on the defences of:

Fair Comment and (b) Justification. [34] In defending her action, the Defendant in her Statement of Defence relies on the defences of justification and fair comment. The Defendant contends that the said posting of the alleged Defamatory Words published by her where it states inter alia that the Plaintiff is a “cheating”, “fraudulent”, “unscrupulous”, “unethical” and gives bribes Page 23 of 35 (“belanja kuih, belanja kopi”), were justified as per the particulars mentioned in her defence in the Re-Amended Defence and Counterclaim (refer Bundle A at p 14 to 17 para 14 to 17) amongst: a) the security system at the Development did not accord with the advertised facilities and in particular the CCTV surveillance was not installed and security services were not provided at Block B of the Development; and b) on 15.1.2016, there was a lift that flooded. [35] The Defendant at the trial, attempts to offer oral evidence to support her contention that the said defamatory statements are justified, however, the Court finds that the oral evidence offered by the Defendant failed to bring any evidence to deny the Plaintiff’s arguments that: a) The homeowners of the Development can indeed view their visitors through the CCTV services stipulated in the Home Owner’s Manual and there are CCTVs fixed at the services counter at the ground floor of the Development; b) The Plaintiff had on 18.3.2015 appointed Golden Triangle Security Services Sdn Bhd (“Golden Triangle”) as the security providers for the Development to render security services to all Page 24 of 35 blocks of the Development including Block B. The letter of award for Golden Triangle’s appointment that has been produced by the Plaintiff clearly evidences this and expressly stipulates the provision of security services to Block B of the Development. Notices were issued to the residents informing everyone about the appointment of the security guards; and c) The incident involving the flooding of the lift with water occurred on or around 15.1.2016 after an exceptionally strong wind during a heavy rainstorm swept rainwater in the direction of the lift corridors at Block B of the Development. The residents of the Development were subsequently notified of the measures that were taken to address this issue. [36] For the Defendant to be successful in her defence of fair comment, the Defendant has to establish the following:-

that the words complained of are comments, although they may consist of or include inferences of facts;

the comments are on a matter of public interest;

the comments are based on facts; and

the comments are one which a fair-minded person can honestly make on the facts proved. Page 25 of 35 (see Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304) [37] The Defendant in this case must show that the words or statements made are comment, and not a statement of fact. She must also show that there is basis of fact for the comment contained in her Facebook Page postings. Gatley on Libel and Slander, 9th Ed defined fair comment as follows:- “More accurately it has been said that the sense of comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.’ Per Cussen J in Clark v. Norton [1910] VLR at 499.” [38] With regard to the defence of justification, in the case of Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor [2008] 2 CLJ 814 it was held: “In a defamation action, the defence of justification is complete defense if it succeeds. And the question of malice or bad faith does not arise. But, in order to succeed in the defence of justification a Defendant must establish the truth of all the material statements in the words complained of which may include defamatory comments made therein. And in order to Page 26 of 35 justify such comment, it is necessary to show that the comments are correct imputations or conclusions to be drawn from the proved facts. However, the plea of justification does not fail by reason only that the truth of every charge is not provided if the words proved to be true do not materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges (see s.8 of the Defamation Act 1957 and Abdul Rahman Talib v. Seenivasagam & Anor [1966] 2 MLJ 66). It is also to be noted the partial justification may be useful in the mitigation of damages.” [39] Weighing the facts and evidence as a whole, the Court is of the considered view that the words or statements set out in the Defendant’s Facebook Page as contained in paragraphs 11.1 until 11.5 of the Plaintiff’s Re-amended Statement of Claim are not comments but are mere allegation or statement facts without any basis to support the said allegations. Therefore, the Court is satisfied that the statements made by the Defendant in her Facebook Page falls within the ambit of defamatory statements that gives effect to defamed the Plaintiff’s reputation. It is clear that the defamatory statements published by the Defendant, imputing inter alia cheating, Page 27 of 35 fraud and bribery on the part of the Plaintiff, are pure allegations of fact and certainly not expressions of opinion to qualify as comment. [40] Thus, there is no issue of whether the statements made were a fair comment or not. As such, the Defendant’s defences on fair comment and justification in the opinion of the Court is flawed and should not be considered. DAMAGES [41] General Damages In a defamation case, it is trite that a plaintiff need not plead or prove actual damage since the injury need not necessarily be confined to loss of income but to the loss of goodwill and reputation. In determining an appropriate quantum of general damages, the following factors should be taken into account: a) the position and standing of the plaintiff; b) the gravity and seriousness of the libel; c) the mode and extent of the publication; d) the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel; e) the uncertainty undergone in litigation; Page 28 of 35 f) the conduct of the defendants from the time of the libel down to the very moment of the verdict; and g) the absence or refusal of any correction, retraction or apology. (see Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209 and MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 MLJ 493) [42] The Plaintiff is a public listed company incorporated in Malaysia in

The Plaintiff’s principal business consists of investment holding, providing management services, property development and oil palm plantation. Over the years, the Plaintiff received numerous awards including (refer to Bundle C at p 732 to 733): • The Edge Top Property Developers Awards 2013 – Top 30 Companies; • IAIR Awards 2013 - Best Company for Leadership-Property Development, South East Asia; • Best Companies to Work for in Asia Awards 2013; • Asia Pacific Property Awards (APPA): • Highly Commended – Architecture Single Residence Malaysia – Kajang 2; Page 29 of 35 • Highly Commended – Residential High-Rise Development Malaysia – Saville @ The Park, Bangsar; • MIRA Malaysia Investor Relations Awards 2014 - Best Company for Investor Relations 2014; • Best Companies to Work for in Asia Awards 2014; • The Edge Top Property Developers Awards 2014; • The Edge Affordable Urban Housing Excellence Award 2014; • Asia Pacific Property Awards (APPA): o Highly Commended – Architecture Single Residence Malaysia – Kajang East; o Highly Commended – Commercial High-rise Architecture Malaysia – MKH Boulevard; o Highly Commended – Office Architecture Malaysia – MKH World; o Highly Commended – Development Marketing Malaysia – Hillpark Shah Alam; and o Highly Commended – Office Development Malaysia – MKH World; • Property Insight Prestigious Developer Awards 2015; Page 30 of 35 • Best Under Billion Awards 2015 by Focus Malaysia; • The Edge Top Property Developers Awards 2015; • The Edge Affordable Urban Housing Excellence Award 2015; • The Edge Property Excellence Awards 2016; and • The Edge-PEPS Value Creation Excellence Award 2016. [43] The Defendant’s defamatory allegations include that the Plaintiff was “lying”, “cheating”, “unethical”, “corrupt”, “belanja duit kopi” and “scams people money”. To label the Plaintiff as a public listed company that cheats its customers, is fraudulent and unethical, gives bribes and scams people, in the Court’s opinion is extremely serious and damaging to the Plaintiff’s reputation. [44] The impugned statements which were published on the Defendant’s Facebook Page, was far-reaching and had in fact been read by a large number of people. The Defendant appears to be a disgruntled purchaser who has decided to use her skills in social media to run a damaging campaign against the Plaintiff. Instead of pursuing the proper complaints procedure, the Defendant had decided to air her grievances against the Plaintiff in a vocal and aggressive manner by making countless disparaging statements against the Plaintiff on the Page 31 of 35 Facebook Page. Although the Plaintiff had met with the Defendant in an attempt to reach an amicable solution, the Defendant continued to publish disparaging statements concerning the Plaintiff and sent harassing WhatsApp messages to the Plaintiff. [45] It is noteworthy to mention that the Defendant had also willfully and maliciously sent an email to Panasonic’s Corporate Communications Team with the intent of further damaging the Plaintiff’s reputation. In this email, the Defendant alleged that the Plaintiff conducted its matters in an unfair and dishonest manner. [46] Aggravated Damages While a company does not have feelings and as such could not be said to have suffered injury to feelings, the courts have recognised that a company may be awarded aggravated damages. The Federal Court in the case of Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346 at p. 366 states: “[76] In appropriate cases, substantial damages may be awarded for any indignity, discomfort or inconvenience suffered; even aggravated damages may be awarded in light of the motive or conduct of the tortfeasor (Rookes v. Barnard Page 32 of 35 [1964] AC 1129 at 1221-23 (HL); W v. Meah [1986] 1 All ER 935).” (see also Messenger Newspaper Group Ltd v National Geographic Association [1984] IRLR 397). [47] The Plaintiff relies on the following facts and matters in support of the Plaintiff’s claim for aggravated damages: a) The impugned words were false and were published or caused to be published by the Defendant maliciously; b) On or about 21.4.2016, the Defendant issued a message to the Plaintiff, threatening the release of an audio recording which was taken by the Defendant following her telephone discussion with SP1, and which constituted without prejudice communication, to the media; c) Despite receiving the Plaintiff’s solicitors’ letter dated 22.4.2016 opposing the release of the said audio recording, the Defendant issued a further message to the Plaintiff on or about 23.4.2016, reiterating her threat to share the said audio recording with the media; and d) On or about 25.4.2016, the Defendant sent an email to several purchasers of the Plaintiff’s other developments alleging inter Page 33 of 35 alia that the Plaintiff had issued false promises towards their purchasers. [48] The Plaintiff also relied on the Defendant’s own testimony throughout the proceedings to support the Plaintiff’s claim for aggravated damages:- a. The Defendant posted the disparaging statements on a widely circulated public Facebook page created to target the Plaintiff (Refer to Notes of Evidence of 16.8.2018 at p 93 and 94); b. Fearing that an unsponsored Facebook post would not reach a wide enough audience, the Defendant paid as much as RM10,000 to widen the reach of the disparaging statements even though the Defendant mentioned that Facebook allows you to sponsor a post for much less. (Refer to Notes of Evidence of 16.8.2018 at p 90 and 91); c. The Defendant’s unapologetic and unremorseful for her action; and d. The Defendant’s last posting in relation to the Plaintiff and the subject matter of the present action was on

12.8.2018, a day before the trial originally fixed on 13.8.2018. [49] Exemplary Damages Exemplary or punitive damages are damages which do not commensurate with the loss but were awarded to punish the defendant. The purpose of such damages is to express the Court’s disapproval of the defendant’s conduct where Edgar Joseph SCJ in the case of Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd [1993] 3 MLJ 352 delivering the Supreme Court judgment held this type of damages can only be awarded in situations as follows:- “(i) oppressive action of officers of the crown;

(ii) cases where a defendant with a cynical disregard for the plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damage at risk; and

(iii) where a statute expressly authorises the awarding of such damages.” [50] As a conclusion, after weighing the evidence as a whole and upon considering the factual events that took place between the parties in Page 35 of 35 this case, the Court finds that a Global Sum of RM100,000.00 for damages is more appropriate to be granted to the Plaintiff against the Defendant. Therefore, the Plaintiff’s claim against the Defendant is allowed with costs. …………………………………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. Ms. Amanda Loh (Counsel for the Plaintiff / Respondent) Messrs Raja, Darryl & Loh Advocates & Solicitors Mr. A. Kanesrau (Counsel for the Defendant / Appellant) Messrs Seah Balan Ravi & Co. Advocates & Solicitors