Pang Kwai Chee v Tetuan ZI & Associates (BA-12A-26-03/2022)

The Respondent/Plaintiff, a law firm, filed a defamation suit in the Sessions Court against the Appellant/Defendant in connection with certain remarks and allegations which the Appellant/Defendant made against the law firm in a letter written by the Appellant/Defendant to the Judicial Commissioner (“JC”) in another case in which the law firm acted for the opposite party.

In response, the Defendant filed an application under O.18 r.19 and/or inherent jurisdiction of the court to strike out the entirety of the Plaintiff’s action on the ground that the letter addressed to the JC in the other court suit is protected by absolute privilege and therefore cannot be the subject of a defamation suit.

The Sessions Court dismissed the Defendant’s application under O.18 r.19 and refused to strike the Plaintiff’s defamation suit.

Being dissatisfied, the Defendant appealed to the High Court against the dismissal of the strike-out application.

On 14 July 2022 this Court held that the latter written by the Defendant to the Judge in the course of the other suit is protected by absolute privilege and that this is a clear and obvious case for striking out the Plaintiff’s defamation action under O.18 r.19.

Arising therefrom, the Defendant has filed an appeal to the Court of Appeal.

O.18 r. 19 striking out of a plaintiff’s suit is only to be resorted to in clear and obvious case where the plaintiff’s action is frivolous, vexatious, or an abuse of the process. Where the plaintiff’s action is obviously unsustainable or has no chance of success, the plaintiff’s action is frivolous, vexatious, or an abuse of the process and can be summarily struck out. Issue in the present appeal on striking out

In the present case, the question whether or not the Plaintiff’s action for alleged defamation is obviously unsustainable or has no chance of success depends on whether the privilege enjoyed by the Defendant in connection with the impugned letter to the JC is absolute privilege or qualified privilege.

If the impugned letter to the JC is protected by absolute privilege, the Plaintiff’s action would be obviously unsustainable as no action would lie in connection with a published matter which is protected by absolute privilege, irrespective of the merits or malice in publishing the matter. If it is protected by qualified privilege, the Plaintiff’s action would not be obviously unsustainable as its success would depend on proof of malice which defeats the defence of qualified privilege – a factual dispute which would then be a triable issue. Law on Privilege in respect of communications in the course of court proceedings

In. ASHOK KANDIAH & ANOR v DATO’ YALUMALLAI @ RAMALINGAM S/O MUTHUSAMY & ANOR [2010] MLJU 2218 the Court of Appeal held as follows regarding privilege in respect of such matter: “The defence of absolute privilege [6] The learned High Court judge erred in holding that the defence of absolute privilege raised by the defendants was devoid of merit bearing in mind that the impugned letter was: (i) published in connection with judicial proceedings; and (ii) an initiation by the defendants for sanctions to be imposed by the sessions court judge against the plaintiffs. [7] Lopes LJ in Royal Aquarium and Summer and Winter Garden Society, Limited v. Parkinson [1892] 1 QB 431, CA, at 451 aptly said: “The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies, whether against judges, counsel, witnesses, or parties for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will or anger against the person defamed.” [8] And according to the case of Henry Edmund Taaffe, Esq. v. The Right Hon. William Downes, Lord Chief Justice of the Court of King’s Bench in Ireland [1813] 15 ER 3 Moore 35 at 47, it is immaterial whether such proceedings take place in open court or in private. It is also immaterial that the proceedings are of a final or preliminary character (Bottomley v. Brougham [1908] 1 KB 584 at 588) and whether they are conducted ex parte or inter partes. [9] In short, absolute privilege attaches to statements made in the course of judicial proceedings. Indeed, Gatley on Libel and Slander, eleventh edition, at page 382 wrote that: “No action will lie for defamatory statements, whether oral or written, made in the course of judicial proceedings before a court of justice or a tribunal exercising functions equivalent to those of an established court of justice.” [10] The learned author continued to write at page 385 in this way: “The privilege will attach to any matter incidental to the proceedings ‘practically necessary for the administration of justice.’ That it is convenient is insufficient. However, with the exception of proofs of evidence of witnesses or inquiries in criminal cases, it is not enough that proceedings are contemplated: they must be actually on foot or the matter in issue must be an act which initiates them. In the case of proceedings of regular courts this is not likely to cause any difficulty since the initiation of the proceedings will involve a well-recognised formal step such as the issue of a claim form, but the matter may be more difficult in the case of other tribunals exercising functions of a judicial nature.” [11] It is now settled law that statements made in the course of judicial proceedings or statements contained in documents made in judicial proceedings are absolutely privileged (Coopers & Lybrand v Singapore Society of Accountants & Ors [1988] 3 MLJ 134 at pages 136 to 137). [12] In this appeal, the evidence adduced plainly shows that the words in the impugned letter were nothing more than a reiteration of the words spoken in court and published in the course of judicial proceedings. At paragraph 4 of their Statement of Claim as seen at page 61 of the appeal record at volume 1, the plaintiffs averred that the impugned letter “... concerning the plaintiffs in relation to their conduct in the proceeding at court 9 Kuala Lumpur sessions court summons case No: 7-52-19989-98 on 13.8.1999.....” The evidence adduced further shows that the first defendant wrote the impugned letter to place on record the events that transpired on 13.8.1999 as he believed that, as an officer of the court, he had a duty to do so and that by doing so he was merely discharging that duty. [13] According to Vernon v. Bosley (No. 2) [1999] QB 18, CA, all litigants, whether represented or not, owe an obligation not to mislead the court. And a breach of this onerous obligation could be dealt with by imposing any of the procedural sanctions available to the court, including the setting aside of a judgment so obtained. The other sanction would be that of contempt or if the falsehood is so grave and it is contained in the evidence, then perjury would be the ultimate sanction. [14] According to Hercules v. Phease and Another [1994] 2 VR 411, the mere fact that the complaint may not lead to formal proceedings because of the interposition of some preliminary investigation and discretion does not necessarily mean that there is no absolute privilege. In the context of the present appeal, absolute privilege undoubtedly attaches to the impugned letter. There are no two ways about it. [15] In Lincoln v. Daniels [1962] 1 QB 237, 256, Devlin LJ made the following observations germane to the occasion at hand: “The rule of absolute privilege, as has so often been pointed out, has not been devised so as to protect malicious persons but to ensure that judges and others engaged in the administration of justice should be free from the fear of proceedings and ‘the vexation of defending actions,’ as Fry LJ put it in Munster v Lamb 11 QBD 588, 607.” [16] It is ideal to remember that the legal consequence of absolute privilege is this. That whether the words are relevant or irrelevant, true or false, malicious or bona fide, the action must be regarded as baseless and frivolous (Fitzherbert v. Acheson [1921] NZLR 265, 269, SC). [17] In Re Lilley; Ex parte Roney [1892] 61 LT 270, CA, a letter of complaint in the statutory form against a solicitor in respect of his professional conduct was held to be protected by absolute privilege in defamation proceedings. Likewise here, the impugned letter written by the first defendant is also protected by absolute privilege.” [emphasis added]

In Ashok Kandiah case, the impugned letter was not addressed to the Judge, but it was written by a solicitor and addressed to the opposite solicitor. There, “the words in the impugned letter were nothing more than a reiteration of the words spoken in court and published in the course of judicial proceedings. At paragraph 4 of their Statement of Claim as seen at page 61 of the appeal record at volume 1, the plaintiffs averred that the impugned letter ‘... concerning the plaintiffs in relation to their conduct in the proceeding at court 9 Kuala Lumpur sessions court summons case No: 7-52-19989-98 on 13.8.1999.....’ The evidence adduced further shows that the first defendant wrote the impugned letter to place on record the events that transpired on 13.8.1999 as he believed that, as an officer of the court, he had a duty to do so and that by doing so he was merely discharging that duty.”: see paragraph [11] of the Court of Appeal’s judgment. The Court of Appeal held that the impugned letter which reiterated or reproduced the incident that occurred in the court proceedings was protected by absolute privilege although it was not written to the Court or to the Judge. Analysis and findings in our present appeal

The impugned letter in our present appeal can be found in Appeal Records pages 76 – 79. This letter was written by the Defendant to the Judge and copied to the Plaintiff’s solicitor whereby the Defendant complained that the Plaintiff’s reason for application to vacate a hearing date for a court case was allegedly false. The letter was not copied or circulated to any other person.

As compared with the facts in Ashi Kandiah case, the impugned letter in our present appeal was indeed a letter written to and addressed directly to the Judge and it was in connection with a procedural matter in the court proceedings. As such the facts in our present case afford a stronger factual basis for protection by absolute privilege than the facts in Ashi Kandiah case.

In the present case it is clear that the impugned letter fell within the ambit of the absolute privilege as decided by the Court of Appeal in Ashok Kandiah case.

Therefore, it is clear and obvious that the impugned letter is protected by absolute privilege and that the Plaintiff’s action for alleged defamation is obviously unsustainable.

In the circumstances, this is a suitable case for summarily striking out the action under O.18 r.19.

The Sessions Court has erred in law in failing to hold that the latter written by the Defendant to the Judge in the course of court proceedings was covered by absolute privilege and as such cannot be the subject-matter of a defamation suit.

This Court in this decision has not decided on the academic question of whether or not a suit for defamation by the Plaintiff would be sustainable if the impugned allegations were to be repeated by the Defendant to other third parties or to the public outside the course of the judicial proceeding. That question is left to be dealt with and decided in another suit when the said question becomes a real question instead of being an academic question.

In conclusion, this Court held on 14 July 2022 that this is a suitable case for striking out the Plaintiff’s defamation suit under O.18 r.19 and/or under the inherent jurisdiction of the court.

As such, the Defendant’s appeal is allowed with costs of RM8,000 here and below, subject to allocatur. This Court therefore ordered that the Plaintiff’s Writ and Statement of Claim be struck out. Dated : 16th August 2022 Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Appellant : Kang Choong Keng Messrs H.Y. Tee & Associates (Kuala Lumpur) and Messrs Kang Choong Keng & Co. (Shah Alam)

For the Respondent : Jessica Wong Yi Sing Messrs Harold & Lam Partnership and Messrs M Manoharan & Co (Kuala Lumpur)