Rekha D/O Munisamy v Ortus Expert White Sdn Bhd (W-02(NCvC)(W)-1257-07/2019)

ORTUS EXPERT WHITE SDN BHD

GURDEV SINGH S/O JAGJIT SINGH (I/C NO: 870630-56-5495) … RESPONDENTS [In the matter of High Court Kuala Lumpur] In Wilayah Persekutuan Kuala Lumpur, Malaysia Civil Suit No. WA-23NCvC-29-09/2017 Between

Ortus Expert White Sdn Bhd (Company No: 951378-H)

Gurdev Singh s/o Jagjit Singh (I/c No: 870630-56-5495) … Plaintiffs 2 And Rekha d/o Munisamy (I/c No: 781128-10-5210) … Defendant CORAM: GUNALAN S/O MUNIANDY, JCA GROUNDS OF JUDGMENT Introduction [1] The appeal by the Appellant (“Defendant”) to the Court of Appeal is against the High Court’s decision in respect of a defamation and malicious falsehood claim filed by the Respondents (“Plaintiffs”). The appeal also relates to two specific actions of the learned High Court Judge (“HCJ”) regarding procedure in handling the case to its conclusion. First, in striking out the Respondents’ claim and then retracting it. The other in not allowing the Appellant to call witnesses. [2] As both parties had waited sometime without avail for the written grounds of judgment of the learned HCJ and since she has since retired, we proceeded hearing the appeal without the benefit of the same. At the end of the appeal, we were obliged to consider whether a retrial should be ordered. Parties hereafter will be referred to as they were in the High Court. LAU BEE LAN, JCA ABU BAKAR JAIS, JCA 3 Background Facts [3] The Defendant is in the business of distributing beauty products. The First Plaintiff is in the business of marketing and selling beauty products under its own brands. The Second Plaintiff is the founder and Chief Executive Officer of the First Plaintiff. The Defendant was also the distributor of the First Plaintiff’s products. [4] The pleaded case of the Plaintiffs is that disparaging statements amounting to libel and malicious falsehood were made by the Defendant in the latter’s Facebook about the Plaintiffs’ products. These statements include asserting that one particular product of the Plaintiffs’ was harmful to the skin and the same was actually a mixture of another product by one manufacturer in Pakistan. It was also alleged in the Facebook by the Defendant, according to the Plaintiffs that the latter were more interested in profit than the safety of their products. [5] The Defendant in turn, in her statement of defence denied the allegations of the Plaintiffs. In her counterclaim, the Defendant stated that feedback from clients indicated that negative reactions were caused by using one of the Plaintiffs’ products, raising safety concerns regarding the use of the same. The Plaintiffs, according to the Defendant, thereafter had to issue an email to the distributors, recalling the products from the market. Further, the products were later certified by the National Pharmaceutical Regulatory Agency to be unsafe and prohibited the sales of the same. The Plaintiffs later issued another email saying they would launch a better product with a security verification system. Attempts by the Defendant to discuss the matter with the Second Plaintiff were unsuccessful as the latter continued not to provide clarification. The Defendant prayed for damages, among others, for the loss of business. 4 At the High Court [6] Initially the learned HCJ struck out the claim by the Plaintiffs. She decided to do so because the Plaintiffs failed to file an opening statement. She then annulled her own decision without any application by the Plaintiffs. Thereafter, she decided to allow the Plaintiffs to make an oral opening statement and proceeded with the trial. [7] She also decided to disallow the Defendant to call witnesses because the Defendant failed to provide a list of witnesses and failed to file witnesses’ statements. [8] At the end of the trial, the learned HCJ gave judgment for the Plaintiffs. However, as stated, the learned HCJ did not write her grounds of judgment. As such, there is no way of knowing the reasons supporting her judgment. Grounds of Appeal [9] Before us, the Defendant decided to pursue and argue only four grounds of appeal, instead of the sixteen grounds listed in the memorandum of appeal. The four grounds are as follows:

(a) the learned HCJ was functus officio once she struck out the Plaintiffs’ claim;

(b) the Plaintiffs failed to prove their claim;

(c) the learned HCJ erred in exercising her discretion pursuant to O. 34 Rules of Court 2012 (“ROC”) in respect of the failure of both parties in adhering to instructions; and

(d) the Plaintiffs failed to translate the alleged defamatory statements into Bahasa Melayu. 5 Our Decision [10] Having regard to the election of the Appellant only to submit on the four grounds of appeal, our decision is accordingly addressed based on the issues as follows. A. Whether the learned HCJ was functus officio when she struck out the Plaintiffs’ claim [11] Having struck out the Plaintiffs’ claim, the Defendant submitted the learned HCJ could not and should not have annulled her decision and proceeded to hear the same. She was functus officio and the Plaintiffs’ case should have ended at that stage according to the Defendant. In any event, there was no application or appeal by the Plaintiffs against that decision of the learned HCJ. The Defendant further contended the learned HCJ therefore could not simply annul her own decision and reinstate the same and dispose the hearing of the case for full trial. [12] With regard to this submission, first, there is no dispute there was no written order drawn up, agreed, certified, sealed and perfected by the High Court regarding this decision of the learned HCJ. Since the order for the striking out was not perfected, the learned HCJ did not make a final order which she could not change at that stage. By analogy, we are guided in deciding this by the Federal Court case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 where it states as follows: When a judgment in the High Court has been perfected in the manner described in the above passage, a party to the judgment generally and subject to the same passage, or any other written law, and apart from any appeal, cannot reopen the matter finalized in the judgment by seeking to 6 alter it or amend it for the court would be functus officio by virtue of the ratio of Hock Hua Bank v Sahari bin Murid. Once perfected, a judgment of the High Court is also entitled to the obedience and respect from the parties to it on the basis of a command from a superior court of unlimited civil jurisdiction in the course of contentious litigation (see Issac v Robertson [1985] AC 97; Pembenaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] l MLJ 100; Puah Bee Hong & Anor v Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Teo Keng Tuan Robert, Intervener) and another appeal [1994] 2 MLJ 601). [Emphasis Added] [13] The above judgment of the apex court is suggestive that a High Court’s decision not yet perfected is still subject to review by the same judge as the order is yet to be finalised. Therefore, we do not agree with the Defendant that the learned HCJ in our present case could not change her mind not to strike out the Plaintiffs’ claim. As long as the order is not perfected, she is entitled to take a different stand from the one she initially did. [14] It should, therefore follow, that there is no application needed from the Plaintiffs to request that the striking out of the suit be annulled. There is nothing to be retracted as there was no final decision made by the learned HCJ then, since no order has been perfected with respect to the striking out of the Plaintiffs’ claim. B. Whether the Plaintiffs had failed to prove their claim [15] As stated, there are two parts of the claim of the Plaintiffs. One is regarding defamation, specifically libel. The other is malicious falsehood. [16] In respect of both, what is crucial to consider is the fact that the Defendant was ordered by the learned HCJ not to call witnesses. That 7 includes the Defendant herself in defending the case. This came about because the learned HCJ was not satisfied with the Defendant’s failure to provide a witness list prior to full trial and also witnesses’ statements. [17] Be that as it may, the Plaintiffs still would need to prove their case. The Defendant may not call any witnesses but the Plaintiffs still have the duty to prove their case on the balance of probabilities. [18] Towards ascertaining this objective, first, it would be fitting to note the difference between proving libel and malicious falsehood since these two actions as explained are filed by the Plaintiffs. The difference is explained in the Court of Appeal case of SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (M) Sdn Bhd [2008] 4 MLJ 187 as follows: [26] Malicious falsehood and libel are distinct torts. In malicious falsehood the burden of proof that the words are false is on the plaintiff. Whereas in libel the plaintiff does not have to prove that the statement is false, for the law presumes that in his favour. In Drummond-Jackson v British Medical Association & Ors [1970] 1 All ER 1094, at p 1099 Lord Denning MR said: These two actions [of libel and malicious falsehood] must be kept distinct. They have very different consequences. In libel the law presumes everything against the writer; the words presumed to be false and malicious; and it is for the writer to prove, if he can, that the words were true and the comment was fair, or otherwise make good his defence. But in malicious falsehood the boot is on the other foot. The writer is presumed to be acting honestly and without malice; and it is for the plaintiff to prove, if he can, that the words were written by the defendant falsely and maliciously and were calculated to damage the plaintiff in his calling. [27] Similarly, in Derbyshire County Council v Times Newspapers Ltd & Ors [1992] 3 All ER 65; [1992] QB 770, at p 81, Balcombe LJ said: 8 The distinction between the torts of defamation and malicious falsehood is conveniently summarised in Duncan and Neill on Defamation (2nd Ed 1983) para 2.03. The essential differences are: (1) the shift in the burden of proof: in defamation the defendant has to prove that the defamatory words were true; in malicious falsehood the plaintiff must prove that the words are false; (2) in an action for malicious falsehood the plaintiff has to prove malice as part of his cause of action; this is not so in the case of defamation. [19] While in respect of libel as part of defamation, it would be appropriate to highlight the elements of defamation. This is well illustrated by the judgment of our learned sister Asmabi Mohamad JCA (as she then was) in the Court of Appeal case of Abu Hassan Hasbullah v Zukeri Ibrahim [2018] 3 CLJ 726 as follows: [36] In a defamation case, the learned judge has a duty to rule on the three essential ingredients of the tort of defamation before he proceeds to decide on the defences pleaded by the defendant in his defence. Firstly, the learned judge ought to determine if the impugned emails were capable of bearing the defamatory meaning as ascribed in para. 9 of the SOC. Secondly, the learned judge ought to examine if the impugned emails referred to the plaintiff. Lastly, the learned judge ought to have resolved if the impugned emails were published to a third person. (see Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321) Abdul Rahman Talib v. Seenivasagam & Anor [1964] 1 LNS 2; [1965] 1 MLJ 142; Kian Lup Construction v. Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32; Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56; Tun Datuk Patinggi Haji Abdul Rahman Ya'kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304; [1996] 1 MLJ 393; Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor [2008] 2 CLJ 814). [Emphasis Added] [20] Guided by the above decision, the three elements required in our present case for defamation are listed as follows: 9

(a) the statements made by the Defendant must bear a defamatory meaning;

(b) the statements refer to the Plaintiffs; and

(c) the statements were published to a third person. [21] In respect of the second element, it has been agreed in the agreed facts by both parties that the statements were made with regard to the Plaintiffs’ products. While for the third element, it has also been agreed in the agreed facts that the statements were published in the Defendant’s Facebook. Therefore, what remains to be determined is whether the statements are defamatory in nature. [22] In this respect, the leading textbook Gatley on Libel and Slander (9th Ed), 1998 states as follows: What is defamatory. There is no wholly satisfactory definition of a defamatory imputation. Three formulae have been particularly influential: (1) Would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally’?; (2) Would the imputation tend to cause others to shun or avoid the plaintiff?; and (3) Would the words tend to expose the plaintiff to ‘hatred, contempt or ridicule’?. [23] While in the Court of Appeal case of Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 CLJ 461 it is said as follows: … 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. [24] Thus, having in mind the quotations above, would the statements made by the Defendant in this case lower the Plaintiffs in the estimation 10 of right-thinking members of society in general? Would the statements impute dishonourable conduct on the part of the Plaintiffs? [25] There are several statements made by the Defendant in her Facebook that could be considered as defamatory having regard to what is explained by the textbook and case law as highlighted above. The statements are as follows:

(a) the Plaintiffs’ products are harmful to skin. Stop using it immediately;

(b) they (Plaintiffs) are more concerned with making money instead of solving problem;

(c) they (Plaintiffs) are trying to fool me with their lies instead of solving problem. How dare they cheat dealers and customers? [26] There are other statements made. However, the above would be sufficient to constitute defamation having regard again to the textbook and case law alluded to earlier. Since the statements made were in the Defendant’s Facebook, the same were for public consumption. Hence, the Plaintiffs have proven their case for defamation. [27] What about malicious falsehood? Have the Plaintiffs proven their case for this tort? As noted by the Court of Appeal case of SV Beverages which was referred earlier, for this tort, the burden is on the Plaintiffs to prove the statements are false. It is more onerous for the Plaintiffs to prove this tort. (See the case SV Beverages above). [28] It is also relevant to note that the Federal Court in the case of Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729 laid down three conditions in proving malicious falsehood as follows: 11 [39] In order to establish a claim under malicious falsehood, it is trite law that the plaintiff bears the burden of proving the following elements:

(i) that the defendant published about the plaintiff words which are false;

(M) Bhd & Anor And Other Appeals [2008] 6 CLJ 697; [2008] 3 MLJ 492, Horrocks v. Lowe (supra). [32] Having regard to the passages shown, with respect, we could not say that the matters explained by the Federal Court above have been proven by the Plaintiffs. For instance, the Defendant could not be harbouring ill-will or evil motive against the Plaintiffs. The relationship between the Plaintiffs and Defendant as a dealer of their products has been established for some time. They were having a business relationship which was mutually beneficial to both parties. To say that there was an evil motive on the part of the Defendant is simply not proven based on the facts of this case. What good will it do to the Defendant for her to have an 13 evil motive when the business between her and the Plaintiffs had been profitable to both, at least up to a certain point? They were not rivals or in competition. [33] On top of that, as pointed out by the apex court above, in law, an act is malicious if done intentionally without just cause or excuse. It is also said, so long as a person believes in the truth of what he says and is not reckless, "malice" cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair. These statements of the Federal Court might well exonerate the Defendant’s action. [34] In any event it is difficult to say that the Defendant’s acts were maliciously done without just cause or excuse. This fact should not hastily be determined or decided when the Defendant has been instructed not to call witnesses. Without witnesses, it could not be said that the Defendant had with intent acted maliciously without just cause and excuse. The witnesses if allowed to be called, might well prove there was never a malicious act without just cause or excuse by the Defendant. [35] With respect, based on the reasons aforesaid, we find that the Plaintiffs’ claim for malicious falsehood had not been proven. C. Whether the learned HCJ erred in exercising her discretion pursuant to O. 34 ROC in respect of the failure of both parties in adhering to instructions [36] In respect of this issue, as stated the learned HCJ decided two things:

(a) striking out the Plaintiffs’ claim and then cancelling that decision; and 14

(b) not allowing the Defendant to call witnesses for the full trial. [37] In this regard, it is relevant and important to note that O. 34 r. 1 of the ROC states as follows:

Orders and directions for just, expeditious and economical disposal of proceedings (O. 34 r. 1)

(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

(b) Overriding Objective 17 One of the important principles entrenched in CPR 1998 in England is the concept of "overriding objective" which is to deal with cases justly. The court has to give effect to the overriding objective in all stages of proceedings, inclusive of decision-making process and when interpreting the rules. This concept requires the judge to actively manage the case from the time of commencement. ... The primary function of the courts from time immemorial is to dispense justice. Where courts decline to hear cases on merits but are inclined to dismiss cases on technicalities then the primary purpose for the courts' existence is defeated. The English Courts in applying principles of 'overriding objective' enunciated in CPR 1998 had condoned technical as well as procedural breaches. In Jones v. Telford (The Times, 29 July 1999), the Court of Appeal stated that the court must not lose sight of the fact that its primary concern is to dispense justice. In this case, service had been delayed beyond the period of validity. The reason was that the plaintiff's solicitor had difficulties in obtaining psychiatric reports for service with the particulars of claim. The Court of Appeal upheld an extension of time. (See Chilton v. Surrey Country Council (1999) LTL 24/6/99; Carla Homes (South) Ltd v. Chichester District Council, The Times, 15th October 1999). D. Whether the Plaintiffs failed to translate the alleged defamatory statements into Bahasa Melayu [44] There is no dispute the alleged defamatory statements by the Defendant were in English. The Defendant submitted these statements must be translated into Bahasa Melayu before the court. First, the Defendant referred to O. 92 r. 1 of the ROC in support of this contention. It states as follows:

Language of documents (O. 92 r. 1)