Rowena Yeoh Pei Leng v Candy Yee Hui Men (JA-12B-29-09/2021)

a sum of RM300,000.00 as a compensation due to the injury to the reputation, financial loss and hardship suffered by the

general, aggravated and exemplary damages. [10] The Defendant in her Amended Statement of Defence strenuously denied that the Statement was defamatory. Instead, the Defendant averred that it was a fair statement of facts. [11] During the trial at the Sessions Court, the witnesses were the Plaintiff and the Defendant themselves. S/N XWlzzhfgVUejVE49Ycr3Sg [12] On 15.9.2021, the Sessions Court found that the Statement was defamatory and allowed the Plaintiff’s claim. She also ordered the Defendant to pay RM300,000.00 as the compensation as well as RM17,754.00 as the cost. [13] During the hearing of this appeal, the Defendant did not argue on the issues of the wordings of the Statement and its publication. As such, the parties were zooming on the following issues:

whether the Statement was defamatory;

whether the Plaintiff had suffered any injury to the reputation, financial loss and hardship due to the Statement; and

whether the Plaintiff was entitled to the compensation of RM300,000.00 as claimed. Whether the Defendant’s statement was defamatory [14] It is trite that in any defamation suit, the plaintiff has the duty to prove that the alleged words are defamatory, refer to the plaintiff and are published (see Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 MLJ 315 and Khalid Abdul Samad v. Dato’ Dr Hasan Haji Mohamed Ali [2016] 1 LNS 193). [15] In Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461 Gopal Sri Ram JCA (as the Lordship then was) explained what the court should do when dealing with a defamation suit as follows: S/N XWlzzhfgVUejVE49Ycr3Sg "It cannot, I think, be doubted that the first task of a court, in action for defamation, is to determine whether the words complained of are capable of bearing a defamatory meaning. And it is beyond argument that this is in essence a question of law that turns upon the construction of the words published. Having decided whether the words complained of are capable of being a defamatory meaning, the next step in the enquiry is for a court to ascertain whether the words complained of are in fact defamatory. This is a question of fact dependent upon the circumstances of a particular case." [16] In Chok Foo Choo (supra) it was decided that the alleged words must be assessed by their ordinary and natural meaning. The Court of Appeal held that – And it is beyond argument that this is in essence a question of law that turns upon the construction of the words published. As Lord Morris put it in Jones v. Skelton [1963] 3 All ER 952 at p. 958: The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v. Daily Telegraph Ltd [1963] 2 All ER 151). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to S/N XWlzzhfgVUejVE49Ycr3Sg a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. 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 [1989] 1 LNS 34[1985] 3 MLJ 334.) Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi Hj Abdul-Rahman Ya'kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304;[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. [17] The same principles were echoed in Dato' Sri Dr Mohamad Salleh Ismail & Anor v. Nurul Izzah Anwar & Anor [2021] 4 CLJ 327, where Harmindar Singh FCJ when delivering the judgment of the Federal Court had said that – [22] To ascertain the meaning of the statement or publication, the plaintiff can rely on the natural and ordinary meaning or the innuendo meaning. The consideration of the meaning of the offending words involves an objective test (see Jones v. Skelton, supra ). The offending words must be considered in the context of the whole article and not simply on isolated passages (see Lee Kuan Yew v. Derek Gwyn Davies & Ors [1990] 1 CLJ 583; [1990] 3 CLJ (Rep) 691; [1990] 1 MLJ 390; Curistan v. Times Newspaper Ltd [2009] 2 WLR 149; Mirror Newspapers v.

141 CLR 632; Keluarga Communication Sdn Bhd v. Normala Samsudin & Another Appeal [2006] 2 CLJ 46; [2006] 2 MLJ 700). In this context, Duncan & Neill on Defamation, 4th edn, described this principle at paras 5.25 to 5.28: S/N XWlzzhfgVUejVE49Ycr3Sg In order to determine the natural and ordinary meaning of the statements of which the claimant complains it is necessary to take into account the context in which it appeared and the mode of publication... It follows from the principles set out above that a claimant cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage. [18] Further, Mohd Azmi J (as the Lordship then was) underlined the following test when deciding whether the alleged words are defamatory or otherwise in Syed Husin Ali v. Syarikat Perchetakan Utusan Melayu Bhd & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56: Thus, the test of defamatory nature of a statement is its tendency to excite against the Plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the Plaintiff in the estimation of right thinking members of society generally? The typical type of defamation is an attack upon the moral character of the Plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty. [19] In Dato' Sri Dr Mohamad Salleh Ismail (supra), the Federal Court explained the defamatory statements as follows — [19] The law in respect of what amounts to defamatory matter is well-settled. An imputation would be defamatory if its effect is to expose the plaintiff, in the eyes of the community, to hatred, ridicule or contempt or to lower him or her in their estimation or to cause him or her to be shunned and avoided by them (see Dato' Seri Anwar Ibrahim v. The New Straits Times Press (M) Sdn Bhd & Anor [2010] 5 CLJ 301; [2010] 3 AMR 514; Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56; JB Jeyaretnam v. Goh Chok Thong [1984] 1 LNS 139; [1985] 1 MLJ 334; Tun S/N XWlzzhfgVUejVE49Ycr3Sg Datuk Patinggi Hj Abdul-Rahman Ya'kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304; [1996]1 MLJ 393; Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461; [1999] 1 MLJ 371). In order to prove a claim in defamation, it is also essential that the offending words are not only defamatory and that they are published but also that they identify the plaintiff as the person defamed. [20] The defamatory nature of the imputation is to be judged by the ordinary and reasonable members of the community or an appreciable and reputable section of the community (see Jones v. Skelton [1963] 3 All ER 952; Peak v. Tribune Co [1909] 214 US 185; Hepburn v. TCN Channel Nine Pty [1983] 2 NSWLR 682). The ordinary reasonable person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland (1910) 2 lr R 577). [20] In our present case, the SCJ in her grounds of judgment concluded that the Statement was defamatory based on the following findings (page 21 of the Appeal Record):

the words of “laman web Sweet Home Confinement (emoji angry x3) telah disalahgunakan (emoji angry x3)” were imputing that the Plaintiff hacked the Defendant’s website;

the statement relating to the Centre’s bank account which was stated immediately after the statement of “laman web Sweet S/N XWlzzhfgVUejVE49Ycr3Sg Home Confinement (emoji angry x3) telah disalahgunakan (emoji angry x3)” gave its readers the connotation that the Plaintiff embezzled money from the Defendant’s business;

the statement that the Plaintiff requested the money to be deposited in her personal account after resignation would have pictured the Plaintiff usurped the money which did not belong to her;

the statement that the Defendant lodged a police report due to the Plaintiff’s conduct would suggest that the latter was involved in criminal activities; and

the statement that there are many mothers became victims is imputing that the Defendant’s customers became victims of the Plaintiff’s criminal conduct. [21] Although the intention of the publisher is not relevant in a defamation suit as held in Noor Asiah bte Mahmood & Anor v. Randhir Singh & Ors [2000] 5 CLJ 407; [2000] 2 MLJ 175, the court must construe the meaning of the alleged words in the context of the entire content of the statement (see Soh Chun Seng v. CTOS-EMR Sdn Bhd [2004] 5 CLJ 46). [22] More often than not, in a slander, a defamatory statement is relatively easier to be recognised by the intonation and demeanour of the publisher compared to in a libel where the impugned statement must be carefully read in its entirety as to determine its true meaning. S/N XWlzzhfgVUejVE49Ycr3Sg [23] I have scrutinized the Statement as a whole in its natural and ordinary meaning and I find that the SCJ’s findings that the Statement was defamatory were not supported by any cogent evidence. On the other hand, I agree with the Defendant that the alleged statement was none other than –

a notice and warning to the public at large that the Plaintiff was no longer working with the Centre. This is reasonable since the public were not aware that the Plaintiff was no longer a partner in the Centre. The Defendant’s action in publishing the Statement can be justified as there was a customer (LSL in this matter) was dealing with the Plaintiff with the assumption that she was still with the Centre and this was not denied by the

to inform the public that the Centre has only one bank account;

to inform the public that the Centre would not be responsible if deposits were put into any bank account other than mentioned in the Statement; and

to inform the public that the Centre would only render its service if deposits put into the Centre’s bank account. [24] The Plaintiff herself agreed that the facts in the Statement were correct. When being cross-examined, she admitted that the facts about the S/N XWlzzhfgVUejVE49Ycr3Sg notice, the Centre’s website was misused and the Centre has only one bank account were correct. The Plaintiff testified as follows: Peg. Defendan: Page 3, Miss Candy. Now refer to first sentence. First paragraph. Starting from Sweet Home Confinement Centre until there is a emoji times 4. Can you read between the lines. So my question to you, nothing in this first sentence, in this paragraph is incorrect. It is just a mere statement to mention about notice, laman web lama Sweet Home telah disalahgunakan, angry. Akaun di bawah nama Sweet Home hanya ada

So I put to you my question there is nothing incorrect about this statement. Saksi SP 1: Mean everything is correct? Peg. Defendan: Ya. From the first paragraph. I go first paragraph first Saksi SP 1: Yes. Its correct [25] I also find that there is not even an iota of evidence to support the SCJ’s finding that the Statement was imputing that the Plaintiff hacked the Defendant’s website. It is my view that a mere statement that the Centre’s website was misused could not be the solid reason for the SCJ to jump to a conclusion that the Defendant had accused the Plaintiff as the person who hacked the website. [26] Further, the SCJ’s finding that the Statement gave its readers the connotation which the Plaintiff usurped and embezzled money from the Defendant’s business, I find that the finding is without any evidence. The S/N XWlzzhfgVUejVE49Ycr3Sg Plaintiff in her evidence agreed that the Defendant did not accuse her as a theft. The note of proceedings states as follows: “Peg. Defendan: So you agree that Miss Rowena never mentioned in this post that you are liar who steal the money from the client. Is it correct? Saksi SP 1: Correct [27] Likewise, there was no ample ground for the SCJ to support its finding that the police report lodged by the Defendant would suggest that the Plaintiff was involved in criminal activities. It is my view that a mere police report about the deposit received by the Plaintiff on behalf of the Centre from a customer cannot be perceived that the Defendant had defamed the Plaintiff as a criminal. Concurring with the SCJ’s finding would set a bad precedent that a person who lodges a police report can be concluded as defaming the person mentioned in the report. [28] The SCJ further wrote in her grounds of judgment that an internet user by the name of Lou Wei Lan had shared the Statement with another Facebook public group and accused the Plaintiff as “seorang pencuri dan telah menipu sejumlah besar daripada syarikat”. This, according to the SCJ, represents that the third party’s interpretation and perspective about the Statement and its impact. However, I find that Lou Wei Lan was not called to testify in court on her background and why such conclusion was made. Thus, I find that Lou Wei Lan’s statement could not be accepted as to represent the majority view of the readers. S/N XWlzzhfgVUejVE49Ycr3Sg [29] In light of the above, after considering the Statement and the context of why it was published by the Defendant, I find that there is nothing in the Statement that could be calculated to expose the Plaintiff to hatred, ridicule or contempt in the mind of a reasonable man. The Statement is a fair statement resulting from the incidents happened between the Plaintiff and the Defendant with the clear intention of informing the public about the current status of the Centre. Thus, I hold that the Statement is not defamatory. Whether the Plaintiff had suffered any injury to the reputation, financial loss and hardship due to the Statement [30] The issue of whether the Plaintiff had suffered any injury to the reputation, financial loss and hardship due to the Statement was not discussed by the SCJ. Nonetheless, in the Plaintiff’s Witness Statement, it was stated as follows: 21)S: Apakah akibat kenyataan tersebut disebarkan? J: Kenyataan tersebut telah memaparkan saya sebagai seorang yang sangat berperangai teruk dan menyebabkan ahli masyarakat di tempat saya memandang rendah terhadap saya. Saya mengalami reputasi yang teruk dan keluarga saya juga berasa malu untuk berhadapan dengan masyarakat sekeliling. Saya sentiasa dikenakan penyalahgunaan, penghinaan, kebencian, dan soal siasat di kalayak umum dan orang awam. Kerjaya saya sebagai seorang ejen insurans di mana kepercayaan orang ramai amat penting juga terjejas. S/N XWlzzhfgVUejVE49Ycr3Sg [31] I find that this is the only statement given by the Plaintiff about what she had suffered as a result of the Statement. However, this statement was not supported by any evidence whatsoever. [32] It has to be noted that s. 103 of the Evidence Act 1950 requires that whosoever wishes any court to believe the existence of particular facts, the burden is on him to prove those facts do exist. Hence, in the present case, the burden of proof falls upon the Plaintiff to prove the truth of the facts which she stated in the witness statement. [33] The failure of the Plaintiff to produce any evidence to prove her allegations, does not shift the burden to the Defendant to provide any evidence as to deny those allegations (see Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627). [34] In the upshot, since the Plaintiff failed to do so, then the court has no choice but not to take cognisance of any averment on the injury to her reputation, financial loss and hardship due to the Statement published by the Defendant. Whether the Plaintiff was entitled to the compensation of RM300,000.00 as claimed [35] The Plaintiff in her Statement of Claim pleaded for the damages of RM300,000.00. But there was no reason stated therein as to justify the amount. Nonetheless, the SCJ in her grounds of judgment allowed such quantum after taking the following considerations:

the Plaintiff’s job as an insurance; and

all 54 comments and 123 shares of the Statement by the Facebook readers. [36] Similar to the Plaintiff, the SCJ also did not explain in detail on how the above reasons could justify the compensation of RM300,000.00. [37] It has to be noted that as far as damages in defamation suits are concerned, Gopal Sri Ram JCA (as he then was) had laid down important principles in Chin Choon v Chua Jui Meng [2005] 2 CLJ 569 – In Defamation Law, Procedure & Practice by Price & Duodu (3rd edition, para 20- 04 at p. 208) the learned authors set out the several factors that a court must take into account in assessing compensatory damages. This is what they say: The amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of factors:

The gravity of the allegation.

The size and influence of the circulation.

The effect of the publication.

The extent and nature of the claimant's reputation.

The behaviour of the defendant.

The behaviour of the claimant. This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court may take into account when making an assessment. S/N XWlzzhfgVUejVE49Ycr3Sg [38] In Stemlife Bhd v. Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor [2014] 1 LNS 1398; [2014] MLJU 1768, the court expounded the functions of general damages as follows: It is trite that general damages serve three functions. Firstly, it is to act as a consolation to the claimant for the distress he suffers from the publication of the defamatory statement. Secondly, it is to repair the harm to his reputation (including, where relevant, his business reputation). Thirdly, it is a vindication of his reputation (see Gatley on Libel and Slander, 11th Edition, para. 9.2, at page 265). [39] In Jameel per Baroness Hale [2006] 4 All ER 1279, it was held that – "[76] The tort of defamation exists to protect, not the person or the pocket, but reputation of the person defamed. [40] As the Plaintiff failed to prove that she suffered any injury to her reputation, financial loss and hardship due to the Statement published by the Defendant, I find there was insufficient judicial appreciation of the evidence by the SCJ to grant such amount of award. Instead, I find that nominal damages are fair and reasonable. [41] In Stemlife Bhd (supra), the phrase of nominal damages is expounded as follows: It is trite that "nominal damages" is a technical phrase which means that a plaintiff has failed to prove that he has suffered real loss or damage. Nominal S/N XWlzzhfgVUejVE49Ycr3Sg damages are a low or token sum of damages which is awarded to a plaintiff on the ground that he is entitled to a verdict or judgment in his favour because his legal right is infringed but who has failed to prove that he has suffered any real loss or damage arising from the infraction of his legal right. In the Owners of the Steamship "Mediana" v. The Owners, Master and Crew of the Lightship "Comet" [1900] AC 113, the House of Lords described "nominal damages" as follows at p. 116: ""Nominal damages" is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed". Conclusion [42] It was decided in Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56 that the appellate court should not interfere with the finding of the court below unless that court is shown to be plainly wrong in arriving at its decision or there has been no or insufficient judicial appreciation of the evidence. [43] In Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67, Zabariah FCJ when delivering the judgment of the court had said– [148] Given the aforesaid, we form the view that rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the "plainly wrong" test as espoused in decisions of this S/N XWlzzhfgVUejVE49Ycr3Sg court should be retained as a flexible guide for appellate courts. As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts. [44] Having considered the facts and the circumstances of the present appeal, I find that the SCJ was wrong in arriving at her decision. Thus, I allow the Appellant’s/ Defendant’s appeal with costs and the SCJ’s decision is set aside. Dated: 15.2.2023 - - SIGNED - (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, High Court, Johor Bahru Counsels: For the Appellant – Jane Yeo; Messrs. Chiong & Partners For the Respondent – Irwin Ng Jien Tark; Messrs. Allen Loh & Co. Cases referred to:  Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 MLJ

 Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461 S/N XWlzzhfgVUejVE49Ycr3Sg  Dato' Sri Dr Mohamad Salleh Ismail & Anor v. Nurul Izzah Anwar & Anor [2021] 4 CLJ 327  Jameel per Baroness Hale [2006] 4 All ER 1279  Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627  Khalid Abdul Samad v. Dato’ Dr Hasan Haji Mohamed Ali [2016] 1 LNS 193  Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56  Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67  Noor Asiah bte Mahmood & Anor v. Randhir Singh & Ors [2000] 5 CLJ 407; [2000] 2 MLJ 175  Soh Chun Seng v. CTOS-EMR Sdn Bhd [2004] 5 CLJ 46  Stemlife Bhd v. Mead Johnson Nutrition (M) Sdn Bhd (formerly known as Bristol-Myers Squibb (M) Sdn Bhd) & Anor [2014] 1 LNS 1398; [2014] MLJU 1768  Syed Husin Ali v. Syarikat Perchetakan Utusan Melayu Bhd & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56 Legislation referred to:  Evidence Act 1950 - s.