See Kok Seng v Liew Swee Yee (WA-23NCvC-40-10/2017 (Encl. 12))

LIEW SWEE YEE

NG CHEE FAI (NRIC NO.: 750106-14-5623) …RESPONDENTS [IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL SUIT NO. : WA-23NCVC-40-10/2017] BETWEEN SEE KOK SENG (NRIC NO.: 730511-10-5707) …PLAINTIFF 2

LIEW SWEE YEE

NG CHEE FAI (NRIC NO.: 750106-14-5623) …DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] Enclosure 12 is the Plaintiff’s application filed on 24.1.2018 to amend his Statement of Claim filed on 11.10.2017 pursuant to Order 20 rule 8(1) of the Rules of Court 2012 (“ROC 2012”) on the ground that the amendment is necessary to reflect the actual situation (bagi mencerminkan keadaan sebenar – refer Enclosure 13 paragraph 4 of the affidavit in support of the Plaintiff’s application). FACTUAL MATRIX [2] The Plaintiff in his Statement of Claim claims that the Defendants have defamed him in the form of libel and slander. [3] On 7.3.2017, the Plaintiff alleges that the Defendants have defamed him when the Defendants’ representative known as “Ah Wei” went to the Plaintiff’s office in Petaling Jaya and the Defendants’ 3 representative known as “Ah Wai” went to the Plaintiff’s office in Kuala Lumpur to threaten the Plaintiff for payment. [4] The Plaintiff also alleges that on 15.3.2017 and 22.3.2017, the Defendants cause their workers, agents or representatives to put up posters/notices that bears the defamatory imputation against the Plaintiff. [5] The Plaintiff is now seeking to add the words stated in the posters/notices that bears the defamatory imputation against the Plaintiff together with a copy of the said poster/notice. DECISION OF THE COURT [6] Having perused all the cause papers filed in this application and after considering the submissions by both the parties, the Court dismisses the Plaintiff’s application with no order as to costs for the reasons stated below. [7] Order 20 rule 8(1) of the ROC 2012 provide as follows: “For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings.” [8] The Defendants object to the Plaintiff’s application and said that there can only be 2 reasons/purposes for the amendments i.e. to determine 4 the real issue and/or correcting an error. After going through the Plaintiff’s Statement of Claim, the Court finds that the only reason given by the Plaintiff to amend his own Statement of Claim is to add the words stated in the posters/notices that allegedly bears defamatory imputation against the Plaintiff together with a copy of the said poster/notice without any further explanation. [9] Having perused the Plaintiff’s application to amend the Original Statement of Claim, the Court is satisfied that the Plaintiff’s application does not satisfy two of the three-limb test outlined by the Federal Court in the case of Yamaha Motor Co. Ltd v. Yamaha Malaysia Sdn. Bhd. [1983] 1 MLJ 213 where it held: “

the general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (a) whether the application was bona fide (b) whether the prejudice caused to the other side can be compensated by costs and (c) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.” 5 [10] Looking at the proposed amendments to the Original Statement of Claim, the Court finds that the Plaintiff failed to show how the amendments would be able to determine the real issue, or that it was for the purpose of correcting any error. The amendments proposed by the Plaintiff in the opinion of the Court, would not make the Plaintiff’s Statement of Claim clearer as far as the nexus between the Defendants and the defamatory words is concern. [11] Even if the amendments to the Plaintiff’s Statement of Claim is allowed, the Plaintiff still could not establish any claim against the Defendants because there is nothing in the Plaintiff’s Statement of Claim to connect the Defendants with the defamatory words. It is clear that the Plaintiff’s Statement of Claim failed to fulfill the 3 ingredients needed to be able to succeed in a claim for defamation as the Plaintiff’s Statement of Claim lack particulars as to how and who uttered/published the defamatory words against the Plaintiff. [12] The proposed amendments could not cure the Plaintiff’s original Statement of Claim because the Plaintiff has failed to comply with the compulsory requirements of Order 78 of the ROC 2012 as discussed earlier. It is settled law that in order to maintain an action or claim for libel or slander, a plaintiff must fulfill the requirements of Order 78 rule 6 3 ROC 2012. From the observation made by the Court, the Plaintiff has failed to provide any explanation in his affidavit as to why such a timely Amendment Application is made or that when or how the enclosed notice/poster was obtained. In fact, a cursory view on the enclosed notice/poster will show that it has no nexus with the Defendants. [13] It is noteworthy to mention, that this Amendment Application have delayed the disposal of Enclosure 8 to strike out the Plaintiff’s claim. On the issue of delay in the progress of a case, in the case of Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 Zulkefli CJ (Malaya) said: “[18] … Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles 7 in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80). … [26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime.” 8 [14] Therefore, for the reasons stated above, the Plaintiff’s application to amend the Statement of Claim is dismissed without costs. Dated 24th April 2018. …………………………………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. Ms. Siti Zubaidah binti Jemadi (Counsels for the Plaintiff / Appellant) Messrs. Farid Wong & Wee Ms. Adelin Phung Pui Lin & Mr. Irwin Lo Chi Vui (Counsels for the Defendants / Respondents) Messrs. Lo Chambers