See Kok Seng v Liew Swee Yee (WA-23NCvC-40-10/2017 (Encl. 8))

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 (8) is the Defendants’ application to strike out the Plaintiff’s action pursuant to Order 18 Rule 19(1) (a), (b), (c) and/or (d) of the Rules of Court 2012 (“ROC 2012”) for the reasons below :

There is no reasonable caution against both the Defendants;

There is no nexus between the alleged defamatory words and both the Defendants;

The Plaintiff has sued the wrong party;

The Plaintiff has failed to plead the material particulars in the Statement of Claim. 3 DECISION OF THE COURT [2] Having perused the application filed by both the Defendants to strike out the Plaintiff’s action, and upon considering the submissions given by all the parties, the Court is satisfied that the Plaintiff’s action discloses no reasonable cause action against both the Defendants, it is frivolous or vexatious and, is definitely an abuse of the process of the Court. [3] Therefore, the Defendants’ application to strike out the Plaintiff’s action is allowed with costs of RM6,000.00 to be paid by the Plaintiff to the Defendants on the grounds stated below. [4] Order 18 Rule 19 of the ROC 2012 provides : “19. Striking out pleadings and endorsements (O.10 r.19) 1) The Court may at any stage of the proceedings order to be truck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that -

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious; 4

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [5] Going through the Plaintiff’s Statement of Claim it is clear that the Plaintiff has failed to establish any claim against the Defendants or to show any nexus between the defamatory words and the Defendants. The Statement of Claim reveals that the alleged defamatory actions, be it the Slander or Libel Claim, were carried out by a person named “Ah Wei” or “Ah Wai” or by 7 persons alleged to be the workers and/or agent and/or representatives of the Defendants. [6] Nowhere in the Statement of Claim about the defamatory words uttered or published by both the Defendants against the Plaintiff were stated there. From the Plaintiff’s Statement of Claim, it does not disclose that the Defendants have published or caused to be published any defamatory words or statements. [7] The fact that the Plaintiff’s Statement of Claim only reveals that the persons described have allegedly carried out defamatory actions 5 against the Plaintiff, in the opinion of the Court only proves that there is no existence of any factual situation that entitled the Plaintiff to obtain a remedy against the Defendants. [8] To succeed in a claim for defamation, the Plaintiff need to fulfill 3 ingredients and they are:

The words are defamatory in nature;

(ii) It concerns/refers to the Plaintiff; and

(iii) There was publication to the third parties. [9] This principle has been enunciated in the case of Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315 where His Lordship Mohd Dzaiddin J (as he then was) states: “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 words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published. Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or express malice 6 which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged (Rajagopal v. Rajam [1972] 1 MLJ 45).” [10] From the Plaintiff’s Statement of Claim, it is also clear that the Plaintiff has sued the wrong parties because in the prayers of the pleading, the Plaintiff has averred that the defamatory statements/words were alleged to be published by a person named “Ah Wai” or “Ah Wei” or by 7 persons BUT no mention at all that the defamatory words or statements were published or circulated by the Defendants themselves. [11] Therefore, on this point alone, this defamation action against the Defendants by the Plaintiff can be struck out by the Court. In the case of Wan Mazlan Mohamed Woojdy v Eagle One Investment Ltd & Ors [2016] 1 LNS 844, the Court had struck out the plaintiff’s defamation claim against the 2nd to 4th Defendants as there was no cause of action that can be sustained against the party who had been wrongly sued where it states: “9. Kedudukan undang-undang adalah jelas dalam tindakan libel/saman fitnah, pihak-pihak yang sepatutnya dijadikan 7 Defendan adalah pihak yang menerbit artikel yang diadu dan penulis artikel tersebut. Saya mendapati Defendan Pertama dan Defendan Kelima adalah pihak yang menerbit artikel yang diadu, manakala Defendan keenam adalah penulis artikel yang diadu. Defendan Kedua hingga Defendan Keempat bukannya pemilik ataupun penerbit ataupun penulis artikel tersebut. Rujuk The Halsbury’s Law of Malaysia di muka surat 7 yang menyatakan; "The publisher as a general rule the person to be sued as the Defendant in an action of libel or slander, or to be prosecuted for criminal defamation, is he who published the defamatory statement or caused it to be published" … Saya mendapati ekoran daripada itu Defendan Kedua hingga Defendan Keempat telah dinamakan dengan salah dalam tindakan (wrong party sued).” [12] It is also noteworthy to state, that the Plaintiff has also failed to comply with the provision under Order 78 of the ROC 2012. Order 78 rule 3 of the ROC 2012 provides : 8 “Obligations to give particulars(O.78, r.3)

3.

Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used 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 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.

Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not state in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those 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. 9

This rules 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.” [13] On the preliminary objection raised by the Plaintiff as regard to limb

of Order 18 rule 19(1) of the ROC 2012 where the Plaintiff contended that the Defendants have wrongly applied by filing an affidavit evidence and that it contravenes Order 18 rule 19(2) of the ROC 2012, the Court agrees with the Defendants’ submission that the Plaintiff’s preliminary objection is erroneous, misleading, misconceived, and not the correct position of law as the law on this issue is settled that limbs (a) to (d) of the Order 18 rule 19(1) of the ROC 2012 are disjunctive, and the Defendants may rely on any one or all of the limbs in Order 18 rule 19(1) of the ROC 2012 in the application to strike out the Plaintiff’s Writ and Statement of Claim. [14] The Federal Court in the case of Owen Sim Liang Khui v Piasau Jaya Sdn Bhd & Anor [1996] 4 CLJ 716 held: “[1] In excluding the affidavit evidence, it became plain that the learned Judge had overlooked the fact that the 1st respondent was moving the Court, not solely under O.18 10 r.19(1)(a) of the RHC, but was also relying on the other paragraphs of O.18. r.19(1) as well as upon the Court’s inherent jurisdiction pursuant to O.92 r.4. Order 18 r.19(2) of the RHC prohibits the use of affidavit evidence and confines the Court to the four corners of a pleading only in applications made under O.18 r.19(1)(a). It is settled beyond doubt that affidavit evidence is always admissible upon an application made under the other paragraphs of O.18 r.19(1) of the RHC or under the inherent jurisdiction of the Court.” [15] After a careful perusal of the Plaintiff’s Statement of Claim, the Court is satisfied that not only does the Plaintiff’s pleadings discloses no cause of action against the Defendants personally, it also lacks material particulars and therefore cannot be maintained by the Plaintiff. [16] The Plaintiff has failed to fulfill the ingredients that constitute a claim in defamation, be it libel or slander and therefore, have neglected to comply with the compulsory requirements under Order 78 of the ROC

The Court finds that the Plaintiff have failed to state the following in his Statement of Claim : 11 • The Plaintiff have failed to plead in verbatim the alleged defamatory words uttered on 7.3.2017 by each of the Defendants. • The Plaintiff have failed to plead the publication and the extent of publication of the alleged defamatory words uttered on 7.3.2017 by each of the Defendants. [17] In conclusion, based on the principle enunciated in the case of Bandar Builder Sdn Bhd & Ors V United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Court finds that the Plaintiff’s Writ and Statement of Claim discloses no cause of action against the Defendants, it is frivolous or vexatious and it is definitely an abuse of the process of the Court. Therefore, the Defendants’ application to strike out the Plaintiff’s Writ and Statement Claim is allowed with costs. Dated 24th April 2018. …………………………………… (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUALA LUMPUR. 12 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)