SUNDRA RAJOO A/L NADARAJAH v Leaderonomics Sdn Bhd (W-02(W)-1130-07/2023)

1.Leaderonomics Sdn Bhd 2.Huganeswaran a/l Veerasagram Defendan-Defendan] ``````````````````````````````` CORAM SUPANG LIAN, JCA CHOO KAH SING, JCA SHAHNAZ BINTI SULAIMAN, JCA Page 2 of 26 JUDGMENT Introduction [1] This is an appeal against the High Court’s decision delivered on 30.6.2023 which dismissed the appellant’s claim against the respondent. The respondent was named as the 1st defendant, and one Huganeswaran a/l Veerasagram was named as the 2nd defendant (hereafter “the deceased”). Before the trial began on 10.4.2023, the deceased had passed away on 31.8.2022. On 20.10.2022, the appellant’s counsel informed the court that the appellant would not pursue the claim against the deceased because the claim premised on the cause of action of tort of defamation, in law, could not survive against the deceased’s estate (see s. 8 (1) of the Civil Law Act, 1956). [2] This Court, after having considered the written and oral submissions of the parties, now provides its reasons for the decision as below. Salient facts [3] The appellant’s defamation suit, a tort of libel, arose from an anonymous poison pen letter dated 28.9.2018 addressed to the Malaysian Anti-Corruption Commission (MACC) (hereafter “the poison pen letter”). The poison pen letter was in a digital form in the format of a Microsoft Word document (hereafter “the digital copy of the poison pen letter”). The digital copy of the poison pen letter was widely and maliciously circulated and/or disseminated in social media, emails and among the circle of people who subscribed to WhatsApp, a popular software application Page 3 of 26 designed specifically to run on smartphones, tablets, and other mobile devices. [4] A second poison pen letter dated 1.10.2018 was sent to MACC. This one is in printed form (or hardcopy), and the contents are identical to the digital copy of the poison pen letter dated 28.9.202018. MACC acknowledged receipt of the hardcopy of the poison pen letter on 8.10.2018. [5] It is axiomatic that the appellant, being the plaintiff, bears the burden of proof, on the balance of probabilities, to establish all the elements of a tort of defamation action, which are (i) the words complained of are defamatory; (ii) the words refer to the plaintiff, and (iii) those words are published to third party (see Dato Sri Mohamed Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [2018] 3 MLJ 726, p. 735, COA). [6] In the High Court, the High Court judge did not make a finding on the first and second elements of the defamation suit. However, the contents of the digital copy of the poison pen letter were clearly referring to the appellant, and the contents were also clearly defamatory in nature, if they were not true. The parties’ submissions in the High Court were centered on the third element which was the publication of the digital copy of the poison pen letter. [7] On the issue of publication, the central argument was not whether the impugned defamatory statements in the digital copy of the poison pen letter were communicated to third parties. That fact was not in dispute. Rather, the central argument was whether the respondent could be held responsible for the dissemination of the impugned defamatory statement Page 4 of 26 in the digital copy of the poison pen letter vis-à-vis whether the respondent was the party responsible for the publication. In Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729, 743, FC, it was held an impugned statement not only has to have been published to third party, but the impugned statement must also have been published by the defendant; in the present case, the respondent here. [8] Therefore, in order to constitute publication in the context of a defamation suit, the appellant has to prove the respondent was the one who disseminated the impugned statement in the digital copy of the poison pen letter to a third party (see also Lysko v Braley (2006) 79 O.R. (3rd) 721 Ont, CA), and not just prove it was communicated to a third party. [9] The respondent denied that it was the party who disseminated the digital copy of the poison pen letter, therefore, it could not be held responsible either jointly and/or severally with the deceased for writing and/or publication of the digital copy of the poison pen letter. [10] In the High Court, the parties agreed that the issue, among others, to be tried was whether the respondent had either jointly and/or severally with the deceased written and/or published the digital copy of the poison pen letter. However, in the course of post-trial submissions, the appellant’s counsel confined his submission to and emphasized on the issue whether the respondent was jointly and/or severally with the deceased responsible for the publication of the digital copy of the poison pen letter, to wit, whether the respondent jointly and/or severally with the deceased were the parties who had disseminated the digital copy of the poison pen letter to a third party. Page 5 of 26 [11] It is instructive to understand the narrative of the appellant’s case in order to appreciate as to why the appellant’s counsel took the position to just focus on the publication of the digital copy of the poison pen letter. [12] The appellant appointed one Akash Rosen (PW3) (hereafter “A. Rosen’), a digital forensic expert, to verify the author, analyze the metadata (detailed properties about the file) and the origin of the digital copy of the poison pen letter. [13] A. Rosen came up with his first report dated 28.11.2021, and the report revealed that the Microsoft document file was created by a user (actor) known as “Leaderonomics”. The Microsoft document file was created on 26.9.2018 (at 10:22 p.m.). The said Microsoft document file was last saved by “Leaderonomics”, and last modified on 28.9.2018 (at 11:45 a.m.). The report stated that if there were any changes or editing done to the Microsoft document file, the document properties (metadata) would update in the “Last Modified By” and “Last Modified” date attributes. The report also stated that the Microsoft document file “was created in a host (PC or Notebook) from Leaderonomics organization.” [14] The appellant averred that the deceased (2nd defendant), before joining the respondent, was employed by Asian International Arbitration Centre (hereafter “AIAC”) between January 2016 and March 2018, which at that material time the appellant was the Director of AIAC. The deceased, whilst in the employment with AIAC, had wide access and was privy to information and documents relating to AIAC and the appellant. The deceased resigned from AIAC in March 2018. The deceased left AIAC and the appellant in bad terms over the issue of promotion in the organization. The appellant in his pleadings, particularly paragraph 23 of Page 6 of 26 the Amended Statement of Claim, advanced the narrative that the digital copy of the poison pen letter came about because the deceased authored the same out of spite. [15] The appellant further averred that the deceased was employed by the respondent between 2.7.2018 and 16.5.2019, and it was during that period the digital copy of the poison pen letter was created using a computer (or notebook/laptop) belonging to the respondent. The deceased was granted access to and was using the facilities of the respondent, including but not limited to computers belonging to respondent. [16] Based on the finding in the IT expert report, the appellant believed that the digital copy of the poison pen letter was created on a computer or notebook/laptop belonging to the respondent. From the appellant’s pleaded facts, the appellant contended it was the irresistible conclusion and/or irresistible inference from the facts that the digital copy of the poison pen letter was jointly and/or severally written and published and/or caused to be written and/or caused to be published by the respondent and the deceased. Hence, according the appellant’s claim, the respondent and the deceased were therefore jointly and/or severally responsible and liable for the writing and the publication of the digital copy of the poison pen letter. [17] As mentioned earlier, the appellant’s counsel did not pursue the claim on the responsibility of authorship, i.e., jointly and/or severally writing, of the digital copy of the poison pen letter. The appellant’s counsel focused only on the responsibility for the publication, i.e., the actual source of dissemination of the digital copy of the poison pen letter. Page 7 of 26 The decision of the High Court [18] Essentially, the High Court judge was of the considered view that for an institution, a company like the respondent, to be liable for defamation, the defamatory statement must be officially issued by the company to a third party; or when the defamatory statement is put on the company’s database which can be accessed by third parties; or in other instances where the company is a publisher of a newspaper and the defamatory statement appears on its newspaper, or when the company is a television station and the defamatory statement was broadcast on its news channel; or that a defamatory statement was spoken to a third party by the company employee and/or agent for and on behalf of the company. In the appellant’s case, the facts could not fit into any of the above instances. [19] The High Court judge made a finding of fact that there was no evidence that could suggest the digital copy of the poison pen letter was published through the respondent’s employee and/or agent, that includes the deceased as well when he was an employee of the respondent, at that material time when the digital copy of the poison pen letter first surfaced and was disseminated to third parties. The High Court judge even went on to state that even if the digital copy of the poison pen letter was “issued” by the deceased, it was not proven that the deceased had issued the same for and on behalf of the respondent. [20] The High Court judge found no assistance in the authorities cited by the appellant’s counsel, as those cases merely addressed the principles governing how a court may attribute responsibility for an anonymous defamatory letter to a particular individual defendant. In the present case, Page 8 of 26 the appellant did not identify or plead the employee of the respondent who had supposedly published the digital copy of the poison pen letter. [21] The High Court judge rejected the appellant’s case which relied on the IT forensic investigation to suggest that the digital copy of the poison pen letter could be traced to the respondent, and it was the respondent who had published it. The High Court judge stated that, after having evaluated the testimonies of the appellant’s two IT experts (PW3 and PW4) and the respondent’s IT expert (DW3), the “metadata analysis can be manipulated and cannot properly be regarded as reliable evidence supportive of either side’s case in a court dispute” and that the “metadata properties have little to no value in proving the authorship and publication of” the digital copy of the poison pen letter, and “it cannot identify the person who typed and or published” the same. Ultimately, the High Court judge concluded that, based on the evidence before him, he could not find that the respondent was responsible for the publication of the digital copy of the poison pen letter. [22] On the issue of s. 114A(3) of the Evidence Act 1950 (hereinafter “EA 1950”), the High Court judge found that the respondent had successfully rebutted the presumption in s. 114A(3) of EA 1950 in that at the material time, the respondent did not have custody or control of the notebook/laptop purportedly used to publish the digital copy of the poison pen letter, and it was the deceased who was having custody and control of the notebook/laptop. [23] Based on the above finding of facts, the High Court judge was not satisfied that the appellant had discharged his burden of proof for the respondent to be held responsible for causing or having caused the Page 9 of 26 publication vis-à-vis the respondent was not the party who had disseminated the impugned statement in the digital copy of the poison pen letter to a third party. Analysis and finding of this Court [24] It is observed that the High Court judge’s analysis was focused on there being someone identifiable from the respondent organization who had published the digital copy of the poison pen letter. The High Court judge was of the considered view that the respondent being a corporate entity, and not a human, could not act on its own. The respondent could only act through the agency of a natural person (see para [82] of the Judgment). [25] The High Court judge found that it was not the appellant’s case that an authorized employee of the respondent published the digital copy of the poison pen letter, but the respondent itself published the same (see para [86] of the Judgment). The High court judge then went on to examine the evidence of the metadata properties, and concluded that metadata analysis could be manipulated and could not be regarded as reliable evidence (see para [94] of the Judgment). The High Court judge went through and examined several cases from foreign jurisdictions, and further concluded that the metadata properties in the digital copy of the poison pen letter have “little to no value in proving the authorship and publication” and it could not identify the person who typed and or published the same. [26] Before this Court, the appellant’s submission mainly focused on the invocation of the presumption of fact in publication pursuant to s. 114A(3) of the EA 1950 against the respondent. Although the appellant’s Page 10 of 26 Memorandum of Appeal raised multiple complaints against the High Court judge’s decision, the complaints could somewhat be condensed to one main point which is that the High Court judge had erred in law and fact in the application of s. 114A(3) of EA 1950. It is, therefore, instructive to reproduce the whole s. 114A of EA 1950 for examination as below. “114A Presumption of fact in publication

A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

For the purpose of this section-

“network service” and “network service provider” have the meaning assigned to them in section 6 of the

“publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.” [Ins. Act A1432: s.3] Page 11 of 26 The law [27] Section 114A of EA 1950 does not presume the fact of publication. Rather, the provision presumes the party who is responsible for the action of publishing or re-publishing the content of the publication. In substance, s. 114A of the EA 1950 presumes the existence of fact, and reverses the burden to prove otherwise, but it is not a presumption of fault-based liability. It merely deals with evidence of a presumed fact and evidential burden of proof; it does not create an offence or liability. [28] As for the fact of publication, a statement or representation in whatever form which is displayed on the screen of a computer is sufficient to be constituted as publication (see s. 114A(4)(b) of EA 1950). [29] A “computer” is defined to include an electronic, magnetic, optical, electrochemical, or other data processing device which is able to perform logical, arithmetic, storage and display functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device. The definition covers not only a single device, but include a group of such interconnected or related devices performing those functions. However, an automated typewriter or typesetter, or a portable hand-held calculator or other similar device which is non-programmable or which does not contain any data storage facility is excluded in the legal definition of a “computer” (see s. 3 of the EA 1950). [30] A device shall include, but not limited to, as follows:

An electronic device – such as a desktop computer which comprises of a monitor screen, a keyboard, a mouse and a tower which houses a circuit board/motherboard, a Central Processing Unit/CPU, a Random Access Memory/RAM, and storage space – hard disk drive (HDD) or solid-state drive (SSD). Electronic device also includes laptops, tablets, smartphones, servers and mainframes;

(ii) Magnetic device – a device able to read and write on magnetic tapes and or floppy disks;

(iii) Optical device – a device used for reading and writing on compact disc (CD), digital versatile disc (DVD); and

(iv) electrochemical device – a specialized processor or memory unit that uses electrochemical reactions.

Other data processing device could include even a smartwatch, smart television or any embedded systems, such as in motor vehicles, medical equipment or industrial machines. [31] In essence, any of the devices described above that are capable of projecting or displaying a statement or representation, in some form, on a screen or monitor, shall be sufficient in law to constitute as publication. [32] It is important to note that the definition of “publication” in s. 114A(4)(b) of the EA 1950 carries a distinct meaning from the meaning of “publication” in the context of a defamation action. The former merely requires that such statement or representation, in whatever form, be displayed on the screen of a computer. The latter requires that such statement or representation, in whatever form, is not just displayed on a computer screen, but it is communicated to a third party. Therefore, the Page 13 of 26 proving of publication within the meaning of s.114A(4)(b) of the EA 1950, and the invocation of the presumption of the party who is responsible for the publication is insufficient to establish “publication” in the defamation sense. The publication to a third party is still an essential ingredient to be proven in a defamation action. [33] The presumption of the party who is responsible for the publication (displayed on the screen of a computer) comes in three distinct situations. First, the party depicting himself, through a name, a photograph or pseudonym, as the owner, host, administrator, editor or sub-editor of the publication, or who in any manner facilitates to publish or re-publish the publication, is presumed to have committed the act of publishing or re-publishing the contents of the publication, unless the contrary is proved. Secondly, the person who signed up as the subscriber of a network service provider (commonly known as an internet service provider), and something is published in that network service which traces to the person, then the law would presume that person is the one who posted or shared the contents of the publication, unless the person is able to prove he/she did not commit the act of publishing or re-publishing the publication. Lastly, is where the publication traces to a computer that a person has the computer in his custody or control, the law presumes that person committed the act of publishing or re-publishing the publication. It is observed that the last situation emphasizes on the device on which the publication could be traced from. Applying the law [34] It is not in dispute that the digital copy of the poison pen letter had been communicated to third parties through being displayed on the Page 14 of 26 screens of many electronic devices, such as desktop computers, laptops and smartphones. Hence, it could safely be said that the definition of “publication” in s. 114A(4)(b) of the EA 1050 has been met and publication to third parties is also met in the appellant’s case. The next crucial question is whether the evidence in the appellant’s case could satisfy the application of s. 114A(3) of the EA 1950 to presume the respondent to be responsible for publishing or re-publishing the contents of the publication. [35] There are two key elements that are required to be met before the presumption could be invoked; and they are embedded in these operative words: first, has in his custody or control any computer, and secondly, any publication originates from. Reading the two key elements together, the emphasis is on the device where the publication originates from. This can be explained in the following illustrations as below: Illustration 1: A statement is displayed on the screen of a device A. Therefore, publication is made out through device A. The publication originates from device A. It follows that the person who has in his custody or control of the device A is, therefore, presumed to have published the contents of the publication. Illustration 2: Flowing from illustration 1, in the event the statement is now sent to device B from device A, and the statement is displayed on the screen of device B. Therefore, publication is also made out through device B. This time, the publication originates from device A. It follows that the person who has in his custody or control of device A on which the publication (on the screen of device B) originates from is presumed to have published the content of the publication. Page 15 of 26 Illustration 3: Flowing from illustration 2, in the event the same statement which is displayed in device B is now sent to device C, and the statement is displayed on the screen of device C. Therefore, publication is also made out through device C. This time, the publication originates from device B. It follows that the person who has in his custody or control of device B on which the publication (on the screen of device C) originates from is presumed to have re-published the content of the publication. [36] The word “originates” in dictionary meaning has two connotations: first, to come from a particular place, time or situation; second, to start something or cause it to happen. The first meaning covers the situations in Illustrations 2 and 3 vis-à-vis the publication comes from a particular device (place) at certain time and situation. Whereas, the second meaning covers the situation in illustration 1, in other words, the point of time the statement concerned first appears on the screen of a device. [37] In the appellant’s case, evidence suggests there were three publications. The first was from a notebook (DELL XPS Notebook S/N: HZ0Z0N2) on which the digital copy of the poison pen letter was attached in an email sent from an email address “dk@mustapharaj.com” (Danny) to the email address “michelle_sunita@hotmail.com” on 30.10.2018. The digital copy of the poison pen letter appeared on the screen of the notebook (which presumably belonged to one Michelle Sunita). Hence, publication could be made out. The digital copy of the poison pen letter also appeared in two separate groups of WhatsApp subscribers. One appeared in a smartphone device (iPhone/iOS) that belonged to Vanitha Page 16 of 26 (PW2), and the publication originated from someone by the name of Phillip Koh. The second one appeared from a Cloud-Backup that belonged to one Dr. David Foong (PW5) and the publication originated from a remote party identified as No. 85298513185. [38] This Court observed that all three publications did not show any evidence as to the device or devices on which the publications were originated from. [39] However, the appellant urged this Court, based on circumstantial evidence, to make an inference of fact that the publications originated from a device, particularly a laptop that was used by the deceased, and that device belonged, and still belongs, to the respondent. The appellant submitted that the circumstantial evidence also points to an irresistible conclusion and/or irresistible inference that the deceased was the one who wrote the digital copy of the poison pen letter, and it was the deceased and the respondent who jointly and/or severally published the same. [40] Those circumstantial evidence the appellant relied on are (i) the IT experts’ opinions (PW 3 and PW4) that the author of the digital copy of the poison pen letter came from “Leaderonomics”; (ii) the deceased was in the employment of the respondent when the digital copy of the poison pen surfaced sometime end of September or beginning of October 2018; (iii) the deceased had access to the laptop belonging to the respondent or the deceased was provided with a laptop by the respondent; (iv) the deceased had access and privy to all the information in AIAC involving the appellant;

the deceased left his employment with AIAC with an acrimonious relationship due to promotion issue; (vi) the respondent was only willing Page 17 of 26 to disclose information subject to conditions set by the respondent; and

(vii) on 31.5.2021, the respondent’s own lawyer confirmed the deceased was in its employment and was provided with a laptop for his use for company purposes. [41] The appellant submitted that the metadata properties of the digital copy of the poison pen letter extracted from the three sources revealed that the author of the Microsoft document file was “Leaderonomics”. Based on this finding, the appellant submitted that the digital copy of the poison pen letter must have come from a device belonging to the respondent. In other words, the point of time the digital copy of poison pen letter first appeared was from a device belonging to the respondent. Hence, the three publications originated from a device which belonged to the respondent, and the respondent had custody or control of the device, the appellant’s counsel submitted. [42] This Court observes that the appellant, instead of tracing the devices on which the publications originated from within the meaning of the first connotation, had relied on the meaning of the second connotation in that “originates” means “to start something or cause it to happen”, which translates to the device on which the digital copy of the poison pen letter first appeared and was published. Based on the appellant’s case, it could be explained in the following illustration below: Illustration 4: Flowing from illustration 3, in the event the same statement which is displayed in device C is now sent to device D, and the statement is displayed on the screen of device D. Therefore, publication is also made out through device D. This time, relying on the second connotation of the meaning of Page 18 of 26 “originates”, to wit, where the point of time the statement first appeared, the publication would have originated from device A. It then follows that the person who had in his custody or control of device A on which the publication (on the screen of device D) originated from is presumed to have published or re-published the contents of the publication. [43] This Court, after having meticulously examined and scrutinized the wording of the provision, accepts and is satisfied that the provision could cover the scenario as submitted by the appellant. This is because, the word “originates from” could also mean the point of time the statement or representation first appeared, it need not necessarily mean it originates immediately from the device that sent the statement or representation. Hence, the appellant could rely on s. 114A(3) of the EA 1950, but the appellant is still required to satisfy the first key element, to wit, the appellant has to prove that the respondent had in its custody or control the particular computer/laptop (the device) that the digital copy of the poison pen letter had originated from. [44] This Court, after having considered the evidence, finds that the appellant’s case did not satisfy the first key element. In order to satisfy the first key element of the provision, it was incumbent upon the appellant to first identify the device, a particular device, not just any device, on which the publication originated from. [45] From the appellant’s IT expert report, it revealed that the author of the Microsoft document file was created by a user named “Leaderonomics”. Through this lead, the appellant’s suspicion that the deceased authored the digital copy of the poison pen letter grew stronger, Page 19 of 26 because the deceased was in the employment of the respondent at that material time and he was given a laptop to use during his employment. Hence, based on these facts, the appellant mounted his case that the digital copy of the poison pen letter came from a device belonging to the respondent. [46] There is no IT forensic evidence to link the digital copy of the poison pen letter to the particular laptop used by the deceased on which the publication purportedly originated from. The circumstantial evidence merely presupposes the digital copy of the poison pen letter came from the laptop that was used by the deceased, and that laptop was supplied by the respondent. [47] This Court is of the considered view that the appellant’s case failed to discharge the burden to establish that the digital copy of the poison pen letter in fact came from a particular laptop supplied by the respondent. [48] The appellant’s own IT expert, A. Rosen (PW3) remarked that the digital copy of the poison pen letter “was created in a host (PC or Notebook) from Leaderonomics organization.” Hence, there is no conclusive proof that the digital copy of the poison pen letter came from that particular laptop used by the deceased. [49] Based on the appellant’s own IT expert’s report, it could not be ruled out that there is a possibility that the digital copy of the poison pen letter could have come from a personal computer (PC)/desktop device, and that it need not necessarily came from the particular laptop, i.e. the device, which was used by the deceased. Page 20 of 26 [50] The metadata properties merely showed that the Microsoft document file was created by a user (actor) known as “Leaderonomics”. The IT expert report did not identify the exact electronic device that was used to create the document file, i.e., the digital copy of the poison pen letter. The only way to prove that the digital copy of the poison pen letter first appeared from that alleged particular laptop used by the deceased is through a physical and forensic examination of the data stored (or deleted) in the laptop by an IT forensic expert. [51] The appellant could have obtained a court order to compel the respondent to deliver the particular laptop used by the deceased for IT forensic investigation to establish that nexus. The appellant did not do so. The appellant took the route of relying on circumstantial evidence and attempted to move the trial court to accept it was irresistible conclusion and/or irresistible inference from the facts that the digital copy of the poison pen letter came from that particular laptop which belonged to the respondent and was used by the deceased. [52] It was in evidence that the respondent’s witness Ang Hui Meng (DW1) testified that when the appellant approached the respondent about the poison pen letter, there was a lapse of 2 ½ years since the said letter first appeared, and the respondent’s internal IT team could not retrieve / recover any work email account because the cloud email would automatically have been deleted after 60 days had lapsed. DW1 further stated that the respondent could not do anything “to ascertain whether the Letter was published by D1’s work email account(s) and/or from D1’s work device(s)” (see QA 29(b) WSDW1). Page 21 of 26 [53] Taking the appellant’s case further, even if this Court is willing to make an inference of fact based on the circumstantial evidence that the digital copy of the poison pen letter first appeared in that particular laptop which was used by the deceased, and that particular laptop was supplied by the respondent, the appellant was still required to establish that the respondent had custody or control of that particular device – the first key element. [54] The High Court judge found that the respondent was not in custody or control of that particular laptop at the material time the digital copy of the poison pen letter was published, and that the appellant himself said it was the deceased who had custody and control of the laptop used to publish the digital copy of the poison pen letter. On that score, the High Court judge found the respondent “had successfully rebutted the presumption of publication” under s. 114A(3) of EA 1950 (see paras [123] to [126] of the Judgment). [55] This Court, after having carefully analyzed the evidence, agrees with the trial judge that the respondent was not in custody or control of that particular device on which the publication purportedly originated from. This conclusion is on the assumption that this Court is willing to make an inference of fact based on the circumstantial evidence that the digital copy of the poison pen letter first appeared on that particular laptop which was used by the deceased, which this Court is reluctant to do so. This is because, first, the provision reverses the burden of proof on the respondent to prove otherwise. Secondly, to make an inference of fact based on circumstantial evidence and riding on the presumption of fact in the provision, combining the two would place the respondent in an unfair Page 22 of 26 and unjust position. It is as if a double presumption is used against the respondent. [56] In summary, this Court is not satisfied that the appellant crossed the threshold of the first key element to invoke the presumption that the respondent had published or re-published the content of the publication, as the particular device on which the publication originated from was not proved, and it was also not proven that the said device was in the custody or control of the respondent. [57] For completeness, it is observed that the High Court judge accepted that the presumption in s. 114A(3) of EA 1950 could be invoked against a defendant who has custody or control of the computer at any point in time, and yet, the High Court judge found that at that material time of publication, the respondent was not in custody or control of the computer, therefore, the respondent had successfully rebutted the presumption (see paras [120] and [121] of the High Court’s Judgment). This Court finds this legal proposition and findings are incoherent. [58] This Court is of the considered view that if the High Court judge accepted that custody or control of the device could be at any point in time in order to invoke the presumption, then it would be immaterial whether the respondent did not have custody or control of the device during the specific period when the deceased was the one having it in his custody or control given that the digital copy of the poison pen letter was alleged to have been created on 26.9.2018. Hence, this Court finds the reasoning of the High Court judge on this part is irreconcilable between the legal proposition and the application. Page 23 of 26 [59] This Court is of the considered view that, in the context of a defamation action, the relevant time at which custody or control of the device responsible for the publication is of critical importance. This is because the phrase “any person who has in his custody or control” proffers that at that material time the person has with him the physical device in his custody or control. Therefore, if one could prove that he did not have with him the device in his custody or control at that material time the publication was made, then he would be able to rebut the presumption and exonerate himself from liability in a situation where another person had used the device to publish the defamatory statement or representation. [60] This Court is of the considered view that the cases relied on by the High Court judge to suggest the proposition that a defendant who has custody or control of the computer at any point in time is sufficient to invoke the presumption is erroneous. In Public Prosecutor v Razis bin Awang [2020] MLJU 132, HC, the High Court found there was evidence in the computer to link the accused for the offences he was charged. The High Court judgment did not contain any proposition relating to the material time of the possession of the computer on which the publication was made, unlike the present case which is material in the context of a defamation action. Summary [61] This Court finds the appellant’s case has failed to prove the digital copy of the poison pen letter which was published in fact came from a particular device that belonged to the respondent. The mere fact that the author of the Microsoft format file shows the name “Leaderonomics” could Page 24 of 26 only prove the Microsoft format file first appeared in a device with the user named “Leaderonomics”; it could not prove the publication originated from a particular device used by the deceased. Section 114A(3) of the EA 1950 emphasizes the particular device on which the publication originates from. The emphasis is not on the device the contents of the publication was created in. [62] This Court is also not willing, based on the circumstantial evidence, to make an irresistible inference or conclusion that the digital copy of the poison pen letter came from the particular device used by the deceased, and that device belonged to the respondent. If the Court is to do so, this would unfairly and unjustly impose hardship on the respondent to defend its case. [63] Lastly, based on the above analysis, this Court finds the appellant’s appeal did not satisfy this Court that the High Court judge was so plainly wrong in his overall reasoning in coming to the final decision which could warrant interference from this Court. [64] As a result of the above finding, it is not necessary for this Court to discuss the other grounds of appeal in relation to the complaint that the appellant was entitled to damages against the respondent. Conclusion [65] For the reasons stated above, this Court finds the appellant’s appeal to be without merit, and the appeal is hereby dismissed with costs of RM30,000.00 to the respondent (subject to allocator fees). Page 25 of 26 Date: 23.2.2026 -Sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Page 26 of 26 Counsel(s) for the appellant: Edward Kuruvilla Messrs. Kuruvilla, Yeoh & Benjamin Counsel(s) for the respondent: HR Dipendra (Tong Joe Jye with him) Messrs. Ramesh Dipendra Jeremiah Law