Syarikat Dark Wave Pictures Sdn Bhd v Fadzilah Binti Mohd (B53F-6-03/2017)

Sessions Court of Malaysia2 Oct 2018

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1 IN THE SESSIONS COURT IN SHAH ALAM IN THE STAE OF SELANGOR DARUL EHSAN GUAMAN NO. BA – B53F – 6 – 03 / 2017 BETWEEN SYARIKAT DARK WAVE PICTURES SDN BHD …1st PLAINTIFF RAFENA EZANEE BINTI RAMLI …2nd PLAINTIFF AND FADZILAH BINTI MOHD …DEFENDANT GROUNDS OF JUDGMENT Introduction [1] First plaintiff is an enterprise in Malaysia established on 2.2.2008 with the main office in Shah Alam, Selangor. It operates in the Motion Picture and Sound Recording Industries industry. [2] Second plaintiff, also known as Dato’ Rafena, is the founder of the first plaintiff and she had once been as a model, flight stewardess and actress before deciding to work in a publication of drama and film through her own production house company in the name of first plaintiff. [3] Defendant is an actress and a host and popularly known as “Didie Alias” or “Mummy” in the local entertainment industry. [4] Both plaintiffs and defendant had on 7.10.2016 entered into an agreement to produce a travelog titled “Street Food Asian” for a televised period of 13 episodes. The said agreement had stated that inter alia, the defendant shall in her capacity as an executive producer oversee the process and/or making of the said travelog to ensure its completion. 2 [5] The first plaintiff and the second plaintiff (“plaintiffs”) initiated this instant suit to claim for monetary damages, inter alia, against the defendant for the alleged unsatisfactory work and defamatory statement allegedly published by the defendant directed at the plaintiffs. [6] The defendant had published a post on her instagram featuring a picture of the defendant and one Mohd Zulhilmi bin Janudin who responded to the sobriquet “Chucky” wherein the latter was seen in his supine position. [7] The plaintiffs had alleged that the words contained in the said instagram were defamatory and that in consequence thereof the plaintiffs had since suffered from damages. [8] During the trial, plaintiffs called seven witnesses to attest in support of their account, namely Amirah Zawatil Amaly Syafaat (SP1), Hartina Ayu binti Harun (SP2), Muhamad Izzul bin Ibrahim (SP3), Mohd Zulhilmi bin Janudin (SP4), Dato’ Rafena Ezanee binti Ramli (SP5) and Nurul Aainaa binti Khairuldin (SP6). [9] Meanwhile defendant had called three witnesses to testify in court namely Muhammad Fajrul Qayyum bin Mohd Fauzi (SD1), Muhammad Dhanial bin Mohd Ridzun (SD2) and defendant herself Fadzilah binti Mohd (SD3). [10] Having heard from all witnesses and considered the submissions from both parties, the court decided on balance of probabilities that the plaintiffs had failed to prove their case against the defendant. Therefore, the claim by the plaintiffs against the defendant were dismissed with costs. [11] The following are my grounds in dismissing the plaintiffs’ claim against the defendant with costs. Facts Of The Case 3 [12] The plaintiffs’ claims against the defendant are twofold: alleged contractual breach and defamatory statement allegedly published by the defendant directed at the plaintiffs. [13] Clause 3 of the said agreement states that the defendant shall be paid a sum of RM7,000 upon completion of the said travelog. It further states that the plaintiff shall not be liable to pay any additional or further sum to the defendant in the event that the shooting of the said travelog goes beyond the time period as stipulated in the production schedule. [14] It is also expressly stipulated that the defendant shall do everything necessary to complete the said travelog as the plaintiff might desire within the terms of the said agreement. [15] The plaintiffs had subsequently completed the shooting of the travelog and it is not disputed that a payment of RM7,000 was made by the plaintiffs to the defendant. [16] On the allegedly defamatory statement published by the defendant, the plaintiffs are relying on the statement published on the instagram of the defendant. DECISION OF THE COURT ALLEGED CONTRACTUAL BREACH [17] The law on contract clearly sets out a legal guideline on which both parties to a contract must perform their own contractual obligations or offer to perform their respective promises, unless such performance has been dispensed with by any law. Section 38(1) of Contract Act states the following; The parties to a contract must either perform, or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law. 4 [18] It is trite law that for the court to determine whether or not there exists non-performance of a contract resulting in a party having to pay for damages, all surrounding circumstances must be observed. [19] In this instant suit, the defendant submitted that she had executed all her obligations in her capacity as an executive producer under the said agreement. Reference can be made to the evidence of the defendant herself (SD3) where she had testified that in ensuring the smooth flow of the shooting, she had made sure that all those involved in the shooting be present and effective in the completion of the portfolio so individually tasked. Her stand is that the shooting had in fact been completed and effectively televised with no complaints directly communicated to her. [20] I made observation that plaintiffs, despite having unsatisfied with the duty of the defendant, made payment of RM7,000.00 to the defendant for her services rendered under the agreement. [21] It is the defendant’s submissions that the plaintiffs’ contention predicated upon a breach of the said agreement by virtue of the defendant’s alleged failure in carrying out the shooting to the plaintiffs’ satisfaction should not stand. [22] Defendant further submitted that insofar as the plaintiffs’ conduct is concerned, the plaintiffs had at no point in the course of the shooting and thereafter informed the defendant of any mistakes, wrongdoings, mismanagement, existing glitches, dissatisfactions, or misconduct that could have caused the travelog to be a failure. [23] In reliance thereof, the defendant had testified that she had continue to honour the said agreement by carrying out successfully the contractual task until its completion. The travelog was finally produced that the defendant had received what was due to her pursuant to the said agreement, to wit, the payment of RM7,000. [24] The defendant had in evidence testified that the payment of RM7,000 had been made approximately two weeks after she had surrendered the final product of the said travelog in a form of a hard disk 5 to the first plaintiff. In the course of two weeks until the payment of RM7,000 was eventually made to the defendant, the defendant informed the court that the plaintiffs had not raised any issues regarding the quality of the travelog which could have given rise to any issue of purported breach of the said agreement. [25] During the cross examination of the defendant by the learned counsel for the plaintiffs, the plaintiffs sought to establish that the defendant had indeed been aware of the existing problem, which is in the course of task completion through all manner of WhatsApp group messages and emails to which the defendant purportedly had all along a means of access. [26] I take note that the whole evidence elicited by the plaintiffs from the defendant during cross examination are premised on the defendant’s knowledge on the messages and emails containing important issues and problems which necessitated immediate attention. However, none of these emails or messages were produced in court for judicial evaluation. The learned counsel for the defendant argued that on that premise alone, a presumption of adverse inference by virtue of Section 114(g) of Evidence Act 1950 must be invoked to the disadvantage of the plaintiffs. [27] The evidence of the plaintiffs through SP6 is worth a closer sight with respect to the alleged communication of the problems expressed by Radio Television Malaysia (“RTM”) in all letters to the first plaintiff purportedly sent through emails. [28] Again, the plaintiffs had sought to establish at trial that the defendant had indeed been informed of the existing technical glitches but I find that at no point in the course of the trial nor was there in the bundle of documents filed into court presented any shred of evidence to this effect for my judicial determination. In this regard, the plaintiffs witness SP6 herself had agreed during cross examination that none of the email chain was ever produced in court. [29] I agree with the learned counsel for the defendant that the failure to provide to the court documentary evidence in support of important issues 6 directed against the defendant when claiming that there are email chain informing the defendant about existing technical glitches, the presumption of adverse inference by virtue of Section 114(g) of Evidence Act 1950 must be invoked to the disadvantage of the plaintiff. [30] During testimony of second plaintiff (SP5) who is the key witness of the plaintiffs, she testified that there was a penalty imposed upon the first plaintiff as a result in the amount less than RM20,000 and that the first plaintiff purportedly had to appoint out of desperation one Khairul Nizam to complete the said travelog which the plaintiffs had alleged to be peppered with technical mishaps. [31] However, SP5 agreed that none of the documents in relation to the imposition of the said penalty or the appointment of Khairul Nizam was ever produced in court to ascertain the attempted establishment of such assertions. I must say again that the failure on the part of the plaintiffs to produce documentary evidence to support allegation that the plaintiffs had suffered damages in a form of penalty as a result of the defendant’s alleged breach of the said agreement will invite a presumption of adverse inference by virtue of Section 114(g) of Evidence Act 1950 to be invoked against the plaintiffs. [32] While the plaintiffs’ claim is based on their contractual claim against the defendant on unsatisfactory performance of the said agreement, the defendant submitted that on this basis alone, the said claims should fail in toto. The plaintiff had alleged that the damages were sought in view of the defendant’s breach of the said agreement in that the defendant had failed to ensure that the quality of the travelog had met the standard expected of the first plaintiff by a television station RTM. [33] The defendant submitted that by virtue of the doctrine of privity of contract, the concern of RTM in relation to the outcome of the travelog is of no concern to the defendant. In these premises, it is a trite law that the principle of jus quaesitumtertio (a stranger cannot enforce a contract) must apply. In this regard, reference must be made to various letters (not disputed) where these letters were addressed to the first plaintiff by RTM 7 regarding an issue of technical non-compliance with the requirements set by RTM. [34] Perusing the agreement between the plaintiffs and defendant, I find no clause expressed in the agreement on the need to comply with RTM requirements for the production of the travelog. During cross examination of second plaintiff, she had in evidence agreed that the arrangement between the first plaintiff and RTM had nothing to do with the duty of the defendant. In these premises, it is obvious that the legal backdrop against which RTM could possibly lean upon could only exist between the first plaintiff and RTM, and not the defendant. [35] I also find none in the agreement stipulating the requirement to comply with the technical setting of the said travelog, hence not part of the said agreement. That being the position, I conclude that there is no legal nexus between the defendant and RTM that should clothe a cause of action by the plaintiffs. While there may have been an agreement, if at all, between the plaintiffs and RTM, the contractual terms thereof cannot be enforced against the defendant. [36] Based on the agreement, the defendant is only bound by the said agreement which has not specifically inked on the defendant’s duties and obligation to carry out the travelog to the satisfaction of RTM insofar as the completion of the said travelog is concerned. [37] In the circumstances, I am in agreement with the defendant that insofar as the said agreement is concerned, the defendant had executed the said agreement with success. The said agreement had been concluded and the defendant had been paid the amount due to her pursuant to the said agreement. [38] On the contrary, learned counsel for the plaintiffs argued that by way of evidence of plaintiffs witnesses, namely SP2, SP3 and SP5 during trial, the defendant had neglected her duties and responsibilities as an executive producer of the travelog as per the said agreement by ignoring the requests made by SP2, SP3, SP5, and SP6 to attend to or amend the 8 necessary input in the said travelog so as the quality would be to the satisfaction of RTM. [39] It is still fresh in my mind the evidence of SP2, SP3, SP5, and SP6 at trial that in the making of the said travelog, there appeared to be problems with respect to the technical compliance with which the defendant had been alleged to have failed to rectify and of which the defendant is said to have been made aware through various series of verbal communications. This, the defendant in her evidence wholly denies any form of communications to that effect. [40] It was also the evidence of second plaintiff at trial that despite repeated communication to the defendant on the subject of technical non-compliance, the defendant had failed to act on it resulting in the plaintiffs having to resort to the professional engagement of one Khairul Nizam for the completion of the travelog. On the contrary, the defendant in her evidence also denied in totality the said communication so allegedly made. CONFLICTING ORAL EVIDENCE BETWEEN THE PLAINTIFFS AND THE DEFENDANT. [41] Throughout the trial before me, both witnesses from the plaintiffs and the defendant had presented a conflicting version on the material issues at hand. [42] It is a trite law that in the assessment of conflicting oral evidence between the litigants, I ought to carefully consider that oral evidence must be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity. In the case of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 1 LNS 119 the Federal Court had this to say: Nevertheless, the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral 9 evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity. [43] Also in the case of Privy Council Grace Shipping Inc. & Anor v C.F. Sharp & Co (Malaya) Pte Ltd [1986] 1 LNS 60 it was held as follows: It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth. [44] In the present suit, the denial of the defendant with regard to the existence of communication relayed to her shall necessitate a judicial inquiry into a determination based on the whole of the other evidence and the circumstances of the case. [45] Similarly, the evidence of SP2, SP3, SP5 and SP6 must of necessity be critically tested against the existing contemporaneous documents adduced in court. However, there is nothing at all adduced in court which confirms the assertion made by SP2, SP3, SP5, and SP6 through their oral evidence at trial. The absence thereof shall invite the court to put the credibility of SP2, SP3, SP5, and SP6 into question as to the truthfulness of their testimony. [46] Further, I need not remind that section 101(2) of the Evidence Act 1950 in the context of this suit shall require on the balance of probabilities 10 that in proof of the existence of such communication, if at all, the plaintiffs are shouldered with a legal task in proving the existence thereof. [47] Reference must be made to the case of Munusamy Vengasalam v PP [1987] CLJ Rep 221 where the Supreme Court held that adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case. [48] The defendant submitted that it is abundantly clear that given the nature of the said agreement which is purely centred about the aim of financial target which the plaintiffs stand to gain from RTM, a party not privy to the said agreement, it would therefore only be sensible to infer that the paramountcy of any documentary record within the structure of the first plaintiff shall be a backbone upon which the effective administration and management of the first plaintiff would stand. [49] In my view, it surely would have been a commercial practice of the first plaintiff to retain such documentary record reflecting the said communication which is said to have existed and relayed to the defendant. If the documentary record were produced in court, I would have had the benefit of evaluating such record and for the defendant to have had the fair advantage to respond to it had both the defendant and I not been deprived of such benefit and advantage. [50] In this regard, I must reiterate that a documentary record reflecting the said communication to that effect is indeed material for the purpose of judicial assessment by the court. The plaintiffs however had on the other hand placed heavy reliance on the defendant’s evidence (SD3) at trial that the defendant conceded to the mere existence of all manner of communications throughout the making of the said travelogue. More importantly, the plaintiffs had failed to establish how the existence such communications per se would inevitably relate to the communications strictly in respect of the problem on technical non-compliance allegedly occasioned by the defendant. 11 [51] The core issue regarding the alleged breach of the said agreement is based on the allegation made by the plaintiffs of the problem arising from the technical non-compliance in the making of the said travelogue purportedly occasioned by the defendant. My scrutiny of the defendant’s evidence during cross-examination merely invites an inference of the existing emails and a WhatsApp group through which all manner of communications were relayed. [52] I must remind that a communication per se and a communication with detailed specifics on any existing problems must of necessity be distinguished. I can recall that the defendant in her evidence had only sought to inform the court of the mere existence of such emails and a WhatsApp group and none of the issue regarding the problem of technical non-compliance had, to the defendant’s knowledge, arisen and since effectively communicated to the defendant by any of SP2, SP3, SP5 and SP6. [53] In the circumstances, in view of the conflicting evidence and that given the failure of the plaintiffs to adduce before me any documentary record reflecting the said communication to that effect while at all material times before, during, and upon the conclusion of the trial being in possession of such record, an adverse inference must be duly drawn against the plaintiffs. The consequence following therefrom, I treat the evidence of SP2, SP3, SP5, and SP6 at trial with amount of suspicion and doubt and therefore I can only give little weight to their testimonies. WHETHER THE AGREEMENT COMPLETED? [54] The defendant submitted that the said agreement has been completed with the completion of the travelog and the defendant had been paid a sum of RM7,000 as per the said agreement. The defendant testified that she had received the said amount two weeks after the hand-in of the final product of the said Travelogue in a form of a hard disk to the first plaintiff. [55] Section 17 of the said agreement stipulates that in the event of contractual breach, there shall be an avenue of termination of the said 12 agreement. However, I find that there is no termination of the said agreement by the plaintiffs. [56] Further, section 3 of the said agreement stipulates that on payment, the second plaintiff shall not be liable to pay any additional sum to the defendant in the event that the time of the shooting of the said travelogue goes beyond the dateline fixed by the first plaintiff. It is not in dispute that the defendant had not incurred any additional sum as a result of a delayed completion of the said travelogue. I also find no evidence during trial that the plaintiffs have instructed the defendant to redo the said travelogue nor had the defendant been proven to have received such instruction. [57] Therefore, it can be drawn from the above that insofar as the defendant is concerned, the said agreement had been duly completed. It cannot be otherwise. DEFAMATORY STATEMENT ALLEGEDLY PUBLISHED BY THE DEFENDANT DIRECTED AT THE PLAINTIFFS [58] It is a trite law that in an action for defamation, the onus lies on the plaintiffs to establish, on a balance of probabilities, that the impugned statement published referred to the plaintiffs and that it had defamatory imputations. There must also be publication of the alleged defamatory statement and its publication as soon as it is published to a third person. In Ayob Saud v TS Sambanthamurthi [1989] 1 CLJ 152 Mohamed Dzaiddin J (as he then was) held that; 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. [59] In determining whether the plaintiffs have discharged her burden of proof, the court must decide on the following questions:

Was the defendant’s statement published?; 13

(ii) Did the statement refer to the plaintiffs?; and

III

(iii) Was the statement capable of bearing a defamatory meaning? [60] It is not disputed that the defendant’s statement was published. However, defendant contended that the said statement was made not in reference to the plaintiffs and that the said statement was at all incapable of bearing a defamatory meaning. For accuracy, the key extracts of the alleged defamatory statement is reproduced below: Alhamdulillah chucky #makeupartis dh beransur pulih, tp masih lagi lemah.Harap pihak produksi @yang bertanggungjawab amik kesah kebajikan pekerja, bkn kata nk datang melawat, tanya kabar pun haram, bkn nak sebuk ke apa mumy simpati ngan budak nie, klu lambat bertindak aritu taktahulah jadi apa kt die, family die dh la jauh, mumy nie pun manusia masih ada sifat perikemanusiaan. Cuba kena kt keluarga kita ape korang rase. #appendixpecahdalamperut #kejadianberlakumasadalamkerja [61] Subsequent to the publication of the alleged defamatory statement on instragram by the defendant, the first person to reply to the Instagram post published by the defendant was none other than the second plaintiff herself and she remarked the following: SALAM SEMUA....@ladydidiemsia Production yang dimaksudkan adalah production I, #DarkWavePictures [62] It is crystal clear that the second plaintiff being the very first to have commented on the said Instagram post of the defendant had on her own volition revealed her identity as well as that of the first plaintiff. DID THE STATEMENT REFER TO THE PLAINTIFFS? 14 [63] It is a trite law that the burden of proof with respect to the reference to the plaintiffs rests on the plaintiffs themselves. In overcoming this question of identity, Lord Guest in Morgan v. Odhams Press Ltd & Anor [1971] 2 All ER 1156 had this to say, ... But here the question is not whether the words are defamatory. It is conceded that they are, if they refer to the plaintiff. The question is one purely of identity. 'Are the words capable of being understood to refer to the plaintiff?' In my view, a somewhat more exacting test should be predicated where the question is one of identity. It is not sufficient for the reader to say 'I wonder if the article refers to Johnny Morgan' nor is pure speculation sufficient. Nor is it sufficient that a reasonable person believes that the words refer to the plaintiff. The test is an objective one. The ordinary reader must be fair-minded and not avid for scandal. He must not be unduly suspicious. The ordinary reader must have rational grounds for his belief that the words refer to the plaintiff. [64] Applying the abovementioned test, the defendant argued that the plaintiffs had failed to identify themselves. There was no evidence adduced before me that any reasonable persons on reading the said impugned statement, on rational ground, would have identified or understood the said impugned statement to have been made in specific reference to the plaintiffs. [65] I also find that the impugned statement relating to SP4 was made generally and not in specific reference to any individuals or entities. Given the nature of SP4’s work where SP4 was only employed by SP5 on the basis of contract for service where apart from engagement with the first plaintiff, SP4 was at the same time rendering his services to other productions on a freelance basis at a fee. [66] The incident took place while SP4 was simultaneously engaged in the services of other productions and nowhere in the said impugned statement did the defendant mention any productions in particular, let alone the producers of such productions. 15 [67] I find that the said impugned statement was not at all suggestive of the plaintiffs. In fact, the second plaintiff had taken it upon herself to reveal the identity of both plaintiffs on the comment thread following the said impugned statement thereby resulting in a barrage of comments in response to the second plaintiff’s revelation of the plaintiffs’ identities by way of the said comment so made; and not to the impugned statement initially made by the defendant. [68] Based on documentary evidence, it cannot be denied that the second plaintiff was the first to have authored the comment in response to the said impugned statement as soon as the said impugned statement was published. In subsequence thereto, a litany of scathing remarks by way of written comments in response to the second defendant’s exposure of the identities of both plaintiffs had since ensued. [69] I also find that under no circumstances did the flooding comments ensue as a direct result of the publication of the said impugned statement made by the defendant. The subsequent comments made by others were on the contrary a direct response to the response of the second plaintiff; and not of the defendant. [70] From the reading of the said impugned statement, it narrated that the defendant was grateful that SP4 had shown positive signs of recovery and the defendant was concerned that any productions to which SP4 who was a freelance make-up artist had been rendering service, had lacked in their attention to the health care of SP4 and the defendant had indulged herself in a reflective mode in her attempt to empathise with SP4’s medical predicament. [71] It is clear that the said impugned statement had no mention of the plaintiffs in the most remote of meanings or tenors. Thus, to the ordinary person, who did not know the plaintiffs could not possibly have reached a conclusion that the defendant had all times purported the said impugned statement to have been intended or made in reference to the plaintiffs. [72] More so during the trial that at any time did the plaintiffs produce any evidence, documentary or otherwise, that the said impugned 16 statement was made in reference to the plaintiffs. The plaintiffs had also failed to establish that in spite of the second defendant’s revelation of the plaintiffs’ identities, being the first to have authored the comment in response to the said impugned statement, the following comments which came flooding in the defendant’s comment section were in direct response to the said impugned statement. [73] In any event, the subsequent comments were at all times made in direct response to the second plaintiff’s revelation of the identity of whom the defendant never intended to mention in specific, the identity of plaintiffs. WAS THE STATEMENT CAPABLE OF BEARING A DEFAMATORY MEANING? [74] In determining whether the said impugned statement is capable of bearing a defamatory meaning, the case of Keluarga Communication v Normala Samsuddin [2006] 2 CLJ 46 is of absolute relevance where the court stated: At the outset we would state that the test to be applied when considering whether a statement is defamatory of a plaintiff is well settled in that it is an objective one in which it must be given a meaning a reasonable man would understand it and for that purpose, that is, in considering whether the words complained of contained any defamatory imputation, it is necessary to consider the whole article. Gatley on Libel & Slander, 10th edn on this point at pp. 108 and 110 inter alia states as follows: It is necessary to take into consideration, not only the actual words used, but the context of the words. It follows from the fact that the context and circumstances of the publication must be taken into account, that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting. 17 [75] The approach in the construction of the words complained of is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense. It is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw. Looking at the said impugned statement as a whole, I find that the content of the entire statement merely focused on the defendant’s call for a more concerned and sensitive attitude towards anyone involved in the entertainment industry generally and with no specific reference to the plaintiffs. [76] Given the importance of the contextual understanding of the whole impugned statement, it is imperative that one be fully conversant with the context of the defendant’s impugned statement. The well-being of SP4 was beset by, in the opinion of the defendant, the lack of medical attention of whom SP4 was engaged to on a freelance basis. The word “pihak produksi @ yang bertanggungjawab” in my opinion was one of generic expression which could lead a reasonable person to draw an inference of various linguistic permutations within the context of entertainment industry. [77] Those words combined and understood wholly in the context of the defendant’s impugned statement would only amount to a mere call for a more responsible treatment from anyone involved in the entertainment industry. In the case of Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd Ors [1995] 1 LNS 304 the court had an occasion to observe Lord Selborne LC’s judgment in which it was stated: The test according to the authorities is whether, under the circumstances in which the writing was published, a reasonable man to whom the publication was made would be likely to understand it in a libellous sense. [78] The right approach is for the court to construe the said impugned statement in the context of the entire statement for the purposes of determining whether in their ordinary and original meaning the words complained of are capable and are in fact defamatory to the Plaintiffs in the particular circumstances of this case. Therefore, I find that by 18 construing the said impugned statement as a whole, the said impugned statement published by the Defendant was neither defamatory nor slanderous nor libellous to the Plaintiffs. [79] During cross examination of the defendant, she testified that the said impugned statement was nothing short of an attempt to implore all key players in the entertainment industry to exercise care for the well-being of those involved in the entertainment industry. In the circumstances, it is my finding that the said impugned statement when read in totality cannot be capable of being defamatory to the plaintiffs. DEFENCE OF JUSTIFICATION [80] The defendant further submitted that in any event the defendant is entitled to a defence of justification. Section 8 of the Defamation Act 1957 state: In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. [81] In order to establish a plea of justification, the defendant must prove the defamatory imputation is true, justify the precise imputation complained of and prove the truth of all material statements in the libel (see Workers' Party v. Tay Boon Too &Anor [1975] 1 LNS 193). [82] It is a trite law that the burden is on the defendant in proving justification. Further, the defendant has to prove the substance of the allegation and on a balance of probabilities that the allegation is more likely than not to be true. The substance of the defendant’s assertion is predicated upon the truth of the matter in that SP4 was indeed bedevilled by the plaintiffs’ lack of care during the shooting of a drama titled “Syurgaku Tak Sempurna”. 19 [83] The defendant submitted that SP4 was terribly indisposed during the said shooting resulting in his admission into a hospital on 14.1.2016. During SP4’s admission, none of the plaintiffs had taken an initiative to care for the well-being of SP4. The defendant together with SD1 and SD2 had taken it upon themselves to provide assistance for SP4 on his medical needs and upon official discharge, SP4 continued to be under the care of the defendant at the defendant’s home in Kuala Lumpur for a certain period of time. [84] The defendant submitted that the existence of WhatsApp messages alone are a solid proof of the defendant’s assertion that SP4 was cared for by no one except SD1, SD2, and SD3 and that SP5 being an agent of the first plaintiff had never been involved in the care of SP4 throughout his stint in the hospital. It is also important to take into account the evidence of SP4 during cross examination where he had testified that throughout his admission in the hospital, the defendant alongside SD1 and SD2 had done him a favour by taking care of him until he was fit to move about unaided. [85] In these premises, I agree with the defendant that on the strength of admission made by SP4, it is abundantly clear that the said impugned statement contained nothing but only the truth. CONCLUSION [86] In the upshot, on the issue of whether the defendant had breached the said agreement, I find that the defendant is not in breach of the said agreement and damages claimed therefrom should therefore fail. [87] On the issue of the alleged defamatory statement, I find that the said impugned statement published by the defendant is not defamatory and the defendant is entitled to a defence of justification. [88] On the issue of the arising remarks made purportedly damaging to the plaintiffs’ reputation, the arising remarks were not in response to the defendant’s instagram post wherein the said impugned statement was placed. Rather, the arising remarks were made as a result of the Commented [Office1]: 20 publication of the said reply post made by the second plaintiff herself, and not by the defendant. [89] The plaintiffs have failed to establish, based on the test of reasonableness, that any reasonable persons on reading the said impugned statement, on rational ground, would have identified or understood the said impugned statement to have been made in specific reference to the plaintiffs. [90] During the trial, the plaintiffs also failed to produce any witness in proof of the potential damage likely to be caused to the plaintiffs on the plain reading of the said impugned statement. [91] Based on the above reasons, the court made a decision to dismiss the plaintiffs’ claim against the defendant with costs. [92] Costs of the trial is fixed at the amount of RM10,000.00 payable to the defendant. Dated this 30th April, 2019 …………..sgd……………….. (DATO’ ISHAK BIN BAKRI) Judge Sessions Court Shah Alam Selangor 21 Azlan for the plaintiffs (Azlan & Co) Mohd Fadly Hashim (Zamri Idrus & Co)

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Syarikat Dark Wave Pictures Sdn Bhd v Fadzilah Binti Mohd (B53F-6-03/2017)

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Syarikat Dark Wave Pictures Sdn Bhd v Fadzilah Binti Mohd (B53F-6-03/2017)

How this case connects

Cited by

Authorities cited

Something wrong on this page?