Tan Men John v 1. Tetuan Ravi G (22NCVC-185-11/2015)

TETUAN RAVI G (Disaman sebagai sebuah firma)

LUI KIA SU (NO. K/P: 641015-01-6073 / 745 7114) DEFENDAN-DEFENDAN JUDGMENT CHOO KAH SING Judicial Commissioner High Court, Johor Bahru

29.12.2017 Page 2 of 13 Introduction [1] This is a libel defamation suit in relation to three letters issued by the 1st defendant, a firm of solicitors, on behalf of its client the 2nd defendant, to the plaintiff’s previous solicitors. [2] The plaintiff complained that the contents of the letters dated 6.7.2015, 11.8.2015 and 17.9.2015 (hereinafter referred to as the ‘impugned letters’) contained defamatory statements. Hence, the plaintiff filed this suit to seek for, inter alia, general damages, exemplary and punitive damages of RM1,000,000.00. [3] The 2nd defendant filed a counter-claim against the plaintiff and claimed that he had suffered various forms of losses, including loss of reputation, as a result of the plaintiff taking out this suit against him. The defendants also claimed for the costs of this suit on a solicitor-client basis against the plaintiff’s solicitors personally for filing this suit, and further claimed for other losses suffered by the defendants. [4] On 10.10.2017, this Court dismissed the plaintiff’s claim and allowed the defendants’ counter claim in part. The reasons for the decision are set out as below. Background Facts Background facts leading to the impugned Letters [5] The impugned letters were issued in reference to a legal suit in another High Court case via suit No. 22NCVC-90-06/2015 (hereinafter Page 3 of 13 referred to as ‘suit 90-06/2015’) between the plaintiff and the 2nd defendant. [6] In the suit 90-06/2015, the plaintiff sued the 2nd defendant for breach of contract over a sale and purchase agreement entered into between the parties. The plaintiff agreed to purchase and the 2nd defendant agreed to sell an immovable property for a consideration sum of RM1,200,000.00. The plaintiff sought, inter alia, specific performance against the 2nd defendant. [7] The 2nd defendant in his statement of defence in suit 90-06/2015 averred that he had borrowed a sum of RM200,000.00 from a person by the name of Michael whom the 2nd defendant alleged was an illegal money lender, a.k.a ‘Ah Long’. The 2nd defendant further averred that the purported sale and purchase agreement was meant as a collateral to secure the money borrowed; it was not meant for the sale and purchase of the immovable property. The person ‘Michael’ was also known as the plaintiff in this suit, the 2nd defendant averred. [8] When the 2nd defendant received the writ and statement of claim for suit 90-06/2015, he engaged the 1st defendant firm to send a reply to the plaintiff’s then solicitors, Messrs. Tan Vincent & Azmi, on 6.7.2015. Thereafter, several letters were exchanged between the 1st defendant firm and the plaintiff’s then solicitors. The plaintiff averred defamatory statements were made against him in those letters issued by the 1st defendant under the instruction of the 2nd defendant. Page 4 of 13 The plaintiff‟s case [9] The plaintiff complained the impugned letters contained words which in their ordinary meaning carried statements which were defamatory of him. Those statements in the impugned letters were as follows: Letter dated 6.7.2015 (the first letter) “Our client indicates that your client had lent him some monies for the sum of RM200,000.00, collected more than RM150,000.00 in interest and used the Sale and Purchase dated 10.5.2013 as collateral to mask the loan transaction.” “The value of the Property is in excess of RM2,000,000.00 and your client is unjustly seeking enrichment for a sum in excess of RM1,000,000.00 by purporting this sale in his favour with your legal representation.” “We are of the view that there is criminality in these transactions i.e. cheating and hence the requirement of the address so that the police can further investigate.” Page 5 of 13 Letter dated 11.8.2015 (the second letter) “We write to you with grave concern on the conduct of your client subsequent to the proceedings that is a foot. Your client have:

Posters pasted on electrical poles suggesting our client is a cheat (the entire street in his home);

Posters strewn in the kindergarten of his child aged 4 years; and

Bottles and empty case with stickers suggesting as in (a) – (b) above into our client‟s house and neighbours‟ houses and these had been captured on CCTV. We had suggested that this whole transaction was with moneylenders and you had dismissed it. We hereby seek your co-operation to advise and give an indemnity that will not happen again. Our client concerns as they are worried for their safety. We seek your kind co-operation in confirming your client‟s understanding not to pursue the same further and we write to confirm that we shall seek this damages in the suit proper.” Page 6 of 13 Letter dated 17.9.2015 (the third letter) “We refer to the above captioned and to the various letters which we have sent in respect of the various letters on the conduct of your client against our client. Yesterday, your client and/or his agents had put up posters in the peripheral adjoining our client‟s residential premise with the following notations that our client is: „A Wanted Person‟ „A Loan Defaulter‟ „A Cheat – Never Pay Debt‟ The name of our client and his identification number was included in 30 such posters tagged on all the tress right up to Public Bank Berhad located at Sutera Mall, Johor Bahru. We had sent you letters previously on your client‟s conduct and you had plainly denounced such acts of your client. We had provided you documentary proof on the same but you had dismissed it as mere allegations.” Page 7 of 13 “We are of the view that this is under handed and sub-judice (in the notion that your client wants to take the law into their own hands. We give you a final three (3) working days to resolve this failing which we shall file an application to restrain your client pending the disposal of the trial.” [10] The plaintiff pleaded that the above contents in the impugned letters in their ordinary meaning were understood and meant as follows:  The plaintiff was an illegal money lender;  The plaintiff had received RM150,000.00 as chargeable interest for a loan of RM200,000.00 borrowed by the 2nd defendant;  The plaintiff was the person who placed the posters stating the 2nd defendant was a cheater in the bottles and empty cases and placed them in the 2nd defendant’s house and 2nd defendant’s neighbours’ houses;  The plaintiff had carried out an illegal money lending business and threatened the safety of the 2nd defendant’s family;  The plaintiff will continue to carry out all those activities stated above against the 2nd defendant  All the facts stated in the third letter in their plain and ordinary meaning [11] The plaintiff further pleaded that the contents in the impugned letters have been understood in the following meanings: Page 8 of 13  Menyebabkan plaintif dipandang sebagai seorang peminjam wang haram yang sanggup melakukan perbuatan-perbuatan yang dirujuk dalam surat-surat fitnah tersebut terhadap defendan kedua;  Menyebabkan plaintif dipandang sebagai seorang peminjam wang haram yang sanggup melakukan perbuatan-perbuatan yang mengamcamkan defendan kedua dan keluarganya;  Menimbulkan keraguan yang serius terhadap reputasi plaintif yang seterusnya menyebabkan atau mungkin akan menyebabkan kecederaan yang tidak dapat dipulihkan dan merosakkan reputasi plaintif sebagai seseorang individu dan seorang peniaga;  Menyebabkan plaintif dipandang sebagai seorang yang tidak pedulikan undang-undang dan mengecamkan defendan kedua dan keluarga defendan kedua;  Berkecenderungan untuk merendahkan-rendahkan plaintif dikalangan ahli masyarakat;  Secara seriusnya telah menjejaskan kredibiliti dan reputasi plaintif;  Menyebabkan plaintif akan dijauhi dan dielakkan. (The above is extracted from paragraph 16 of the Statement of Claim) [12] The above are the pith of the plaintiff’s complaints. The Finding of the Plaintiff’s Case Defamatory Statement [13] This Court is satisfied that the contents of the impugned letters, read together in totality and in their ordinary and plain meanings, Page 9 of 13 would convey the meaning that the plaintiff was an illegal money lender, and that he and/or his agents had committed all those unwarranted threats stated in the second and third letters against the 2nd defendant and his family. The ordinary and plain meanings of the contents in the impugned letters need no further explanation or elaboration, as they could be understood in their plain form. [14] This Court is also satisfied that the contents of the impugned letters read together would in their natural meaning carry a tendency to excite against the plaintiff’s reputation and adverse opinion of others. Illegal money lenders or ‘Ah Long’ are frequently condemned by the public and the law. Those statements referring to the plaintiff as an illegal money lender would lower the plaintiff in the estimation of right thinking members of the society generally. Publication and Referring to the Plaintiff [15] The impugned letters were sent to the plaintiff’s then solicitors. The letters were received by the employees of the plaintiff’s then solicitors. The third letter was carbon copied to the Assistant Registrar of the High Court, Johor Bahru as well as to the secretary of the then presiding judge. From the plaintiff’s evidence, the impugned letters were indeed published when they were sent to the plaintiff’s solicitors and to the court. The clerk (PW2) from the plaintiff’s solicitors testified that she had seen and read the letter. [16] With regard to the impugned statements, the plain reading of the contents of the impugned statements clearly referred to the plaintiff. Hence, this Court was satisfied that the defamatory statements were Page 10 of 13 published and they referred to the plaintiff. The plaintiff had satisfied this Court that the ingredients of his libel suit have been established. The Defence [17] The defendants pleaded absolute privilege and qualified privilege and that the impugned statements were made in the course of proceedings before the court of law. The defendants also pleaded there was no malice on the part of the defendants in issuing the said impugned letters. [18] The 1st defendant, as a firm of solicitors, was instructed by the 2nd defendant to issue the said impugned letters. The instruction and authority were not challenged by the plaintiff. Based on the defendants’ story, the 1st defendant was protected under the defence of qualified privilege based on solicitor-client relationship. Further, the 1st defendant was on record as the firm of solicitors having conduct of the suit 90- 06/2015. [19] The impugned statements were made in the course of proceedings before the court of law. The impugned statements were the crux of the 2nd defendant’s defence in suit 90-06/2015. The 2nd defendant in suit 90- 06/2015 averred that the plaintiff was an illegal money lender, and that the sale and purchase agreement entered between the plaintiff and the 2nd defendant in the said suit was void. When certain incidents happened at the 2nd defendant’s premises and at his child’s kindergarten, it would have been a natural course of action for the 2nd defendant to instruct his solicitors to write to the plaintiff’s solicitors to stop the plaintiff and/or his agents from repeating such incidents. Page 11 of 13 [20] The defendants led evidence that the plaintiff was cited for contempt of court for perjury in suit 90-06/2015 when he denied having any relationship with the money lending business. The plaintiff was given a warning by the trial judge in suit 90-06/2015. The plaintiff did not challenge or appeal against the trial judge’s finding of fact that he was lying in court. In other words, he was found to have been involved in the money lending business. [21] It was also revealed in evidence in the defendants’ case that 2nd defendant’s brother DW3 witnessed one of the incidents and was able to identify that the plaintiff was involved in the act. DW3’s evidence was not discredited. [22] Based on the above finding of facts, all the impugned statements were made in the course of or in furtherance of a proceeding in the court of law. Hence, this Court was satisfied that the defence of absolute privilege ought to be accorded to the defendants. Malice [23] The burden to prove the impugned letters were issued and published with malice intent was on the plaintiff. The defendants’ counsel submitted that the impugned letters were necessary to protect the interest and safety of the 2nd defendant and his family members. They were not issued with any malice intent. The plaintiff led no convincing evidence to suggest that the defendants were actuated by malice when the impugned letters were made and published. Page 12 of 13 Conclusion [24] Based on the above findings, this Court was satisfied that the plaintiff had made up a case of libel of defamation suit and the Court was also satisfied that the defendants had succeeded in raising the defences of ‘absolute privilege’ and ‘qualified privilege’. The Court also found no malice was proven when the impugned letters were issued by the defendants. Hence, the plaintiff’s claim was dismissed with costs of RM20,000.00 to the defendants. With regard to the 2nd defendant’s counter-claim, this Court allowed a permanent injunction against the plaintiff from carrying out any form of harassment against the 2nd defendant and also allowed a restraining order against the plaintiff from carrying out any conduct which is intended to cause harm and fear to the 2nd defendant, and costs of RM10,000.00 to the 2nd defendant to be paid by the plaintiff for the counter-claim. [25] The counter-claim against the plaintiff’s solicitors personally was not allowed with no order as to costs. [26] All costs to be paid within 14 days from the date of this order (10.10.2017). -Signed- ………………………………………. (CHOO KAH SING) Judicial Commissioner High Court Johor Bahru Page 13 of 13 Counsel for the plaintiff: David Leow Messrs. Tng, Liew, David Leow & Co. Counsel for the defendants :