Tan Sri Dato' Kam Woon Wah v 1. ) Hannah Kam Zhen Yi (WA-23NCvC-114-12/2021)

HANNAH KAM ZHEN YI (No. K/P: 911130-14-5118)

MESSRS. THOMAS PHILIP, ADVOCATES AND SOLICITORS (sued as a firm) … DEFENDAN-DEFENDAN GROUNDS OF DECISION (Encl. 25: Striking Out of the Plaintiff’s Claim against the 1st Defendant) Introduction [1] This is an application by the 1st Defendant pursuant to Order 18 rule 19 (1) (a), (b), (c) and/or (d) of the Rules of Court (“ROC”) 2012 and/or the inherent jurisdiction of this Court pursuant to Order 92 rule 4 of the ROC 2012 for an Order that: 09/05/2025 16:47:12 WA-23NCvC-114-12/2021 Kand. 263 a) the Plaintiff’s endorsement to the Writ dated 28.12.2021 and the Statement of Claim dated 28.12.2021 against the 1st Defendant be struck out; b) costs of this application and the action herein be paid by the Plaintiff to the 1st Defendant on an indemnity basis; and c) any and/or such other reliefs and/or orders deemed fit and/or suitable by this Honourable Court. [2] The Plaintiff’s claim herein against the 1st Defendant:

does not disclose any reasonable cause of action and/or does not contain sufficient particulars to constitute a cause of action;

(ii) is scandalous, frivolous or vexatious;

(iii) will prejudice, embarrass or delay a fair trial of the matter; and/or

(iv) is an abuse of the process of the Court. [3] This application was heard together with the Notice of Application by the 2nd Defendant to strike out the Plaintiff’s claims in Encl. 26 pursuant to Order 34 rule 2 (2) (t) & (u) ROC 2012. [4] The grounds in support of the application herein are set out in the Affidavit in Support affirmed by HANNAH KAM ZHEN YI filed on 24.3.2022 (Encl. 24) and is to be read together in support of the application herein. [5] The cause papers filed in relation to Encl. 25 are as follows: a) 1st Defendant’s Affidavit in Support (Encl. 24) and Reply Affidavit (Encl.46); b) Plaintiff’s Affidavit in Reply (Encl. 34); c) Notis Niat Menggunakan Afidavit (Encl. 47 and 70); d) Plaintiff’s Written Submissions, Submissions in Reply and Bundle of Authorities (Encl. 66, 67 and 164); and e) 1st Defendant’s Written Submissions and Bundle of Authorities (Encl. 71, 72 and 73). Brief facts [6] The Plaintiff, Tan Sri Dato' Kam Woon Wah, a respected lawyer, former Member of Parliament, and former Secretary-General of the Malaysian Chinese Association (MCA), who is no longer in active legal practice but remains a prominent businessman. [7] The 1st Defendant, Hannah Kam Zhen Yi is the Plaintiff’s granddaughter, who has been disowned by him. There are ongoing legal proceedings between the Plaintiff and the 1st Defendant. [8] The 2nd Defendant is a legal firm. The 2nd Defendant was 1st Defendant’s previous solicitors in a separate court proceeding vide Kuala Lumpur High Court Civil Suit No. WA-22NCvC-140-03/2018 (“Suit 140”). [9] The details in respect of Suit 140 are as follows:

Suit 140 represents a suit initiated by the Plaintiff against the 1st Defendant and Ong Yue Guan, filed on 21.3.2018.

Proceedings for Suit 140 concluded and decision was given on 26.5.2023 in favour of the Plaintiff.

The solicitors acting for the Plaintiff was Messrs. Y.C. Wong.

The subject matter of Suit 140 and this alleged defamation claim filed on 28.12.2021 are separate and distinct from each other.

However, the Plaintiff’s defamation claim arises from a sole letter issued by the 2nd Defendant dated 9.12.2021 (Encl. p. 56 - 62) in respect of Suit 140. Submissions of 1st Defendant Issue 1: No Reasonable Cause of Action Absolute Privilege [10] The 1st Defendant submits that even if the words complained of meant and/or capable of conveying the meaning as alleged in para. 5 of the Statement of Claim (Encl. 2), the words complained of were published on an occasion of absolute privilege. Qualified Privilege [11] The 1st Defendant submits that the said letter dated 9.12.2021 was published on an occasion of qualified privilege. Issue 2: Scandalous, frivolous and vexatious and will prejudice, embarrass or delay a fair trial [12] The term ‘frivolous or vexatious’ generally refer to a groundless action with no prospect of success, often raised to embarrass or annoy the other party to the action. (see Court of Appeal case of Solai Realty Sdn. Bhd. v. United Overseas Bank (M) Sdn. Bhd. [2013] 4 MLJ 545). The 1st Defendant submits that the Plaintiff’s claim is scandalous, frivolous and/or vexatious and will prejudice, embarrass or delay a fair trial of the matter based on the following reasons:

the Plaintiff’s claim is groundless and has no prospect of success based on the defence of absolute privilege and qualified privilege;

the Plaintiff’s claim is frivolous and should never have been instituted. Issue 3: Abuse of Process of Court and/or Tactical ploy and ulterior motive [13] The Plaintiff’s claim herein is an abuse of process of Court and a tactical ploy against the 1st Defendant and her previous solicitors the 2nd Defendant. [14] An illustration of abuse of process of Court includes an intention to embarrass the Defendants and/or where the process of the Court has not bona fide and has been abused. (see Court of Appeal case of Indah Desa Saujana Corp Sdn. Bhd. & Ors. v. James Foong Chen Yuen & Anor. [2008] 2 MLJ 11). Submissions of the Plaintiff [15] The Plaintiff submits that this is not a case where the Statement of Case (Encl. 2) is plainly and obviously unsustainable. In Bandar Builder Sdn. Bhd. v. United Malayan Banking Corporation Bhd. [1993] 3 MLJ 36 at p. 43 the Supreme Court decided as follows: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable. It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence.” [16] The High Court in the case of Dato’ Seri Tiong King Sing v. Datuk Justine Jinggut [2003] 6 MLJ 433 decided as follows: “It cannot be doubted that the court is empowered under O 18 r 19 of the RHC or its inherent jurisdiction to dismiss an action on the found that the pleadings disclosed no reasonable cause of action, but such jurisdiction ought to be sparingly exercised, and only in very exceptional cases..’’ [17] The Plaintiff submits that for the purpose of deciding whether the statement of claim discloses a reasonable cause of action, the facts pleaded must be presumed to be true. (see Mooney v. Peat, Marvick, Mitchell [1967] 1 MLJ 87 at p. 88) [18] The Plaintiff submits that the facts pleaded in the Statement of Claim must be presumed to be true and so long as the Statement of Claim discloses some cause of action, the claim is unsuited to be struck out as there are clearly triable issues. The Law [19] The High Court in the case of Chan Tse Yuen & Co (suing as a firm) v. Yap Chin Gaik, Elaine & 2 Ors [2017] MLJU 1459 had unhesitatingly struck out the defamation claim by reason amongst others the defence of absolute privilege applied to the publication of the impugned letter as follows: “[106] Hence any which way that one looks at it or analyses it, the impugned letter in the present case is a document that is inherently related to or is ancillary and arising from the taxation OS and is accordingly protected by absolute privilege. [111] Here the claimant is a law firm. But, the law makes no distinction and applies equally to all. It is important to emphasize that the raison de-etre for the defence of absolute privilege is the public interest in the due and proper administration of justice. [112] Thus, regardless of the alleged merits of the plaintiff’s claim for defamation, if the situation or occasion is one which the law recognizes as being protected by absolute privilege, then the defence of absolute privilege would be denuded and emasculated if the plaintiff’s action for defamation is not struck out and dismissed summarily. The judgment of Ma JA in Roger Wong’s case, makes it clear that the defence of absolute privilege is, “as the name suggests, absolute privilege in nature. It will provide a complete answer to any claim for defamation even where the relevant remarks are completely untrue or made with malice”. Thus, it is the law that a claimant in a suit for defamation will be without a remedy if absolute privilege succeeds.” “Qualified privilege [116] I turn now to the defence of qualified privilege. [117] In the seminal case of S. Pakianathan v. Jenni Ibrahim [1988] 2 MLJ 173 SC at pages 173, 178 the then Supreme Court, per Wan Hamzah SCJ, adopted English propositions and held that qualified privilege includes communication made bona fide in which the party communicating has an interest, or a duty, if made to a person having a corresponding interest or duty although it contains matters which, without this privilege, would be defamatory. [119] …As solicitors for their client, they were under a duty to refer the matter to their client and elicit the appropriate response and repudiate the allegations made therein. [120] As such, it is my finding that the defendants have established that the impugned letter was written on an occasion of qualified privilege.” [20] The Federal Court in the case of Chong Chieng Jen v. Govt. of Sarawak [2019] 1 CLJ 329 at pp 362 - 363 decided as follows: “[62] In an action for defamation, the first task of the court is to determine whether the words complained are of capable of bearing a defamatory meaning. This is a question of law which turns upon the construction of the words published. The next task of the court is to ascertain whether the words complained of are in fact defamatory. This is a question of fact which depends upon the circumstances of the particular case.” Analysis and Findings [21] The crux of the 1st Defendant’s application is reflected in the letter dated 9.12.2021 (Encl. 27 p. 56 – 62 at p. 57 para.6) and the relevant part of the said letter is reproduced in paragraph 4 of the Statement of Case (Encl. 2) as follows: “4. In a letter dated 9.12.2021 written by the second defendant on the first defendant’s behalf and addressed to one Messrs Y.C. Wong, Advocates and Solicitors, the first defendant first defendant falsely and maliciously caused to be written and published of the plaintiff the following defamatory words: “There are serious doubts as to your client’s mental capacity to litigate, affirm affidavits and to give instructions to your counsel and firm. In this regard our client was recently informed of the same by Tan Sri Muhammad Shafee bin Md. Abdullah and has obtained a statutory declaration from him deposing the same. A copy of the statutory declaration is enclosed herein as Annexure A for your attention. Based on the foregoing, we are instructed by our client to object to your counsel’s and your continued representation of Tan Sri Dato’ Kam Woon Wah.” [22] The matters stated in the letter dated 9.12.2021, forms part of the correspondence and was directed to the Plaintiff’s solicitors issued in response to the letters by Messrs Y.C. Wong dated 1.12.2021 and 8.12.2021 with regards to Suit 140 in the course of the court proceedings. [23] The Court is of the considered view that the words complained of contained in the said letter (Encl. 27 p. 56) are protected by absolute privilege. On this premise alone by the application of defence of absolute privilege, the Plaintiff’s claim in Encl. 2 against the 1st Defendant ought to be struck out. [24] The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories as outlined by Devlin LJ in the case of Lincoln v. Daniels [1962] 1 QB 237 at p. 257: “How, then, is it contended that its proceedings are affected by the absolute privilege enjoyed by the Bench of an Inn? The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v. M'Ewan,33 in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor.” [25] It is now settled law that statements made in the course of judicial proceedings or statements contained in documents made in the judicial proceedings are absolutely privileged. In short, absolute privilege attaches to statements made in the course of judicial proceedings. [26] The Court of Appeal in the case of S. Ashok Kandiah & Anor. v. Dato’ Yalumallai @ Ramalingam s/o Muthusamy & Anor. [2010] MLJU 2218 at pp 470 - 472 dealt with the defence of absolute privilege whereby the Court decided that in the context of the present appeal, absolute privilege undoubtedly attaches to the impugned letter. [27] It is also well established that any publication within the norms of court proceedings will attract the concept of absolute privilege. (see Court of Appeal case in Hock Peng Realty Sdn. Bhd. v. Ting Sie Chung @ Ting Sieh Chung and another appeal [2018] 2 MLJ 51 at pp. 62 - 64. [28] By reason that the said letter was issued by the 2nd Defendant on 1st Defendant’s instructions in respect of Suit 140, the said 1st Defendant’s letter is absolutely privileged under the following categories:

the said letter dated 9.12.2021 was issued in coram judice; and

the said letter was brought into existence for the purposes of Suit 140. [29] By the aforesaid reason and following the principle in the case of Chan Tse Yuen (supra) that that qualified privilege includes communication made bona fide in which the party communicating has an interest, or a duty, if made to a person having a corresponding interest or duty although it contains matters which, without this privilege, would be defamatory, it is my finding that the said letter dated 9.12.2021 was written on the occasion of qualified privilege as reflected below:

the said letter dated 9.12.2021 was issued in the specific context of the proceedings between parties in Suit 140;

the communication by 2nd Defendant as the 1st Defendant solicitors at the material time was a bona fide communication in which the 1st Defendant has an interest or duty to communicate receipt of the Statutory Declaration and to take objections for the necessary protection of the 1st Defendant’s own interest;

The Plaintiff was represented by Messrs Y.C. Wong and the 2nd Defendant as solicitors representing 1st Defendant in Suit 140 at the material time, were bound by Rule 42 of the Legal Profession (Practice & Etiquette) Rules 1978 which prohibits direct communication with the Plaintiff, unless express consent is given;

Messrs. Y.C. Wong as the Plaintiff’s solicitors who was in receipt of the impugned letter similarly has a corresponding duty and interest to receive the said letter and/or a corresponding duty and interest to the Court, particularly in circumstances where there are doubts as to whether the Plaintiff has the necessary mental capacity to continue litigation and/or provide instructions;

the 1st Defendant through her solicitors (2nd Defendant) had a legitimate duty and/or interest to communicate the words complained of to the Plaintiff’s solicitors in Suit 140, who had a legitimate interest to be informed of the sworn Statutory Declaration received by 1st Defendant with the 1st Defendant accompanying objections; and/or

the communication vide the said letter was not at all maliciously made, but written to the Plaintiff’s solicitors in Suit 140, only after receipt of the Statutory Declaration. [30] Further, I am of considered view that the impugned letter does not seem to have dented or damaged the Plaintiff’s reputation with no other publication elsewhere by the 1st Defendant and it would be an abuse process if this case were to proceed for trial. [31] I have perused considered the written submissions and arguments articulated by both parties before arriving at this decision.

[32] Based on the reasons adumbrated above, the 1st Defendant’s application in respect of Encl. 25 prayer (a) is hereby allowed with costs of RM15,000.00 to be paid forthwith by the Plaintiff to the 1st Defendant. Postscript [33] Consequently, the case management date of 17.6.2025 and the trial dates of 30 and 31 March 2026 for Encl. 1 are hereby vacated. Dated: 8 May 2025 sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur COUNSEL Solicitors for the Plaintiff Michael Chow (Derek Chong, Koh Chuan Zhan and Neoh Kai Sheng with him) Messrs. Derek Chong Kuala Lumpur. Solicitors for the 1st Defendant Lim Wei Jiet Messrs. Lim Wei Jiet Kuala Lumpur.