Thien Hong Machinery (M) Sdn Bhd v 1. ) Ms Time Sdn Bhd (BA-12B-9-01/2024)

These are consolidated appeals by the Defendant 1 and Defendant 3 (the Appellants herein) against the decision of the learned Sessions Court Judge who after full trial, found both liable for defamation and awarded damages and injunctive relief in favour of the Plaintiffs (the Respondents herein).

The Plaintiffs have filed a cross-appeal, contending that the damages awarded were manifestly inadequate and that the injunction should be made permanent.

The Plaintiff 1 is a reputable Bumiputera company in the engineering industry and in the crane and/or machineries rental business which has been incorporated since 1995. The Plaintiff 2 is its Managing Director, a titled businessman.

Defendant 1 engaged Defendant 3 under a debt recovery agreement which expressly described Defendant 3 as Defendant 1’s agent and issued a letter of authority.

On 13.12.2018, banners were hung from Defendant 1’s forklift and displayed in front of Plaintiff 1’s office in Subang Jaya and in front of Wisma TNB. The banners expressly named Plaintiff 1 and Plaintiff 2 with the words “Please pay your suppliers”.

The Plaintiffs contended that the banners referred to them and their natural and ordinary meaning bore defamatory imputations.

Defendant 3 acted under the instructions of Defendant 1 but personally arranged for and executed the hanging of the banners.

The learned Sessions Court Judge held Defendant 1 and Defendant 3 liable for defamation, finding the defence of justification failed, and ordered damages of RM60,000.00, costs of RM10,000.00, an apology, retraction, undertaking and injunction.

Defendant 1 and Defendant 3 contend the learned Sessions Court Judge erred in rejecting their defence of justification. Their grounds include: a) Defendant 3 acted solely under the instructions of

b) The words were true because Plaintiffs owed suppliers. c) Plaintiff 2 were guarantor of Plaintiff 1’s debts. d) There was no publication on social media.

It is undisputed that Defendant 3 acted under Defendant 1’s instructions. Nonetheless, in law both principal and agent may be liable for defamation where the agent is the publisher. The High Court in Tan Sri Harris bin Mohd Salleh v Dr Shaari Isa & Ors [2019] 7 MLJ 77 affirmed that liability attaches to every person responsible for publication, and that defamation is a tort of strict liability. The liability therefore extends to the person who authorises the publication and to the person who executes it. Accordingly, both Defendant 1 (as principal) and Defendant 3 (as agent and publisher) were correctly found jointly liable by the learned Sessions Court Judge.

It is further undisputed that Plaintiff 2 never signed any letter of guarantee. Defendant 3 conceded this point.

The defence of justification places the burden of proof squarely on the Defendants. They must prove, on a balance of probabilities, that the defamatory words were true in substance and facts. This includes proving that, as at 13.12.2018, Plaintiff 1 and/or Plaintiff 2 owed suppliers sums then due and payable, and that Plaintiff 2 was personally liable.

In Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242, the Court of Appeal held that justification must be strictly proved; mere suspicion or inference cannot suffice. In Tan Sri Harris bin Mohd Salleh (supra), the High Court confirmed that although the civil standard applies, the evidence must be clear and credible given the seriousness of the imputation.

The evidence adduced fell short. Defendant 3 produced letters from Super Crane Machinery (M) Sdn Bhd and Lian Seng Skylift Services & Trading, but those letters were dated 23.09.2019 and 28.03.2019 which were after the publication. They could not prove indebtedness as at 13.12.2018.

Defendant 3 also argued that Plaintiff 1 owed Defendant 1 RM40,925.74. The learned Sessions Court Judge found, based on contemporaneous documents, that this had been fully settled: a) RM37,765.87 was paid on 12.12.2018, and b) The balance was deducted earlier by way of a contra note issued on 26.01.2018.

Accordingly, as at 13.12.2018 there was no outstanding sum owed by Plaintiff 1 to Defendant 1.

The learned Sessions Court Judge’s finding that the impugned statements were untrue was correct. The defence of justification was not made out.

As to social media, the claim was based on banners displayed in public. Publication was sufficiently proven by their prominent display.

The finding of facts was amply supported by evidence and were not perverse. This court will not interfere, the appeals fail.

Defendant 1 argued that the learned Sessions Court Judge erred in holding it liable, contending that Defendant 3 was an independent contractor, that the banner was Defendant 3’s idea, and that Defendant 1 cannot be held responsible. Reliance was placed in UG Hotel Property Sdn Bhd v Chee Soo Lam & Anor [2013] 2 MLJ 235 (CA) and RHB Bank Berhad v Moon Trading Sdn. Bhd [2014] 5 CLJ 443 (CA).

This submission fails. Firstly, the “independent contractor” argument was never pleaded in the Denfendants’ defence. It is trite law that parties are bound by their pleadings (See: Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 (FC)). The Defendants’ case proceeded on the basis that Defendant 3 was engaged by Defendant 1 to collect debts from the Plaintiffs and Defendant 3 was given Letter of Authority and an agreement for the collection of debts.

Second, the evidence showed that Defendant 3 acted on Defendant 1’s instructions; the banners were hung by using skylift rented from Defendant 1 and operated by Defendant 1’s employee; and Defendant 1 continued to engage Defendant 3 even after the incident. Defendant 1 cannot now disclaim responsibility.

This is not the case of pure vicarious liability but of agency and joint publication. As held in Tan Sri Harris bin Mohd Salleh (supra), liability in defamation attaches to “every person responsible for publication.”

The Sessions Court Judge referred to a High Court case of Siva Subramaniam M Shanmugam v Frances Joycelyn Nathan & Ors [2023] 2 MLRH 641 which has since been overturned by Court of Appeal. While its persuasive value is diminished, the learned Sessions Court Judge’s conclusion of joint participation is supported independently by the evidence.

The Defendants argued that the learned Sessions Court Judge erred by not considering Invoice No. 18/11/036 dated 28.11.2018 for RM15,619.18 being late payment interest, acknowledged by Plaintiff 1 on 8.12.2018.

I find no merit in this submission. The invoice, though in the agreed bundle, was not pursued in cross-examination or put to witnesses. Documents in the bundle do not prove themselves unless properly tested.

Even if considered, it does not alter the fact that the defamatory statement – that as at 13.12.2018 Plaintiff 1 owed suppliers and Plaintiff 2 was personally liable – was false. Record showed Plaintiff 1 had settled sums on 12.12.2018 (RM37,765.87) and earlier by contra note on 26.01.2018. Plaintiff 2 never guaranteed Plaintiff 1’s debt.

The defence of justification must be strictly proved: Dato Seri Mohammad Nizar bin Jamaluddin (supra). The Defendants failed to discharge that burden.

The Plaintiffs also relied on the tort of malicious falsehood. To succeed, they must prove:

Publications of false words: The banners expressly named Plaintiff 1 and Plaintiff

The learned Sessions Court Judge’s findings, which I affirm, show the words were false.

Malice: Malice means the Defendants knew the words were false. Defendant 1 never checked whether any debt was due as at 13.12.2018 nor whether Plaintiff 2 was legally liable. Defendant 3 continued harassment even after proceedings were filed. This satisfies malice.

Damage: At common law, special damage is usually required. But under section 6 of the Defamation Act 1957, proof of special damage is not necessary where publication is calculated to cause pecuniary damage. The Plaintiffs suffered loss of goodwill, reputation, image and creditworthiness.

These elements are satisfied. The Plaintiffs therefore succeed in malicious falsehood in addition to defamation.

The Plaintiffs argue that damages of RM60,000.00 were manifestly inadequate and seek enhancement and a permanent injunction.

The Defendants submitted that this was fair and should not be disturbed. The Plaintiffs by cross-appeal, prayed for enhancement of general damages and also sought aggravated and exemplary damages.

It is correct that appellate courts are slow to interfere with damages unless they are manifestly inadequate or based on wrong principle. However, RM60,000 was plainly inadequate given the seriousness of words, the wide publication and the Defendants’ malicious conduct.

The defamatory words were serious. They directly named the Plaintiffs and accused them of refusing to pay suppliers. Publication was by banners in public and prominent places, calculated to injure reputation.

The Defendants acted with malice in which they failed to verify the truth of their allegations, refused to apologise, and persisted in harassment up to April 2019, even after proceedings had commenced. This justifies an uplift by way of aggravated damages. In the present case, the Defendants’ deliberate public shaming of the Plaintiffs without basis does invite stern disapproval. However, I am cautious not to double compensate. I therefore consider it more appropriate to reflect both compensatory and aggravated elements in a single global sum, and not to make a separate award of exemplary damages.

The authorities to support enhancement: a) Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan Chee Yioun [2000] 4 MLJ 77 (FC) – aggravated damages where malice and persistence are shown. b) Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2012] 1 LNS 1377 – public defamation justifies higher awards. c) Dato’ Sri Anwar Ibrahim v NSTP [2010] 5 CLJ 301 – serious allegations against public figure warranted awards of RM100,000.

In light of these authorities and facts, the award of RM60,000.00 was manifestly inadequate. A fair and proportionate sum is RM150,000.00 payable by Defendant 1 and Defendant 3 as general damages inclusive of aggravated elements. No separate exemplary damages awarded.

The learned Sessions Court Judge granted injunctive relief. Given Defendant 3’s admission of continued harassment until April 2019, there is a real risk of repetition. In The New Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36, injunctions were affirmed to prevent continuing defamation.

Exercising this Court’s appellate power under section 69 of the Court of Judicature Act 1964, the injunction is varied into a permanent injunction.

The consolidated appeals by Defendant 1 and Defendant 3 are dismissed with costs.

The Plaintiffs’ cross-appeal is allowed with costs.

The judgement of the Sessions Court is varied: a) The damages awarded are increased to RM150,000.00 payable jointly by Defendant 1 and Defendant 3 to the Plaintiffs. b) The orders for apology, retraction and undertaking are affirmed. c) The injunction is varied into a permanent injunction restraining Defendant 1 and Defendant 3 from further publication of similar defamatory matter.

Costs of the appeal and cross-appeal are fixed at RM10,000.00 payable jointly by Defendant 1 and Defendant 3 to the Plaintiffs.

The order of the Sessions Court awarding RM10,000.00 costs at trial remains undisturbed. Dated 20 November 2025 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Low Eu Thuan & Ang Jinn Fenn (Messrs Wilson Lim (Kuala Lumpur) For the Respondents : Yeo Yen Hock (Messrs Shui Tai)