Tiong Yong Jie Stanley v Lee Jian Xun (BA-12BCY-1-01/2024)

This is an appeal by the Appellant/Plaintiff against the decision of the learned Sessions Court Judge (SCJ), delivered on 12 January 2024, which dismissed the Appellant/Plaintiff’s defamation claim against the Respondent/Defendant with costs of RM10,000.00.

For consistency and ease of reference, the parties will be referred to as they were in the Sessions Court.

The Plaintiff’s claim was premised on the publication of certain statements by the Defendant in a Telegram group comprising 510 members who were residents and/or owners of H2O Residences. The Plaintiff alleged that these statements were defamatory and caused injury to his reputation. The Defendant denied that the statements were defamatory and raised the defences of qualified privilege and fair comment.

After a full trial, the learned SCJ held that the Plaintiff failed to establish the defamatory character of the statements and allowed the Defendant’s defences. The Plaintiff now appeals against that decision.

The Plaintiff and Defendant are both owners of units at H2O Residences and were members of a Telegram group created for residents. At the material time, the Defendant was the elected Chairman of the Joint Management Body (JMB).

The Telegram group was an informal communication platform where issues affecting residents were discussed. A recurring topic was the incidence of parcel thefts, which had affected several residents, including the Plaintiff. The Plaintiff had actively voiced his concerns in the group, suggested remedial actions, and even contemplated legal proceedings against the management.

On 6 August 2021, following a post by the Defendant regarding painting works, the Plaintiff commented at 4.17 p.m., referencing an earlier complaint he made in 2019. The Defendant responded at 4.45 p.m. with a message that contained two paragraphs, which the Plaintiff considered defamatory. The impugned statements read as follows: “I have no memory if I have offended you or did anything that is despicable liking of yours, which I do not even wish to know. You have been preying me, tagging me and trying to show your bewildered supremacy knowledge and connection about you have lawyer friends” … “…I know you are enjoying the fun of mocking me and some residents but again I reiterate, I don’t know you and I believe none residents have interest of your special hobby. I have other full time work and duty as JMC to all (residents) not only specific residents” (herein referred to as “the Impugned Message”)

The Plaintiff alleged that these words conveyed defamatory imputations, suggesting that he was a person who harassed others and sought to display intellectual superiority condescendingly. He claimed the words exposed him to ridicule and contempt.

The Plaintiff’s solicitors issued a letter of demand to which the Defendant responded with a denial. The suit was subsequently filed. After the trial, the Sessions Court dismissed the claim. Hence, this appeal.

It is trite that an appellate court will not readily disturb findings of fact by a trial judge unless it is shown that such findings were “plainly wrong”. This principle is grounded in the understanding that the trial judge has the advantage of observing the witnesses firsthand.

The Federal Court in Ng Hoo Kui & Anor v Wendy Tan Lee Peng, (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 reaffirmed the “plainly wrong” test, and held: “(1) The COA erred in reversing the findings of fact of the trial judge and allowing the appeal of the respondents. The COA’s observation that there was ‘no judicial appreciation of the evidence’ by the trial judge was unsustainable in view of the findings the trial judge had made in his judgment. The COA had erroneously applied the ‘plainly wrong’ test in a broad and general manner without identifying specifically why the trial judge’s findings were plainly wrong on the key issues, namely the purpose of the payments made by Ng. Essentially, the COA disagreed with, and reversed, the trial judge’s conclusion as to the purpose of the payment by Ng of RM6m to TEK and took the approach that it could reach a different conclusion from that of the trial judge on the facts and evidence (see paras 81, 150 & 154).

It was not sufficient for the COA to reverse the findings of fact merely because on a particular point of evidence it disagreed with the trial judge’s conclusion on whether one party or the other was to be believed on the evidence adduced. Although there might have been inconsistencies in the evidence — which meant that another judge might have reached a different conclusion — this was not relevant when considering if a trial judge’s findings could be overturned (see para 151). …

The ‘plainly wrong’ test operated on the principle that the trial court had had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acted on the printed records. The ‘plainly wrong’ test was not intended to be used by an appellate court as a means to substitute its own decision for that of the trial court on the facts. As long as the trial court’s conclusion could be supported on a rational basis in view of the material evidence, the fact that the appellate court felt like it might have decided differently was irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence was examined by the appellate courts (see paras 34, 76 & 148).” (emphasis added)

Similarly, in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, the Federal Court held that an appellate court may only intervene where the trial court failed to appreciate or properly evaluate the evidence, amounting to a lack of judicial appreciation.

Upon thorough consideration of the Record of Appeal, the learned SCJ’s grounds of judgment, and the written and oral submissions of both parties, this Court finds no basis to disturb the decision below. The conclusions reached by the trial court were supported by a proper appreciation of the evidence and consistent application of settled legal principles in the law of defamation.

The appeal centres around a Telegram message published by the Defendant on 6 August 2021 at about 4.45 p.m. in a group chat of over 500 residents and/or parcel owners of H2O Residences. The Plaintiff alleged that the Defendant’s message, which included the phrases “preying me,” “bewildered supremacy knowledge,” and a reference to a “special hobby,” was defamatory and could lower his reputation in the eyes of the community.

However, the learned SCJ rightly found that the Plaintiff had selectively quoted the Impugned Message in isolation, without setting it against the full context of the exchange. In cross-examination, the Plaintiff admitted that he had not reproduced the full content of the Defendant’s message, which was a response to the Plaintiff’s own comment made just 30 minutes earlier. This omission undermines the Plaintiff’s assertion of malicious and defamatory intent.

The trial court applied the correct legal test derived from authorities such as Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315 and Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371. It is for the Plaintiff to prove that the words are defamatory, refer to him, and were published to a third party. Additionally, as recognised in Keluarga Communication v Normala Samsudin [2006] 2 MLJ 700, the assessment of meaning must be approached objectively, in the manner in which right-thinking members of the community would interpret the words, taking into account the full context of the publication.

The Impugned Message, when read as a whole, lacks the essential hallmarks of actionable defamation. It does not impute dishonesty, criminal conduct, or moral failing. Rather, it is a sarcastic and defensive response by the Defendant to the sustained criticism and legal threats posted by the Plaintiff in the same forum. The Defendant’s message was reactive in nature and, viewed through the perspective of an ordinary community member, would not have had the effect of lowering the Plaintiff’s reputation.

Furthermore, the Plaintiff’s own conduct and postings in the group were highly relevant. The Plaintiff had made several prior comments criticising the management and the JMB, proposing legal action, and displaying familiarity with legal procedures. His tone was assertive and occasionally confrontational. The Defendant’s response, albeit strongly worded, was not unprovoked. The Plaintiff cannot now rely on that response as an independent act of defamation isolated from the circumstances in which it arose.

Critically, the Plaintiff failed to prove actual reputational damage. The evidence did not support his assertion that the statements exposed him to hatred, contempt, or ridicule. On the contrary, the learned SCJ found, and this Court agrees, that the Plaintiff received affirmative support from other group members shortly after the Defendant’s message. Two residents explicitly voiced agreement with the Plaintiff and even endorsed his views. The Plaintiff confirmed this during cross-examination.

When asked whether anyone in the group expressed that they now viewed him as arrogant, despicable, or offensive, the Plaintiff admitted that there were none. He also conceded that his belief in reputational harm was speculative. His statements that the Defendant’s “supporters may look ill upon me” or that he had “likely lost some sense of credibility” were unsupported by any actual testimony or independent evidence. In law, speculation cannot satisfy the burden of proof on a balance of probabilities.

The Plaintiff also confirmed that the Impugned Message did not impact his professional career. He was subsequently employed in Hong Kong and suffered no demonstrable loss of standing in the H2O Residences community. This further undermines the pleaded claim of reputational harm.

The Plaintiff argued that the Defendant’s position as JMB Chairman added weight to the publication and increased the likelihood of injury. However, that same role placed the Defendant within the scope of the defence of qualified privilege. The Sessions Court’s finding on this point was correct. The Defendant was fulfilling a duty to address concerns raised by a resident regarding community matters and did so in a forum comprising residents with a corresponding interest.

As established in Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127, qualified privilege arises where a person with a legal, moral, or social duty communicates with another who has a corresponding interest in receiving that communication. Here, the Telegram group was restricted to residents and parcel owners. The Defendant’s message was a response to questions posted by the Plaintiff and was part of a communal discussion about residential governance. The publication was not for the general public.

The defence of fair comment was also rightly accepted. The Impugned Message were value-laden comments, not assertions of fact, and were based on the Plaintiff’s own statements in the group. The Defendant had reasonable grounds to believe that the Plaintiff’s posts were critical and aggressive in tone. His response, though sarcastic and perhaps discourteous, was a subjective opinion on matters of public interest. There is no evidence that the Defendant acted out of malice.

The learned SCJ made a comprehensive evaluation of the facts and law, citing the case of Nurul Izzah binti Anwar v Tan Sri Khalid bin Abu Bakar & Anor [2018] MLJU 472 and Rajagopal v Rajan [1971] 1 LNS 117. This Court sees no reason to depart from those conclusions. There was no misdirection, and finding that can be said to be plainly wrong or unsupported by the record.

In conclusion, the Plaintiff failed to establish that the Impugned Message were defamatory or caused actual reputational harm. Even if they were so, the Defendant’s actions were covered by qualified privilege and fair comment. The judgment of the Sessions Court is well-reasoned and correct in law and fact.

Upon a careful evaluation of the evidence, I find that the learned SCJ did not err in fact or law in arriving at his findings and conclusions on the issues raised in this appeal. I am satisfied that there are no substantial or compelling grounds warranting appellate interference with the said findings.

Accordingly, for the reasons set out above, the Appellant/Plaintiff’s appeal is hereby dismissed with costs of RM10,000.00. Dated: 28 May 2025 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Appellant: Khong Zhi Jian & Esther Leong Kar Hong (Messrs Tan & Khong Chambers) For the Respondent: Jennifer Hiu Jing Yin & Lau Zhi Ying (Messrs Othman Hashim & Co.)