Choong Chee Hoong&3lagi V Woo Ah Choy @ Foo Ah Choy&5lagi

  

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W-02-802-04/2013

 

DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN)

 

RAYUAN SIVIL NO. W-02-802-04/2013

 

ANTARA

 

1. CHOONG CHEE HOONG

 

2. YEOW BON CHONG

 

3. LIM TING CHING

 

4. CHONG KWAN KIAN … APPELLANTS

 

DAN

 

1. WOO AH CHOY @ FOO AH CHOY

 

2. YOKE QUAN @ LIM YOKE GUAN

 

3. MONG TONG SANG @ MOONG CHING HENG

 

4. LIM YAT FOONG

 

5. GOOH AH LAI

 

6. CHEAN CHOO ENG … RESPONDENTS

 

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-58-Tahun 2009

 

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Antara

 

Sin Chong @ Lee Sin Chong … Plaintif

 

Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

Disatukan dengan

 

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-59-Tahun 2009

 

Antara

 

Choong Chee Hoong . Plaintif

 

Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

Disatukan dengan

 

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(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-60-Tahun 2009

 

Antara

 

Koh Ah Bah … Plaintif

 

Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

Disatukan dengan

 

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-61-Tahun 2009

 

Antara

 

Yeow Bon Chong … Plaintif

 

Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

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5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

Disatukan dengan

 

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-62-Tahun 2009

 

Antara

 

Lim Ting Ching … Plaintif

 

Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

Disatukan dengan

 

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur )

 

(Bahagian Sivil)

 

Guaman No. S 23-63-Tahun 2009

 

Antara

 

Chong Kwan Kian … Plaintif

 

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Dan

 

1. Woo Ah Choy @ Foo Ah Choy

 

2. Yoke Quan @ Lim Yoke Guan

 

3. Mong Tong Sang @ Moong Ching Heng

 

4. Lim Yat Foong

 

5. Goh Ah Lai

 

6. Cheah Choo Eng … Defendan-Defendan

 

CORAM

 

Balia Yusof bin Hj. Wahi, HMR Varghese George, HMR Badariah binti Sahamid, HMR

 

JUDGMENT

 

Background

 

[1] Six plaintiffs filed their claim separately against the Respondents for defamation in the court below. Their cases were heard together and their claims were dismissed by the learned Judicial Commissioner (JC). The Respondents’ counterclaim against them was also dismissed. Dissatisfied with the decision, four of the plaintiffs had

 

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filed an appeal, hence, the four Appellants herein. The Respondents did not appeal.

 

[2] The four Appellants and the other two plaintiffs are the directors and shareholders of a company styled, Wilayah Car Pool Bhd. (WCP). The First Appellant is also the chairman of the company and the Fourth Appellant is the manager of the same. The Fourth Appellant is also the manager of another company called Pusat Latihan Memandu Cemerlang Berhad.

 

[3] All the six Respondents are shareholders of WCP.

 

[4] The alleged defamatory words were contained in a letter dated

 

7.4.2009 published by the Respondents, the relevant part of which reads:

 

“We further note that the pursuant to Section 128 of the Act, the directors of WCP have the right to make representations to every member of WCP. The representations of the directors of WCP are to be made from the directors’ utmost effort, and the Act does not require Requisitionists to provide any reasons for removal of directors, for the purpose of the preparation of the representations. However, at the request of the directors of WCP and for the purpose of your goodself to take immediate action in convening the EGM at the soonest possible, we listed below amongst others the reason for the removal of the directors:

 

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– Plenty of complaints are brought to our attention on the conduct of the directors of WCP in running the business;

 

– The directors of WCP are not act at the best interest of the members; and etc.”

 

[5] The learned JC had found that the words are defamatory, it made reference to the Appellants and there was publication of the same.

 

[6] The Respondents raised qualified privilege as their defence. The learned JC agreed and further found that the Appellants had failed to prove malice on the part of the Respondents in publishing the impugned letter.

 

[7] In finding that the defence of qualified privilege applies, the learned JC held at page 56 of Rekod Rayuan Jilid 1:

 

“Defenden mempunyai tanggungjawab secara moral untuk menulis kepada Setiausaha Syarikat mengenai aduan mereka. Defenden- defenden di sini berhak bergantung kepada pembelaan perlindungan bersyarat. Prinsip perlindungan bersyarat secara tradisinya menghendaki wujud elemen tanggungjawab dan kepentingan.”

 

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[8] On malice, the learned JC merely stated in a one liner that the Appellants had failed to prove malice on the part of the Respondents in publishing the aforesaid letter.

 

[9] In their counterclaim, the Respondents claimed that the Appellants had conspired to deny their rights as shareholders in WCP and the claim is an abuse of the court process.

 

[10] Again, in a one liner, the learned JC found no evidence to support the Respondent’s counterclaim.

 

The Appeal

 

[11] Mr. Francis Goh, learned counsel for the Appellants raised only two issues before us, namely, whether the defence of qualified privilege applies and the issue of malice.

 

[12] We feel the two issues raised may be dealt with together and we will do so accordingly.

 

[13] To start with, it was submitted by learned counsel for the Appellants that the issuance of the notice of requisition under S.144 of

 

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the Companies Act 1965 (CA) and addressed to the secretary of the company was not in accordance with subsection (2) of the same which provides that each notice is to be deposited at the registered office of the company. The address of the secretary is not the address of the registered office of the company. It was clear that the Respondents had chosen to issue the said notice to the board of directors of WCP. The company secretary of WCP was never under any legal or statutory duty to receive the said notice under Section 144(1) of the CA.

 

[14] It was further submitted that, given the fact that it was the Respondents who made and/or had chosen to make the first step in communicating with the directors of WCP through the company secretary and not through the registered office of WCP, future and/or further correspondence between the directors of WCP and the Respondents, including the impugned letter dated 7.4.2009, through the channel of the company secretary of WCP do not and/or cannot amount to any privilege, qualified or otherwise, whether in law or in fact. The Respondents therefore cannot avail themselves to the defence of qualified privilege in respect of the said letter dated

 

7.4.2009 as there was no duty on the part of the company secretary to receive the said letter in the first place. It was at all material times the

 

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intention of the Respondents to communicate with the board of directors of WCP through the company secretary.

 

[15] On the issue of qualified privilege, we agree with the finding of the learned JC and the reasons given in her judgment at page 56 of Rekod Rayuan Jilid 1 which we had reproduced earlier.

 

[16] In Adam v Ward [1917] AC 309, Lord Atkinson had opined:

 

“A privilege occasion is an occasion … where the person who makes a communication has an interest or duty, legal social or normal to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it; the reciprocity is essential.”

 

[17] In our view, the learned JC had rightly concluded that there was in existence the element of reciprocity when she found “wujud elemen tanggungjawab dan kepentingan.”

 

[18] Alternatively, learned counsel further submitted that even if qualified privilege is an available defence, it has been defeated by malice. In support of that view, the following events/facts were listed as constituting the elements of malice on the part of the Respondents:

 

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(i) On or about 19.12.2008 the Respondents had requisitioned for an EGM of WCP to consider, amongst others, 6 resolutions for the removal of the Appellants as directors of WCP;

 

(ii) Pursuant to the said requisition, an EGM of WCP was held and convened on 19.1.2009 wherein the said 6 resolutions in question were rejected by the shareholders of WCP;

 

(iii) The Respondents had in fact attended the said EGM held on 19.1.2009 and were aware of the decisions made therein by the shareholders of WCP, namely to reject the said 6 resolutions in question;

 

(iv) Notwithstanding the decisions made at the EGM held on 19.1.2009, the Respondents had, approximately 18 days later, requisitioned for another EGM vide their notice of requisition dated 6.2.2009;

 

(v) The subsequent requisition by the Respondent dated

 

6.2.2009 were for the purpose of considering, amongst others, 6 resolutions for the removal of the Appellants as directors of WCP although the 6 similar resolutions in question had already been rejected by the shareholders of WCP at the EGM of WCP held on 19.1.2009.

 

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(vi) On 15.4.2009 there was a requisition for EGM issued by WCP. Thereafter, the Respondents had proceeded to inform the shareholders of WCP that an EGM of WCP would be held and convened on 4.5.2009;

 

(vii) The Respondents had however subsequently cancelled the said EGM proposed to be on 4.5.2009 without providing any reason and/or explanation for such cancellation.

 

[19] We have noted that the Appellants had, in their statements of claim listed out the particulars on the allegation of malice as stated above.

 

[20] We agreed with the submissions of learned counsel for the Appellants that the complaint about the conduct of the Appellants as directors of WCP running the business not in accordance with the best interest of the company remained as mere allegations. The evidence of SD1 in cross examination confirmed that the complaint was more in respect of Pusat Latihan Memandu Cemerlang Bhd.

 

[21] We had further considered the written submissions of the Appellants’ counsel in respect of the evidence of SD2, SD7, SD8 and

 

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SD9 pointing to the fact that they never made any complaint to SD1 on the allegation of improper running of WCP. So were the evidence of SD10 & SD11. This was in direct contradiction with the evidence of SD1 who said they all did.

 

[22] We were invited to scrutinise the evidence of SD4, SD5 and SD6 pertaining to the issue of the lorry and saloon cars whom learned counsel submitted to be unreliable and/or questionable. We further note that the learned JC had on a few occasions interjected and prompted SD4 to give his answers to the question put to him. SD4 had refused to directly answer the questions posed to him by learned counsel. Likewise, the evidence of SD5 and SD6. It took quite some prompting from the learned JC for SD5 to answer the questions posed by counsel during cross examination. These are all questions relating to the alleged misconduct of the Appellants in running the business of WCP.

 

[23] Having considered the evidence of the defence witnesses, we agree with the Appellants’ counsel’s submission that the complaints against the Appellants’ conduct in running the company remained as mere allegation.

 

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[24] Malice in defamation cases as we understand it means, any ill will, spite or some wrong or improper motive and it may be established by way of intrinsic and extrinsic evidence. Malice defeats the defence of qualified privilege. Malice may also be inferred where a defendant made a defamatory statement knowing it to be false, or he did not believe what he published was true, or that he made it recklessly not caring whether it was true of false, or where he deliberately stopped short in his inquiries in order not to ascertain the truth. (Tun Datuk Patinggi Haji Abdul Rahman Yaakub v. Bre Sdn Bhd [1996] 1 MLJ 393).

 

[25] This court, in Dato’ Seri Mohamad Nizar Jamaluddin v. Sistem Televisyen Malaysia Berhad & Anor [2014] 3 MLRA 92 had stated:

 

[36] In the defence of qualified privilege, the underlying exonerating element is that the defamatory statements were made without malice. The law is that it lies on the plaintiff to show that there was malice that had actuated the defendant when he published the impugned statements. In other words, it is not for the defendant to show that it had published the impugned statement without malice. We noted that the plaintiff in this case had recognised this and had averred in his reply to the statement of defence that the defendants had published the news report with malice aforethought.

 

[37] We are of the view that malice, not unlike intention, is a state of mind. Invariably, unless there is an express admission by the defendant that he has been malicious in his conduct, then the presence of malice can only be deduced or inferred from the circumstances obtaining in each case. In the

 

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case of S Pakianathan v. Jenni Ibrahim & Abother Case [1988] 1 MLRA 110, Wan Hamzah J ( as he then was) had this to say on the subject matter of malice, at p 121 of the report:

 

“Where the defendant purposely abstained from inquiring into the facts or from availing himself of means of information which lay at hand when the slightest inquiry would have shown the true situation, or where he deliberately stopped short in his inquiries in order not to ascertain the truth, malice may rightly be inferred.”

 

[26] The Supreme Court in S. Pakianathan v. Jenni Ibrahim [1988] 2

 

MLJ 173 observed at page 179:

 

“The protection afforded by the law to a publication made on an occasion of qualified privilege is not an absolute protection but depends on the honesty of purpose of the person who makes the publication. If he is malicious, that is, if he uses the occasion for some other purpose than that for which the law gives protection, he will not be able to rely on the privilege. If the publication takes place under circumstances which create a qualified privilege, in order to succeed the plaintiff has to prove express malice on the part of the defendant. Broadly speaking, express malice means malice in the popular sense of or desire to injure the person who is defamed. To destroy the privilege, the desire to injure must be the dominant motive for the defamatory publication. Knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

 

The mere proof that the words are false is not evidence of malice, but proof that the defendant knew that the statement was false or that he had no genuine belief in its truth when he made it would usually be conclusive evidence of malice. If the defendant publishes untrue defamatory matter recklessly without considering whether it be true or not, he is treated as if he knew it to be false. In ordinary cases, what is required on the part of the defamer to entitle him to the protection of

 

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the privilege is honest belief in the truth of what he published. But if he was moved by hatred or a desire to injure and used the occasion for that purpose, the publication would be maliciously made even though he believed the defamatory statement to be true. Where the defendant purposely abstained from inquiring into the facts or from availing himself of means of information which lay at hand when the slightest inquiry would have shown the true situation, or where he deliberately stopped short in his inquiries in order not to ascertain the truth, malice may rightly be inferred: Lee v. Ritchie.”

 

[27] Duncan and Neill on defamation (2nd Ed) in para 17.4 said:

 

The term ‘express malice’ has been the source of some confusion because the word ‘malice’ as a word in general use connotes spite or ill-will whereas the express malice which can defeat a defence of fair comment or qualified privilege can include within its ambit not only spitefulness but also a state of mind which is not ‘malicious’ in the ordinary sense of the word.

 

[28] In Liew Poon Siak v. Low Hing King & Ors [2010] 7 MLJ 731, I

 

had an occasion to say the following on the defence of qualified privilege and malice:

 

“It is trite one of the tests to be applied for the application of this defence is that the publication must be with right and honest motives and without malice (see also Rajagopal v Rajan [1972] 1 MLJ 45). As I have found earlier, when making the statements, the first defendant was driven with some improper or ulterior motives. ‘Malice which avoids qualified privilege is will or spite or any indirect or improper motive in the mind of the defendant at the time of publication and actuating it’ (Halsbury’s Laws of England (3rd Ed) Vol 24 s 138 p 79). It was not honestly made

 

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for the common convenience or welfare of the association or out of his social or moral obligations. It was made to attack the plaintiff and urging members of the association to condemn the plaintiff. Under these circumstances I do not think the first defendant can avail himself of the defence of qualified privilege.”

 

[29] In our view, from the narrations of facts, it is evident that the desire of the Respondents to have the Appellants removed from the Board of the company reigned paramount. Unhappy or perhaps dissatisfied with the result of the first EGM they mounted a second attempt and at the third intended EGM they cancelled it without any reason. In our view this was sufficient evidence of malice. There was intent to injure the Appellants.

 

[30] There is another aspect of the appeal which warrants our comments and we take the liberty to remind trial judges of the care and attention required of them in penning their grounds of judgment. Learned counsel for the Appellant had rightly voiced his complaints against the so called “one liner finding” made by the learned JC in respect of the issue of malice.

 

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[31] As pages 56 and 57 of the Rekod Rayuan Jilid 1, we found the learned JC to have made a conclusion on this issue in just three simple sentences. They are:

 

“Plaintif menyatakan Defenden-defenden telah bertindak secara niat jahat.

 

Beban adalah atas Plaintif untuk membuktikannya.

 

Dari keseluruhan keterangan, saya dapati Plaintif gagal membuktikan terdapatnya niat jahat dari Defenden-defenden dalam penerbitan surat bertarikh 7.4.2009 tersebut.”

 

[32] Learned counsel submitted that there was insufficient/non appreciation of facts and evidence by the learned JC.

 

[33] We agree with learned counsel.

 

[34] The need for a speaking and reasoned judgments needs no emphasis. We had, on various occasions reiterated on this issue and the latest being in Norisman b. Razali v. Public Prosecutor [2015] 3 MLJ 125 wherein we have also cited Ex p Khan (Mahmud) [1983] QB 790, Balasingham v. PP [1959] 1 MLJ 193 and Thong Ah Fatt v. Public Prosecutor [2011] SGCA 65 to name a few.

 

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[35] Still on the same subject matter, this court had in Deepanraj a/l

 

Subramaniam v. Public Prosecutor [2015] 3 CLJ 439 referred to a

 

passage in the judgment of the Federal Court in Tan Kim Leng & Anor

 

v. Chong Boon Eng & Anor [1974] 2 MLJ 151 where the late HRH

 

Raja Azlan Shah had spoken:

 

“A judicial determination of dispute where substantial question of mixed fact and law arise is satisfactorily reached only if it be supported by the most cogent reasons that commend themselves to the learned judge. Recording of reasons in support of a decision of a dispute serves more purpose than one. It is intended to ensure that the decision is not the result of whim or fancy. A party to the dispute is ordinarily entitled to know the grounds on which the learned judge has decided against him, more so, when the judgment is subject to appeal. An appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just.”

 

[36] We agree with learned counsel for the Appellants that there was no evidence to suggest that the learned JC had appreciated the facts and the evidence in the matter before her. We failed to see in what manner she had appreciated and assessed the evidence on the issue of malice. Her grounds of judgment are lacking on the issue except for the above stated three sentences.

 

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[37] We have perused the appeal records and considered the oral and written submissions of the Appellant’s learned counsel. We have also considered the written submission of the Respondent’s counsel. For the record, learned counsel for the Respondents relied solely on his written submissions and wished to add no further by way of oral submission.

 

[38] We find there is merit in this appeal. The appeal is allowed. We set aside the decision of the learned JC and find that malice had been proven and therefore the defence of qualified privilege is inapplicable. We find the Respondents liable for defamation. We give judgment for the Appellants.

 

[39] On the issue of damages, learned counsel for the Appellants drew our attention to the Appellant’s prayers in their statements of claim at page 144 of Rekod Rayuan Jilid 1 namely in respect of prayers (i), (ii), (iii), (v) and cost. The Appellants suggested RM300,000.00 as general damages and a further RM300,000.00 as aggravated damages against each of the Respondents, an injunction to restrain the Respondents or their agents or servants against publishing or causing to be published the words used in the letter dated 7.4.2009 or such similar words

 

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defamatory to the Appellants and interest on the aforesaid damages at 8% per annum from the date of filing of the action to date of realisation.

 

[40] In reply, learned counsel for the Respondents submitted no evidence has been led to prove damages during the trial and offered a sum of RM5,000.00 as damages against each Respondent.

 

[41] We took time to deliberate on the award of damages. We have considered the factual matrix of the case and have also considered the position of the Appellants as directors of the company. They have been defamed. The publication of the impugned letter although only made to the secretary of the company had repercussions on the Appellants. A concerted effort has been hatched between the Respondents to oust the Appellants from the company and they failed.

 

[42] We award damages in the sum of RM50,000.00 to each of the Appellants and the Respondents are jointly and severally liable to pay such damages. We also grant an injunction in the terms as prayed and award interest at 5% per annum on the sum awarded from the date of judgment until the date of full settlement of the same. Cost is fixed at RM15,000.00 and the deposit is to be refunded. This appeal is allowed in those terms.

 

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tt

 

DATO’ BALIA YUSOF BIN HJ. WAHI

 

Judge, Court of Appeal Malaysia

 

Dated: 5th October 2015

 

Parties:

 

For the Appellants: Francis Goh, Tetuan Francis Goh & Co Advocates & Solicitors

 

For the Respondents: Fong Teck Fook, Tetuan Yusuf Khan & Fong Advocates & Solicitors

 

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