Thong KING CHAI V HO KHAR FUN case review PDF

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Thong KING CHAI V HO KHAR FUN case review...

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THONG KING CHAI V HO KHAR FUN [2018] 1 LNS 374

ISSUE 

The issue is whether impugned words were published to a third party



Whether plaintiff’s reputation was capable ofbeing lowered in eyes of ordinary reasonable man



Whether statements were capable of bearing a defamatory meaning



Whether defendant could rely on defence of justification

FACTS OF THE CASE The plaintiff is a former General Manager of Joint Management Body (JMB) of Pangsapuri One South while the defendant is an owner and was a resident of one of the units in One South. One day, the JMB had a meeting with the Commissioner of Buildings MPSJ (COB) and also, the defendant was present as resident’s representative. At the end of meeting, COB directed JMB to display all the minutes of meeting within 2 days from the date of the meeting. About a week and half later, as there is still no display of the minutes of the meeting, the defendant sent an email to the COB, MACC and others. The email is regard to clarification to management and JMB/JMC violent Malaysia Law and Act and suspect corruption. Apart from that, the defendant also posted a comment on the One South Facebook Group. The posting stated the request to see Thong King Chai approval minutes of meeting, also how voted him to be and that it is illegal holding the position as GM until the appointment is done with procedure. Therefore, the plaintiff filed a claim against the defendant on the ground the defendant had defamed him.

CONTENTION OF PARTIES The Plaintiff 

The plaintiff claims that the Defendant had defamed him and injured his reputation by reason of the Defendant’s publication of some of the words in the Email and the Facebook Posting.



The Plaintiff pleads that the impugned words were defamatory of the Plaintiff. He claims that the impugned words in their natural and ordinary meaning meant and/or were understood to mean that the plaintiff abused his position, plaintiff’s appointment is illegal, acted in dishonest manner, committed serious offence and involved in corruption.



The Plaintiff seeks damages, including aggravated damages and an injunction to restrain the Defendant by himself, his agents or servants from publishing false statement.

The Defendant 

The defendant admits that the email was sent to the COB and MACC and that it was copied to the Member of Parliament of Subang Jaya, YB Hannah Yeoh and her assistant. He also admits that he made the Facebook posting on the One South Facebook Account.



The defendant claims that the email obviously reveals that it is a complaint by him, as a One South resident, about the lack of minutes of meetings, the absence of the One South JMB's financial records, and the conflict of interest regarding the plaintiff's relationship with his wife and kid.



The defendant claims that the posting was made to a private Facebook group of One South residents and is not available to the general public. He claims that when taken as a whole, the Facebook Posting is exclusively about the defendant's request to see the plaintiff's appointment meeting minutes.



Defendant denies that the Email and the Facebook Posting are defamatory and that it means and/or is understood to mean the meanings pleaded by the Plaintiff.

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As a defence, the defendant claims justification and/or fair comment.

JUDGEMENT The court ruled that the Email and Facebook Posting are not capable of carrying a defamatory meaning and are not defamatory in the first place. Even though the statements in the Email and Facebook Post were defamatory, the defendant can use the defence of justification and/or

the defence of fair comment to defend himself. The plaintiff's suit against the defendant is dismissed with costs.

GROUNDS OF JUDGEMENT The general rule to establish a defamation, the burden of proof lies on the plaintiff on the balance of probabilities. There must be the statement published to third party, referred to plaintiff and it had the defamatory imputations as provided in Ayob Saud’s case. Therefore the court look whether the statements in this case fulfilled the three elements. 

First element, the court opined that both statements in email and Facebook posting had been published to third party. This is because, the email and Facebook posting were sent on the name of defendant’s account, and the court found that the email and Facebook posting were published to the person named in the email’s address list and also the persons who had access to the One South Facebook Group. In addition, the defendant did not provide any evidence to rebut this presumption of fact established by the Section 114A of the Evidence Act. Furthermore, the court found it is irrelevant whether the Facebook group can be access by others or not, for purpose of the plaintiff’s onus of proving the statement was published. Propounded in Ayob Saud’s case, the other residents are third parties. Accordingly the test of publication to third party was met by the defendant’s publication of the Facebook posting to the said group.



On the second elements, the defendant had already admits that both statements refers to the plaintiffs but only issues relating to his appointment as general manager and the conflict of interest.



Third element, whether the statements were defamatory. Based on the case of Chok Foo Choo, the court used the two test to find whether the statements were defamatory. The first is whether the words capable of bearing a defamatory meaning. And if affirmative, the second test is whether the words in fact defamatory. On the first test, the court must consider the article as whole and not only consider part of the article. Not only that, the court must ascertain that the words are defamatory in nature. To do that, the court is necessary to identify whether the plaintiff’s reputation is capable

of being lowered in the eyes of the ordinary reasonable man. Therefore, the court have considered the statements as whole, and putting himself in the place of ordinary reasonable man. In the court judgment, the from reading the statement, ordinary reasonable man would understand the words to mean that the defendant is requesting to see the minutes of the meeting and until the clarification of the appointments is given, to hold the post and should terminate immediately. The statements do not have the tendency to lower the plaintiff estimation of the right thinking members of society. For these reasons, the court found that both statements not capable of bearing defamatory meaning. For the second test, the court understand as reading the statements as a whole, the defendant was complaining about the absence of the minutes of meeting that referred to plaintiff’s appointment as General Manager and the issue of conflict of interest relating to plaintiff’s wife and son. Therefore, the court find that the words are not in fact defamatory to the plaintiff. • The court also in view that defendant is entitled the defence of justification if the words in the Email and the Facebook Posting had been found by this Court to be defamatory. This is because the Defendant has proven that the alleged defamatory imputations in the statements are true in substance and in fact. Also, the comment is a matter of public interest because the matter relating to the JMB’s non-compliance with the law and the Plaintiff’s failure to comply with the requirement of O. 78 r. 3(3) of the ROC is fatal to its plea that the impugned statements were published with express malice by the Defendant.

CASE REFERRED 

Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152 HC



Chok Foo Choo @ Chok Kee Lian v. The China Press Bhd [1999] 1 CLJ 461 CA



Dato’ Seri Anwar bin Ibrahim v. Wan Muhammad Azri Wan Deris [2014] 1 LNS 662 HC

COMMENTARIES I agree with the court decision in this case. In order to succeed in a defamatory case, the plaintiff must proof the three requirements of defamation. However, the elements could not be fulfilled as the court found that statements are not capable of bearing defamatory meaning

and not in fact defamatory. Also, the rule of section 114A makes a presumption of fact that the statement come from the defendant’s account. Although the presumption can be rebut, nevertheless the defendant failed to provide evidence to rebut this presumption. Overall, in order to establish a defamatory case, the plaintiff has to prove the statements are defamatory and even if statement are defamatory, still the defendant in this case had the defence of justification and fair comments to defence himself....