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High Court of Sabah and Sarawak |
] [Hide Context] IN OPEN COURT | ||
JUDGMENT | ||
| . | Pleadings | |
The plaintiff is suing by a writ and statement of claim dated 10th January 2009 for | ||
libel arising from two newspaper notices published in two newspapers by the | ||
defendants who are her employer and immediate superior respectively and | ||
malicious falsehood on a police report made on 17th March 2008 against the | ||
plaintiff. The defendants plead justification for the libel and qualified privilege to | ||
the plaintiff‟s claims. |
| . | Facts of the Case | |
(1) | The plaintiff was employed as marketing executive for the area of Tawau for the | |
| st defendant from 1st September 2007 to 31st March 2008. | ||
(2) | The 2nd defendant was the area manager of the 1st defendant and the superior | |
officer of the plaintiff. | ||
(3) | On the 4th March 2008 the plaintiff was handed a letter dated 1st March 2008 |
(4) | The plaintiff ceased to go to work after the 8th March 2008 because according to | |
the plaintiff to avoid having to face the 1st defendant who fired her and who was | ||
the only other person in her office. | ||
(5) | On 17th March 2008 the 1st defendant lodged a police report (the “police report”) | |
on behalf of the 2nd defendant against the plaintiff (Ex. “ABP-1” at page 7) | ||
alleging the following (translated from Bahasa Malaysia) : | ||
“A worker i.e. Mabel Yin Yoke Main I.C. No. 691024-01-6142, based on a | ||
mutual understanding, her service was terminated because her behavior and | ||
character which is not acceptable by the company. While she was in the | ||
company, she has misused her power by directing and instructing a media | ||
company to print pamphlets for a politic party campaign purposes. This act | ||
of her clearly shows a contravention with the company‟s rules and | ||
regulations which the company is not involved with such activities.” | ||
(6) | On the 19th March 2008 the defendants caused two kinds of notices to be | |
published in two newspapers concerning the plaintiff (Ex. “ABP-1” at pages 8 to | ||
| ) as follows: | ||
(a) The Borneo Post edition of 19th March 2008 at page 15: |
1 (i) Notice of departure (“1st Notice”) :
Located on the top left of the page with the total size of 13 cm wide and 15.9 cm height (see Ex. “ABP-1” at page 8) worded in English and Malay respectively to the following effect :- “ NOTICE This is to inform our valued customers, that Ms Mabel Yin Yoke Main I/C7 No. 691024-01-6142, has left the company on the 8th March 2008. Since
then, SABARICE SDN BHD has no connection and has nothing to do with whatever things she may undertakes. Related suppliers and agencies are hereby requested to contact us for any enquiries regarding the above. Any promises or contract of business dealt by her on behalf of this company to related suppliers/agencies, are hereby requested to consult us for clarification. We apologise for any troubles caused. Contact Person : Kevin Kwek – 012 5120 859” (*Note: Only the words italised and underlined above are complained of by the plaintiff as defamatory of her.)17 (ii) Notice for return company documents (“2nd Notice”):
Located on the top right of the page with the total size of 13 cm wide x 15.9 cm height (see Ex. “ABP-1” at page 8) worded in English and Malay respectively to the following effect :- “ NOTICE To: Ms YIN YOKE MAIN @ MABEL (I/C No: 691024-01-6142) You are requested to return whatever documents which carry the letter head & logo of company (Sabarice Sdn Bhd) that belong to the1 company within SEVEN (7) working days of this notice. You are reminded
that you shall be are responsible to whatever action that you have taken. Thank You. SABARICE SDN BHD,-TAWAU BRANCH Contact Person -089-713055 (Hjh Fatimah)”6 (b) Morning Post edition of 19th March 2008 at page 5:
(i) Notice of departure : Located on the bottom of the page on the left of the Notice for return of documents with the size of 13.4 cm width and 21.6 cm height (see Ex.10 “ABP1” at page 9) same wording as the 1st Notice in the Borneo Post
(Ex. “ABP1” at page 8) and worded in Chinese, English and Malay respectively. (ii) Notice for return company documents : Located on the bottom right of the page with the size of 13.4 cm width and 21.6 cm height (see Ex. “ABP1” at page 9) same wording as the16 2nd Notice in Borneo Post (Ex. “ABP1” at page 8) and worded in
Chinese, English and Malay respectively.18 (7) After a complaint to the Industrial Relations Department the 2nd defendant
19 pursuant to the memorandum of agreement dated 28th October 2008 settled by
the Industrial Relations Department agreed to pay the plaintiff RM7,600.00 | ||
(RM1,900.00 x 4 months) (Ex. “ABP-1” at page 10). By paragraph 2 it states | ||
specifically that the parties shall have no further claim against each other in | ||
regard to the termination of employment. | ||
| . | P la intiff’s 3 Cla ims | |
(1) | st Notice: Notice of departure |
3 termination of employment by the 1st defendant is unlawful. By paragraph 4 of the
4 defence, the 1st defendant contends that the plaintiff had been lawfully terminated
5 by the letter dated 1st March 2008 giving her 1 month‟s notice of termination of
6 her employment (Ex. “ABP-1” at pages 5-6) (1st defendant‟s termination notice”).
7 It has been established by the evidence of the 2nd Defendant (DW1) that he only
8 handed the 1st defendant‟s termination notice to the Plaintiff on the 4th March
10 (“NOP”)). Since the one month‟s notice is to start from the 1st March 2008 and
11 ends on 31st March 2008 (see paragraph 4 of Ex. “ABP-1” at pages 5-6) there
13 the notice to the plaintiff on 4th March 2008 for commencement of the notice on
14 the 1st of March 2008. Contrary to the allegation in paragraph 4 (ii) of the Defence
17 turn up for work for two consecutive days according to the 1st defendant‟s rules
and regulation (Ex D1: at Paragraph 20A), the plaintiff was within her rights not to serve out the notice by the defendant‟s wrongful termination by inadequate notice and to lodge a complaint to the Industrial Relations Department for her wrongful21 dismissal by the 1st defendant. The compensation was rightfully given to her
(through Ex. “ABP-1” at page 10) for breach under the circumstance and not ex- gratia as contended by the defendants in paragraph 4 of the defence and this “righteousness” unfortunately had set the tone of the defence in this matter and its conduct.26 (b) Was the 1st Notice justified and justifiable?
27 On the facts before the Court, the 1st Notice was therefore published by the
28 defendants to say that the plaintiff “has left the company on the 8th March 2008”
9 the wrongful termination of service, the 1st defendant can now legitimately be said
to be permitted and to justified to disclose factually and is justified in doing so to11 say that the plaintiff had “left the company on the 8th March 2002”, after she failed
to turn up to work which is the actual state of affairs subsisting. Both parties had by their conduct treated the other party as wanting the relationship of14 employee/employer to end on the 8th March 2008, which is distinct and separate
from the other issue of legality of the termination of employment.16 The other two aspects of the 1st Notice in essence is to give notification as to the
17 1st defendant‟s disclaimer for responsibilities for the plaintiff‟s acts thereafter and
18 who to contact for information on the 1st defendant‟s current matters previously
27 Nevertheless, the plaintiff contends that the 1st Notice was understood in their
natural and ordinary words to mean that the plaintiff was a dishonorable, dishonest and untrustworthy person and according to paragraph 7 of the statement of claim had the following innuendoes or hidden meaning:- “(a) That the plaintiff may have some dishonorable undertaking which the 1st defendant would like to disassociate. (b) That the plaintiff would fraudulently and/or dishonestly make promises or contracts of business under the disguise of an employee/agent of the 1st defendant despite the cessation of her employment. (c) That the plaintiff was an untrustworthy person, against whose9 commercial conduct or business dealings the 1st and 2nd defendants
would be willing offer clarification.”11 The 1st Notice though poorly worded (e.g. “has no connection and has nothing to
do with whatever things she may undertakes”), as correctly pointed out by learned counsel for the defendants must first be read as objectively as a whole and not truncated as set out in paragraph 6 of the statement of claim. (See JB Jeyaretnam v Goh Chok Tong (1984) 1 LNS 139: where the words must be considered in the context of the whole speech made by the defendant and in those circumstances. This whole article concept was accepted by K Nathan J. in18 Ratus Mesra Sdn. Bhd. v Sheik Osman Majid (1999) 8 CLJ 449.)
In Le Mercier’s Fine Furnishings Pte Ltd v Italcomm (Malaysia) Sdn Bhd (1996) 3 CLJ 590 James Foong J. (as he then was) at 593 (f) stated: “To determine the cause of action based on whether by the natural and ordinary meaning of the said statement is defamatory, this Court must first find out what is the natural and ordinary meaning of the said statement, i.e. its literal and inferential form would convey to an ordinary person.” James Foong J. further stated at 593 (i) (ibid) with approval: “It is also necessary to stress that in considering this issue on the meaning, the “Court must not put a strained or unlikely construction upon the words, if they are capable of bearing a number of good interpretation, it is unreasonable to seize upon one bad one to give the word a defamatory sense” Capital Countries Bank v Henty [1880] CPD 514.”4 Likewise, the 1st Notice contains the normal acceptable information which in its
natural and ordinary meaning to any ordinary person (see definition of Lord Reid6 in Lewis v Daily Telegraph (1964) AC 234 at 258) is in essence to notify the 1st
defendant‟s customers and suppliers and the public generally in regards to the termination of the plaintiff‟s employment and the follow-up from it. It may be9 possible to read the innuendoes pleaded by the plaintiff into the 1st Notice but
10 following Le Mercier’s case (supra), in the context and purpose the 1st Notice was
13 The 1st Notice is justified on the facts as stated before and is justifiable as it does
not exceed the bounds of propriety even though poorly phrased and the Court will find that it does not nor should it be construed in its natural and ordinary meaning or to have the innuendoes raised in paragraph 7 (a), (b) and (c) of the statement of claim as contended for by the plaintiff as to make it defamatory of the plaintiff. To hold otherwise would mean that nobody can ever publish a legitimate notice to notify the public at large of staff changes and the follow-up from such event without being faced with an action for defamation based on the inference from the false innuendoes as pleaded by the plaintiff to all such legitimate notices of employment termination. (c) Qualified Privilege The defendants also raise the defence of qualified privilege for publication of the25 1st Notice. On this in the case of Toogood v Spyring (1834) 1 CM & R 181 Parke
B stated : “In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law consider such publication as malicious, unless it is fairly made by a person in the charge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communication, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communication are protected for the common convenience and welfare of society.” (emphasis added) Since it is normal commercial practice for an employer to publish a notice similar12 in content to the 1st Notice on an employee ceasing his employment, the Court
13 will also find that the 1st Notice served a legitimate purpose of the 1st defendant to
16 of the 1st defendant and the transitional follow-up measures. Therefore even if in
its natural and ordinary meaning or the innuendoes as contended for by the plaintiff as defamatory were made out, the Court will hold that qualified privilege19 will attach to this 1st Notice published under such circumstances as a defence for
the defendants. On this common interest and rebuttal thereof by malice, Chang Ming Tat FJ in John Lee and Anor v Henry Wong Jan Fook (1981) 1 MLJ 108 at page 110 (F) observed : “But if it is an occasion of qualified privilege, then the concern of the court hearing the defamation action is to decide whether there was a common interest in the party making the defamatory communication and in the party receiving it. This statement of the law on qualified privilege is taken28 from Adam v. Ward.(1) It was cited by the learned trial judge himself. Per
Lord Finlay L.C. at page 318 and page 162 respectively: “The law of privilege is well settled. Malice is a necessary element in an action for libel, but from the mere publication of defamatory matter malice is implied, unless the publication were on what is called a privilege occasion. If the communication were made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified, and may be rebutted by proof of express malice. It is for the judge, and the judge alone, to determine as a matter of law whether the occasion is privileged, unless the circumstance attending it are in dispute, in which case the facts necessary to raise the question of law should be found by the jury.” (Emphasis added) No reply has been filed in Court by the plaintiff giving particulars of express malice for the purpose of rebutting the defence of qualified privilege of the defendants as required by Order 78 rule 3 (3) of the RHC 1980. (see Anne Lim Keng See v The New Straits Times Press (M) Bhd and the Malay Mail (2008) 6 CLJ 679). On such failure, the plaintiff cannot therefore raise any issue of malice and this is not an issue before the Court. The Court will also note that the express malice pleaded in paragraph 18 of the statement of claim seems to relate to the malicious falsehood claim (preceding24 paragraphs 14 to 17) and not for the publication of the 1st Notice. In any event the
malice pleaded has no material bearing on rebutting the qualified privilege26 attaching to the 1st Notice.
28 The Court will find that the publication of the 1st Notice by the defendants is
29 protected by qualified privilege as it is a statement made by the 1st defendant on
interest to know about the status of the plaintiff‟s employment with the 1st | ||
defendant and on follow-up dealings consequent to her employment termination. | ||
The qualified privilege defence for the 1st Notice succeeds. | ||
(d) Size of 1st Notice | ||
The other contention is the use of the advertisement to embarrass the plaintiff | ||
(see paragraph 20 (a) and (c) of the statement of claim) by negative perception | ||
from the publication viz. was such a large advertisement of the 1st Notice really | ||
necessary? The Court will observe that the size of the publication does appear to | ||
exceed normal commercial practices when it is compared to the everyday | ||
publication of similar notices we see in the newspapers. Does that render its | ||
publication defamatory? The Court will find notwithstanding the plaintiff‟s | ||
contention that though the publication of 1st Notice is by its size out of the | ||
ordinary and meant to embarrass her but nevertheless this does not by itself | ||
without more render the 1st Notice the contents of which have been found to be | ||
not defamatory to become defamatory. | ||
(e) Conclusion on 1st Notice | ||
The Court will find that publication of the same 1st Notices in the two newspapers | ||
viz. Borneo Post (2 languages) and the Morning Post (3 languages) by the | ||
defendants is justifiable and its contents are justified under the circumstances as | ||
to render it not defamatory per se of the plaintiff and further that the 1st Notice | ||
was published on an occasion where qualified privilege attaches. | ||
(2) | nd Notice: Notice for return company documents | |
(a) Purpose of this 2nd Notice | ||
The defendants in paragraph 4 (iii) of the defence puts up the reason for the | ||
publication of the 2nd Notice for the plaintiff “to return whatsoever documents |
4 Defendant, the 1st Defendant had on several occasion requested the
5 Plaintiff to return all documents which carry the 1st Defendant‟s letter head
10 “5. On the 8th March 2008, the plaintiff had ceased to return to work and left
11 the 1st Defendant‟s company without completing the 1 month notice.
13 files or documents from a lap top belonging to the 1st Defendant.”
The defendants use this allegation to support their defence of justification and15 qualified privilege for the publication of the 2nd Notice. By paragraph 15 of the
16 defence, the 2nd defendant denies liability not being the author or publisher of the
17 2nd Notice.
18 (b) How is the 2nd Notice defamatory to the plaintiff
21 or document of the 1st defendant (at page 6 of Ex P1). In her cross examination
at lines 183 to 207 NOP she had consistently denied that she deleted the files23 from her laptop computer of the 1st defendant used by her or took away the hard
copies of documents of the deleted files.25 The 2nd Notice according to the plaintiff is defamatory because it was understood
in their natural and ordinary words to mean that the plaintiff was a dishonorable, dishonest and untrustworthy person and according to paragraph 7 of the statement of claim to have the following innuendoes which are exacerbated by1 the innuendoes from the 1st Notice (paragraph 7 (a) to (c) of Statement of
Claim):- “e. That the plaintiff was troublemaking employee who had wrongfully taken4 and retained the letterhead and company logo of the 1st defendant for
personal gain or self-serving reason. f. That the plaintiff was a stubborn person who refused to return the7 requested items despite repeated demands by the 1st and 2nd
defendants, thus justifying the latter to cause the publication as they did. g. That the plaintiff took and/or would continue to take irresponsible action10 for which the 1st and 2nd defendants shall hold her responsible that the
plaintiff was a stubborn person who refused to return the requested items12 despite repeated demands by the 1st and 2nd defendants, thus justifying
the latter to cause the publication as they did.” In paragraph 20 of the statement of claim she considers the publication wholly unnecessary and intended solely to embarrass her name and creditworthiness. It must be noted that the plaintiff had relied on the English versions of the Notices as the basis of her action (paragraphs 6 and 11 of the Statement of Claim) and treats in paragraphs 5 and 10 of the Statement of Claim that the Malay version and the Malay/Chinese versions of the Notices in the Borneo Post and the Morning Post respectively have the same meaning as the English version. The defendants have not given any evidence that the non-English versions in the Notices convey a different interpretation or meaning from that of the English versions set out in paragraph 6 of the Statement of Claim.24 (c) Is the 2nd Notice defamatory?
25 In the case of Le Mercier’s case (supra) it was held that the defendants‟
13 The 2nd Notice would be defamatory of the plaintiff according to Lord Atkin in Sim
v Stretch [1936] 2 All ER 952, if : “……the words were calculated to expose him to hatred ridicule or contempt in the mind of a reasonable man or would tend to lower the plaintiff in the estimation of right-thinking members of society generally.” In Tun Datuk Patinggi Haji Abdul-Rahman Ya'kub v. Bre Sdn Bhd & Ors, (1995) 1 LNS 304, Richard Malanjum J (as he then was) adopted this similar approach: “Thus the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty. Words could still be defamatory even if they did not really lower a plaintiff in the estimation of those to whom they were published. The law looks only to its tendency”4 The Court finds that the 2nd Notice addressed to the plaintiff has all the features
enunciated in the above cited case and is defamatory of the plaintiff as contended by the plaintiff. The defendants by publicly asking for the return of the documents within 7 days from the plaintiff in their natural and ordinary meaning to an ordinary person is accusing the plaintiff as having unlawfully taken away or9 stolen documents of the 1st defendant. The 2nd Notice in the mind of a
reasonable man has the tendency to subject the plaintiff to hatred ridicule and contempt by implying improper and dishonest behavior lacking in integrity upon12 the plaintiff in taking away or stealing the 1st defendant‟s property and which
would lower the plaintiff in the estimation of right-thinking members of society generally by labeling her as a dishonourable, dishonest or untrustworthy person or a thief. The aforesaid observation on the inferment of the ordinary person made by Lord Reid in the Lewis case (supra) was cited in AJA Peter v. OG Nio & Ors. (1979) 118 LNS 1; (1980) 1 MLJ 226 and used for identification of the plaintiff as being
defamed whereby Abdul Hamid J. (as he then was) gave judgment in favour of the plaintiff and in doing so said at p. 233: “In the light of these principles of law, it is pertinent to consider a publication in the context in which the words are used and the mode of publication, for example, the prominence given to the heading employed and the nature of the publication, for example, the emphasis placed upon certain words used. They are important considerations because they tend to induce an ordinary man to infer from the words complained of the meaning meant to be understood.” (Emphasis added).1 Based on the above principles in AJA Peter’s case (supra), the 2nd Notice in the
words and emphasis made therein: “You are requested to return whatever documents which carry the letter head & logo of company (Sabarice Sdn Bhd)4 that belong to the company within SEVEN (7) working days of this notice” can
also be found to bear all the inferment or false innuendoes as contended by the plaintiff in particular under paragraph 7 (e) to (g) of the statement of claim. Under paragraph 7 (e) of the statement of claim, the plaintiff is being held out by9 the 2nd Notice as having taken the documents of 1st defendant without permission
or unlawfully or in short implying her lack of probity by their taking and retention. Under paragraph 7 (e) and (g) of the statement of claim, that the plaintiff will use13 the misappropriated 1st defendant‟s letter heads and logo to do unauthorized
transactions.16 Under paragraph 7 (f) and (g) of the statement of claim, the 1st defendant had to
17 resort to publication of the 2nd Notice because despite the 1st defendant‟s
21 statement of claim in relation to the last sentence of the 2nd Notice when read
22 together with the 1st Notice is the accusation leveled at the plaintiff of being
24 defendant name even though her employment with the 1st defendant has ceased.
25 Noting that a similar warning has already been made in the 1st Notice
26 disassociating with the plaintiff by the 1st defendant statement that it: “has no
30 2nd Notice being published besides the 1st Notice gives the added wrong
impression to an ordinary person that because of her acts of taking the2 documents as alleged by the 2nd Notice that the plaintiff has been expressly or
3 impliedly dismissed by the 1st defendant from her employment for cause rather
4 than terminated by notice as intended by the 1st Notice. This is a “false” innuendo
21 In the case of CS Wu v Wang Look Fung & Ors (1981) 1 MLJ 178, the plaintiff
had complained that the juxtapositioning of his photograph with his name “Mr. Wu” immediately under the headlines: “Big Probe on Lawyers” was defamatory of him and the defendants had conceded they had libeled the plaintiff.25 Similarly the Court will find that the juxtapositioning of the 1st Notice by itself like
26 the photograph in CS Wu’s case (supra) which is innocuous results in a “false
28 material like the 2nd Notice beside it. The resulting express or implied “false
innuendo” created as implied from paragraph 6 of the statement of claim is that2 any ordinary person reading the 1st and 2nd Notices together will conclude that
the plaintiff had been dismissed from employment by her taking away of the4 documents of the 1st defendant when in fact her services were terminated by a
5 one month‟s notice. The effect of publishing the 1st and 2nd Notices together as
9 dismissed from her employment with the 1st defendant.
10 However the Court will find that the defamatory 2nd Notice positioned besides the
11 non-defamatory 1st Notice will not based on what has been found on the 1st
13 paragraphs 7 (a) to (c) of the statement of claim as to make the 1st Notice
14 libelous of the plaintiff because of the 2nd Notice. The 1st Notice also remains
16 positioning of the Notices is created by the 2nd Notice and remains in the 2nd
17 Notice. Like the photograph in CS Wu’s case (supra), the 1st Notice per se
20 from another source to support and aggravate the libel created by the 2nd Notice.
21 Having ascertained that the 2nd Notice is defamatory of the plaintiff in law and
22 fact, and causing another libel read with the 1st Notice of express or implied
24 (d) Justification of the 2nd Notice
(i) Did the plaintiff without permission or wrongfully take and retain the26 letterhead and company logo of the 1st defendant?
From the evidence adduced at the trial by the defendants, there are only28 two letters with the 1st defendant‟s letterhead and logo produced at the trial
originating from the defendant admitted to be with the plaintiff namely, the2 plaintiff‟s letter of appointment dated 4th September 2007 from the 1st
3 defendant (Ex. “ABD-1” at pages 3 – 8) and the 1st defendant‟s letter of
6 subject to recall by the 1st defendant.
7 The blanket wording of the 2nd Notice: “whatsoever documents which carry
10 even documents from the 1st defendant to her as being a subject matter for
11 the return by the 2nd Notice i.e. having emanated from the 1st defendant to
12 an employee would still belong to the 1st defendant. The 1st defendant in law
14 blanket demand. This renders the 2nd Notice defamatory of the plaintiff from
its natural and ordinary meaning in that she has wrongfully retained all correspondence and documents addressed to her or given to her from the17 1st defendant.
The only other allegation made against the plaintiff by the defendants is19 through the 2nd defendant‟s witness statement in Ex “D1” paragraph 21A:
“We also further discovered that the plaintiff had deleted all the data or documents filed in a laptop computer used by her during her employment and also the hard copies of the documents in the office files. These are private and confidential documents or files as they consist of the company‟s proposed ideas for projects to promote and advertise the company‟s products. If disclosed and fallen on the wrong hands of our business competitors they can be used by them for their promotion and advertising of their products and it may jeopardize the plan and the interest of company.”1 Later on at Ex “D1” paragraph 22A the 2nd defendant had added:
“We tried to contact her by telephone but could not get hold of her, so the company‟s CEO, Mr. Tan instructed me to lodge the police report on 17.03.2008. Then our Human Resource & Administration department instructed us to put up two (2) notices in the newspaper on 19.03.2008…” When we read the police report (Ex. “ABD-1” at page 41) lodged by the 1st defendant the Court finds that the defendants were only complaining that the plaintiff had: “misused her power by directing and instructing a media company to print pamphlets for a politic party campaign purposes. This act of her clearly shows a contradiction with the company‟s rules and regulations which the company is not involved with such activities.” There was no complaint lodged on the deletion of files in her laptop computer or the unauthorized taking away of the hard copies of the deleted “private and confidential” documents by the plaintiff. The Court notes that these deleted files in the plaintiff‟s laptop computer belonging to the 1st defendant comprised in Ex. “ABD1” at pages 64 - 197 were subsequently retrieved by a computer technician. In cross-examination by learned counsel for the plaintiff on this aspect, the21 2nd defendant had not shown himself to be a reliable witness:
Backup copies23 At line 647 of the NOP the 2nd defendant said:
“All these documents were kept by Mabel in her laptop, there were no backup copy” At line 654 of NOP when put that he had lied that there was no back up copy: “No I do not agree. My backup copies have been taken away” In re-examination on this he said (at line 734 NOP): “Because these documents are proposals which were planned at the beginning of the year and not been submitted and that is why there were no other copies except those stored in the laptop and hard files.”8 The 1st defendant had first denied having any back up copy and in the next
breath said it was taken away. Lastly tries to explain this discrepancy by saying that it was only at proposal stage hence no back up. The Court finds it hard to believe that if this a major project for an important customer as the defendants make it up to be, that there was no back up copy made or that13 the 2nd defendant being in charge would not have hard copies to look at in
respect of consultations and to monitor the progress of the development of such an important project paper by his subordinate, the plaintiff. Police Report At lines 686 – 688 NOP: PC: Refer to the police report at Exh. ABP-1, did you mention anything about Mabel Yin deleting or stealing company documents? Do you agree? DW1: Yes22 The 1st defendant appears to confirm that he had lodged a report on the
deletion and taking documents away when in fact the police report is only limited to abuse of power as elaborated before. In his re-examination, at25 lines 751 – 752 NOP, the 2nd defendant tries to justify the omission by
saying that the police report was not drafted by him but by Human1 Resources Department. As the Area Manager of the 1st defendant and its
key staff in Sabah, he could have supplemented or made a report himself if3 he believed as he reported to the 1st defendant that the plaintiff had taken
documents.5 This is also highlights the inconsistency of the 1st defendant because as
6 stated by the 2nd defendant in his witness statement Ex “D1” at paragraph
7 22A, that the 1st defendant had considered it so important as to cause the
8 immediate publication of the 2nd Notice for their return. The Court finds it
10 was of such importance to necessitate the publication of the 2nd Notice.
11 unless that the 1st defendant itself and the 2nd defendant were in doubt that
20 Court between the plaintiff and the 2nd defendant and further evinced from
21 their respective evidence, in the face of the unreliability of the 2nd defendant
22 as a witness and inconsistency of the 1st defendant, the Court would believe
28 left office on the 8th March 2008 and as such anything could have happened
in her office after she left. Nobody saw the plaintiff take away the hard2 copies of the documents from the 1st defendant‟s premises or deletion of the
files from her laptop computer. The Court will find that there is no evidence at all to show that the plaintiff5 had taken away from the 1st defendant “whatsoever documents which carry
the letter head & logo of company (Sabarice Sdn Bhd) that belong to the company” that she should not have taken. Nor did she misuse any8 documents of the 1st defendant that are rightfully in her possession.
(ii) What attempts to retrieve “whatsoever documents which carry the letter head & logo of company (Sabarice Sdn Bhd) that belong to the company” The plaintiff by paragraphs 22A and 23A of her witness statement (at page 8 of Ex “P1”) stated that no attempt was ever made to contact her by the13 defendants regarding the matters raised in the 2nd Notice.
14 The 2nd defendant (DW1) confirmed that he did not call her (from lines 586
18 the defence which stated that the 1st defendant:
“had on several occasion requested the Plaintiff to return all documents20 which carry the 1st Defendant‟s letter head and logo.”
21 This pleading wrongly conveys the impression that the 1st defendant had
2 manner that they have resorted to publication of the 2nd Notice in
3 conjunction with the 1st Notice.
8 the libel. (See further Gatley on Libel and Slander, 11th edn. at p. 1002 para
29.5 and also S. Pakianathan v. Jenni Ibrahim & Another Case [1988] 110 CLJ 233 (Rep); [1988] 1 CLJ 771.)
11 The Court has found that the 2nd Notice is defamatory of the plaintiff and the
evidence and findings show that she has not taken the hard copies of the13 deleted documents and the 1st defendant had failed to justify the natural and
14 ordinary meaning of the words nor the imputations of the 2nd Notice and the
17 When we consider the evidence of the 2nd defendant DW1 and the
allegation in paragraph 4 (iii) of the defence the Court senses by looking at19 the size of and the positioning of the 1st and 2nd Notices being published that
there was an ulterior agenda to it other than for the actual purpose of notifying the plaintiff. It was in the mind of the person who instigated the22 administration of the 1st defendant in Kuala Lumpur to publish the 1st and 2nd
Notices and the way it was done in Sabah to disparage the plaintiff and to lower her in the estimation of right-thinking members of society generally. The Court does accept that it is normal everyday practice by the prevalent notices being published in the newspapers for a party (even the police) seeking to contact a missing party or for another party‟s assistance to request the intended recipient to contact the seeker through the provided contact numbers without descending into the full particulars of the subject matter or reason for the need to contact the recipient which can be read by the ordinary person as an accusation and defamatory of the intended recipient. In respect of the defendants‟ publication by identifying the subject matter of the advertisement for the “return whatsoever documents which carry the letter head & logo of company (Sabarice Sdn Bhd) that belong to the8 company within SEVEN (7) working days” which has been found to be
9 untrue and defamatory, in the publication of the 2nd Notice, the 1st defendant
11 addition the sizes of the 1st and 2nd Notices published transcends beyond
the size of a normal publication of such nature that we commonly read in the newspapers every day.14 According to the evidence adduced, the 2nd Notice was published after the
15 2nd defendant had lodged on behalf of the 1st defendant the police report
17 more justification for the 2nd Notice by casting aspersions upon the plaintiff
that she has been the subject of a police report. However, when we compare the contents of this police report which alleged that the plaintiff had apparently abused her influence over a printer and the contents of the 2nd Notice on taking away documents, there is absolutely no connection to each other and they are independent accusations. This evidence of the police report is irrelevant here according to Richard Malanjum J. (as he then was) in the Tun Datuk Patinggi Haji Abdul-Rahman Ya'kub case (supra), as his lordship viewed that general charges, general conclusions or irrelevant specific instances of wrongdoing are removed from the consideration in finding whether the defendants have succeeded in establishing the defence of justification. The Court will find from the review of the evidence before that the2 publication of the 2nd Notice not only unjustified but is not justifiable and the
defence of justification fails. (c) Qualified Privilege (i) A Defence?6 The authorities cited before for the 1st Notice on qualified privilege states
7 explicitly that for qualified privilege to attach the publication of the 2nd Notice must
1917) AC 309 Lord Atkinson elaborated at page 334 that : “[A] privileged occasion is, in reference to qualified privileged, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made had a corresponding interest or duty to receive it. This reciprocity is essential.”;16 Chang Ming Tat FJ in John Lee’s case (supra), had found this reciprocity in
respect of the defamatory publication of the defendants which was copied to the employee union of the plaintiff who had sought the union‟s help in the dispute to19 give rise to the common interest or legal duty to receive. The 1st Notice has been
found above to fall within this category of common interest for the public to receive. In respect of an example of the communication arising from a “private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned” (as expounded by Parke B. in Toogood v Spyring (1834) 125 CM & R 181) would be the case of Barr v Musselburgh 1912 S.C. 174, where a
blacklist of persons unworthy of credit was circulated by a local trade association amongst its members was held to be protected by qualified privilege as28 disseminated for legitimate self defence of their interests. The 1st Notice also
falls within this category being for the legitimate conduct and to protect the affairs2 and interests of the 1st defendant in the termination of employer relationship with
the plaintiff. In respect of volunteering information about the behavior of a servant before5 there is inquiry, the facts in Watt v Longsdon (1930) 1 K. B.130, 1929 All ER Rep
284; is a good example of when a social duty will be created for qualified privilege to protect. A foreign manager of a company sent a letter accusing the plaintiff who was managing director in charge of the company‟s overseas business of gross charges of immorality, drunkenness and dishonesty was sent to the defendant (liquidator/director of the company). This letter was shown to the plaintiff‟s chairman and to the plaintiff‟s wife. The allegations were found to be unfounded. It was held that the sender and recipients being the defendant and the chairman were protected by qualified privilege but the publication by the defendant to the plaintiff‟s wife on the other hand was not protected by privilege.15 In Watt’s case (supra) Greer LJ said at page 152:
“It may be that the interest of the person receiving the communication is of such a character as by its very nature to create a social duty in another under the circumstances to make the communication that he does in fact make.”19 The Court will find that the 2nd Notice may be addressed to the
plaintiff, it has been also published to the world at large even though it is for the21 sole purpose of notifying the plaintiff to return the 1st defendant‟s documents
within 7 working days. In the Court‟s view it would have been appropriately effected by the normal letter of demand and noting as stated before the defendants‟ reason as to urgency or the truth of the taking of the documents alleged has been discredited earlier on in this judgment. The resort to newspaper publication was also an injurious mode that was unnecessary under the27 circumstances (see Brown v Croome (1817) 2 Stark. 297, 171 E.R. 652; and
1 paragraphs 540 and 555 Gatley on Libel and Slander 8th Edition) and reeks of
5 concerned in Stuart v Bell (1891) 2 QB 341 Lindley L.J. suggested this guide:
“Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communication?” When we view these authorities for setting up qualified privilege in relation to the10 2nd Notice, the only party that would under the circumstances have an interest in
11 receiving the 2nd Notice is the plaintiff herself alone, in respect of the rest of the
15 and the 1st defendant and the intended purpose of the defendants to cast the
16 probity of the plaintiff in bad light as a former employee of the 1st defendant. This
17 gossip or curiosity value affords no defence to the 1st defendant for the
19 paragraphs 452 and 535 Gatley on Libel and Slander 8th Edition).
20 Like the plaintiff‟s wife in Watt’s case (supra) who may be interested to know the
23 will not establish qualified privilege to protect the publication of the 2nd Notice to
24 the world at large by the 1st defendant (see further Botterill v Whytehead (1879)
25 41 L.T. 588 and R v Lancashire C.C. Police Authority, ex p. Hook (1980) Q.B.
603 at 615). The Court will find that the defence of qualified privilege will not attach to the28 publication of the 2nd Notice and this defence also fails for the 2nd Notice.
(3) Malicious Falsehood: Police Report (a) Plaintiff‟s claim3 Under this head the plaintiff‟s 3rd claim is for damages for malicious falsehood
contained in a police report under reference number TD/RPT/3605/2008 (police5 report) lodged by the 1st and 2nd defendants on 17.03.2008 at the police station
at Tawau („the malicious falsehood‟). In the police report the defendants wrote inter-alia the following words: “Seorang pekerja iaitu Mabel Yin Yoke Main K/P: 691024-01-6142 telah ditamatkan perkhidmatannya atas dasar persetujuan bersama atas sebab tinkahlaku dan sikap yang tidak boleh diterima oleh syarikat. Semasa beliau masih berada di syarikat ini, beliau telah menyalahgunakan kuasa dengan mengarahkan dan mempengaruhi sebuah syarikat pengiklanan untuk mencetak risalah bagi tujuan kempen parti politik. Perbuatan ini ternyata bercanggah dengan peraturan syarikat dan syarikat tidak terlibat dengan kegiatan sebegini. Sekian laporan saya.” (The words complained of in paragraph 15 of the statement of claim are translated as follows:- “A worker i.e. Mabel Yin Yoke Main I.C. No. 691024-01-6142, based on a mutual understanding, her service was terminated because her behavior and character which is not acceptable by the company. While she was in the company, she has misused her power by directing and instructing a media company to print pamphlets for a politic party campaign purposes. This act of her clearly shows a contravention with the company‟s rules and regulations which the company is not involved with such activities. This is my report.”) The plaintiff denies abusing her power or did not instruct or in any manner influence any advertising company or agency into printing any magazine, periodic or flyers whatsoever for political campaign words complained of were false in that the plaintiff the words in the police report complained of were published maliciously as particularised:- Particulars of malice4 a. The 1st defendant wanted to have an excuse to terminate the plaintiff‟s
employment.6 b. The 2nd defendant personally wanted to have an excuse to terminate the
plaintiff‟s employment as he perceived the plaintiff‟s capability as a threat to his position in the company. In consequences of the malicious falsehood, the plaintiff‟s reputation has been seriously damaged and she has suffered considerable hurt, distress and embarrassment. (b) Defendants‟ defence The defendants‟ defence is one of qualified privilege and protection under Section 12 of the Defamation Act 1957 (Act 286) (paragraph 12 of defence). During the trial the defendants sought to justify the police report with the evidence of DW3 Tham Vui Hen who was to have printed the election banners the subject matter of the abuse of powers at the plaintiff‟s behest. (c) What is Malicious Falsehood A claim for malicious falsehood is distinct claim from defamation which concerns an action for injury to reputation. In a malicious falsehood claim (1) the plaintiff must prove that the words are false (2) that they were published maliciously and (3) unless covered by the statutory exception, that they caused him special damage. (From Halsbury‟s Laws of Malaysia (2004 Reissue) Volume 2 in24 paragraph 30.261 at page 566.) (See also Ratcliffe v Evans (1892) 2 Q. B. 524.)
The statutory exemption will apply and dispense with prove of special damage where the words on which the action is founded are calculated to cause pecuniary damage to the plaintiff are published in writing or other permanent form or cause pecuniary damage in respect to his office, profession and business when made. (From Halsbury‟s Laws of Malaysia (2004 Reissue) Volume 2 in paragraph 30.272 at page 575.) Substantial damages will only be recoverable if there is sufficient proof of a probable pecuniary loss. (d) Findings of the Court The Court on review of DW3‟s evidence finds him an evasive and unreliable witness and the following facts transpire:8 DW3 is beholden to the 2nd defendant (DW1) for work from the 1st
defendant and personal relationship (NOP lines 825 to 875 at pages 28 and 29 and line 976 to 978 at page 32); The election banners only costing RM180.00 was in return for a12 favour done for the 1st defendant caused by the fault of DW3 (NOP
lines 923 to 963 at pages 31 to 32); It is extraordinary for DW3 to do this election banner works not in the15 usual course of business of the 1st Defendant without reference to
DW1 and merely from the instruction of the plaintiff (NOP line 969 to 975 at page 32) who would only had been dealing with him recently being newly employed then and that it was normally DW1 who instructed DW3 with the plaintiff doing the following up ((NOP line 863 at page 29); The defendants had not shown or questioned the plaintiff on the accusation of abuse of power by having the election banners printed which has been denied by the plaintiff; No evidence has been led by the defendants that the act of the25 plaintiff contravenes the 1st defendant‟s rules and regulations; and
The police report was made simultaneously with the publication of2 the 1st and 2nd Notices of which the Court has found that the 2nd
Notice is defamatory of the plaintiff; and Nothing has flowed or action taken against the plaintiff from the lodging of the police report. From these findings it appears to the Court that the accusation leveled against the plaintiff in the police report based on the evidence of DW3 on a balance of probability must have been false. (e) Defences (i) Section 12 of Defamation Act 1957 The Court will find from a reading of Section 12 of the Defamation Act 1957 is meant to cover unincorporated associations and not incorporated companies and it has no bearing to set up any defence from the making of a police report against defamation or malicious falsehoods or for that matter the defamation15 in the 1st and 2nd Notices published in newspapers by the defendants.
(ii) Qualified Privilege Qualified privilege may be a defence if the claim for lodging the police report is for defamation. Since the plaintiff‟s case is framed as mailicious falsehood it is not a defence to such a claim. (iii) Not False The plaintiff must prove that the words published in the police report by the defendants are false. Based on the Court‟s above findings it would appear that the accusation against the plaintiff is false and also from the possibility that every breach of company regulations may not necessarily be a crime. From the evidence before the Court, the overall beneficiary of the plaintiff‟s26 act appears to be the 1st defendant rather than the plaintiff.
The defendants have not raised evidence sufficient to rebut the Court‟s findings that the police report was false. The evidence of DW3 is not reliable and credible because of his ongoing business relationship with the defendants and other findings as elaborated before. (iv) No Malice The plaintiff must prove actual malice to support a malicious falsehood claim. Several inaccuracies may constitute evidence of malice. Publication knowing it to be untrue is evidence of malice distinct from if the defendant can show that he was being honest but wrong or careless but believing the words were true. (Halsbury‟s Laws of Malaysia (2004 Reissue) Volume 2 in paragraph 30.268 at page 571.) The bulk of the case law on malice are from actions on slander of title or goods. The evidence unfolding before the Court shows a diligent plaintiff who had14 irked the 2nd defendant causing the bad blood between them both leading to
15 the orchestrating by the 2nd defendant of the termination of the plaintiff‟s
16 employment with the 1st defendant.
18 claims for wrongful termination, the 2nd defendant embarked on finding
evidence to besmear her. Without even asking her about the matter or to give her a chance to explain, the defendants lodged the police report that accused: “she has misused her power by directing and instructing a media company to print pamphlets for a politic party campaign purposes. This act of her clearly shows a contravention with the company‟s rules and regulations which the company is not involved with such activities.” We have to remember DW3‟s own words (at NOP line 997 at page 33) in the way he was asked, if that “instruction” actually happened: “Mabel asked me whether we can sponsor Sabarice and I said yes.” shows there was no form of directive from the plaintiff and the instruction as to what to do appears to have only followed after DW3 agreed. The wording and the way the police report had been previously prepared at the defendants‟ office for lodging does not reflect what happened. In terms of whether an offence had been committed by the plaintiff, the Court reiterates that not every breach of a company‟s rules and regulation through misuse of powers though it may be a ground for dismissal is a crime.8 All this adds up to show the prejudice and malice that the 2nd defendant
9 within the 1st defendant bore to the plaintiff.
10 Lastly the way the 1st and 2nd Notices have been published of the plaintiff in
11 the two newspapers and the defamation in the 2nd Notice are clear evidence
15 (v) Publication by 2nd defendant for 1st defendant
16 An employee in the case of the 2nd defendant will make the 1st defendant
18 employment (see Citizens’ Life Co. v Brown (1904) AC 423).
Even though the text of the police report may have been prepared by the 1st defendant‟s Kuala Lumpur office, the Court is inclined to conclude that the accusation arose from the exchange between the DWI and DW3 but22 nonetheless the 1st defendant as employer remains liable even if they may
23 not have been aware of the 2nd defendant‟s conduct according to the Citizens’
27 false by the plaintiff. The 1st defendant through the 2nd defendant had been
actuated by express malice in making the police report of a breach of company | ||
regulation in trying to paint a bad picture of the plaintiff in justifying their | ||
termination of the employment of the plaintiff. Even if the termination was by way | ||
of one month‟s notice, it is now commonly accepted that there must be a reason | ||
for serving the notice of termination then through the whims and fancy of | ||
management. | ||
(4) | nd defendant’s defence | |
The plaintiff‟s case against the 2nd defendant is in respect of the publication of the | ||
Notices and the lodging of the police report. The 2nd defendant had pleaded in | ||
paragraphs 3 and 13 of the defence that he was acting as an employee of the 1st | ||
defendant in respect of the publications and the lodging of the police report. | ||
There is no evidential contradiction of this fact or that he was not so authorized to | ||
act on behalf of the 1st defendant in these matters. | ||
The Court finds that the plaintiff has proven that the malice of the 2nd defendant | ||
towards her had been instrumental to the 1st defendant taking action against her | ||
but he was not the author of the 2nd Notice The 2nd defendant did make and | ||
lodge the police report though on behalf of the 1st defendant. The plaintiff‟s | ||
claims against the 2nd defendant in respect of the two Notices is dismissed. The | ||
Court finds the 2nd defendant liable for malicious falsehood in the publication of | ||
the police report. | ||
(5) | Considerations affecting the Award of damages for the libel in the 2nd Notice | |
The Court will now consider the law regarding award of damages in respect of | ||
the libel from the 2nd Notice and finds that the basis of the award of damages in a | ||
defamation action is to (1) console for the personal distress and hurt caused to | ||
the plaintiff‟s feelings; (2) reparation for the harm done to his personal and (if | ||
relevant business) reputation; and vindication of his reputation (Halsbury‟s Laws | ||
Of Malaysia (2004 Reissue) Volume 2 in paragraph 30.235 at page 548.) |
15 Abdul Rahman Ya'kub case (supra) at page 416 said:
“It is a settled law that in a libel action, the general rule is that damages are assessed on a compensatory basis. However, in certain circumstances, exemplary damages, or punitive damages as they are otherwise described may be awarded. Compensatory damages may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantage which result, or may be thought likely to result, from the wrong which has been done. They may also include the natural injury to his feelings - the natural grief and distress which he may have felt at having been spoken of in defamatory terms, and if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self-confidence, these are proper elements to be taken into account in a case where the damages are at large.” In the assessment of damages to vindicate and console the injury to a person‟s4 reputation, James Foong J. (as he then was) in Le Mercier’s case (supra) for the
defamatory publication in the News Straits Times he had awarded RM100,000.00 based on circumstances of the case and had taken the following factors into consideration (from page 598 (d) as enunciated in Datuk Harris Bin Mohd. Salleh8 v Abdul Jalil Bin Ahmad (1984) 1 MLJ 97; (1983) CLJ 521 (Rep):
“(1) the position and standing of the plaintiffs; (2) the nature of the libel, (3) the mode and extent of the publication, (4) the conduct of the plaintiffs; (5) the conduct of the defendants from the time of the libel down to the very moment of the verdict, and (6) the absence or refusal of any retraction or apology,”16 In this regard, Gatley on Libel and Slander, 11th edn, also states that factors that
can be taken into account when assessing damages are the conduct of the claimant, his position and standing, the nature of the libel, the mode and extent of the publication, the absence or refusal of any retraction or apology and the conduct of the defendant from the time the libel was published down to the verdict. The stand taken by the defendants in this case is created by their wrong impression that the plaintiff‟s employment had been correctly terminated when it was not and that this had affected the defendants‟ conduct of their defence when in fact the plaintiff was truly the aggrieved party all these while. Not only was there no apology, the conduct of the defence was to run her character down further with the unsuccessful plea of justification and according to Halsbury‟s Laws of Malaysia (2004 Reissue) in paragraphs 30.239, 30.240, 30.241 and 30.242 from page 552 all these are relevant factors for increasing or aggravating damages. In Institute of Commercial Management United Kingdom v The New Straits Times Press (Malaysia) Bhd. (1993) 2 CLJ 365 the Plaintiff was defamed as an institution of higher education participating in the operation of a diploma mill racket and of selling its bogus qualifications for a fee. In awarding RM100,000.00 damages, Lim Beng Choon J stated:9 “But the Court in assessing damages is required inter alia to examine the
conduct of the defendants from the time when the libel was published down to11 the very moment of the verdict - see Praed v. Graham [1889] 24 QBD 53 @
55. That being the case, the Court has the right to take into consideration the conduct of the defendants in refusing to publish any retraction and tendering an apology after having been apprised of the groundlessness of the imputations made in the said article and instead went ahead strenuously to oppose the action of the plaintiffs, which conduct clearly shows that the defendants have no desire up to today to mitigate the damages - see per Lord18 Reid in Morgan v. Odhams Press Ltd. [1971] 1 WLR 1239 @ 1247.”
19 In Irene Fernandez v Utusan Melayu (M) Sdn Bhd and Anor (2008) 2 CLJ 814,
25 In this case, by reason of the libel in the 2nd Notice and by reference back to it,
26 the 1st Notice which was not defamatory per se and covered by qualified privilege
28 2nd Notice that the plaintiff was dismissed from employment by virtue of her acts
1 of wrongly retaining or stealing the 1st defendant‟s documents when in fact her
4 Notice (as well as that for the 1st Notice) published in the two newspapers are of
such an enormous size as exceeds the normal notices that we commonly see published in newspapers for similar purposes. These are factors of express malice that can be used to aggravate the damages that would be awarded in8 respect of the 2nd Notice which created the defamation against the plaintiff. (See
Halsbury‟s Laws of Malaysia (2004 Reissue) in paragraphs 30.237, 30.238, and 30.239, 30 from page 550) In the case of Utusan Melayu (Malaysia) Bhd & Ors V. Tjanting Handicraft Sdn Bhd & Anor (2005) 1 CLJ 71 the damages awarded for a defamatory newspaper13 article on the unsightly batik of the 2nd respondent published by the appellant was
reduced from the sum of RM700,000 as general damages for libel to RM100,000 and the aggravated damages of RM300,000 reduced to RM50,000. Nik Hashim JCA on the basis for an award for aggravated damages said: “With regard to the award of aggravated damages, we agree with the learned judge that there is indeed a case for the award. The finding of fact that the appellants were motivated by actual malice in publishing the article complained of warrants the making of an award of aggravated damages. However, the amount of aggravated damages must be a reasonable one. In our judgment, a reasonable amount should not be as much as the mother award.”23 The effect of the libel in the 2nd Notice was to taint her as a dishonourable,
dishonest and untrustworthy employee and person to the whole of Tawau in25 particular and Sabah through publication of the 2nd Notice in the Borneo Post and
the Morning Post newspapers. At the time of publication her employment had been terminated and this effectively renders the plaintiff‟s chances of getting further employment in Sabah thereafter as difficult if not impossible with such an1 unfavourable public testimonial from an institution of the size of the 1st defendant,
a rice repackaging and trading business with branches all over Sabah. Learned Counsel for the defendants in her submission had tried to lessen the impact of the plaintiff‟s loss by relying on the plaintiff‟s resourcefulness in being able to set up her own advertising and promotion company notwithstanding the defamation. This evidence does not detract from the fact that the plaintiff has been defamed and could no longer find employment which has to be vindicated and compensated for by general damages. This evidence of income by self employment may be relevant to meet a claim for special damages from loss of salary during the period after the defamation. The only remaining consideration is the submission of learned counsel for the defendants on the delay in taking action for defamation by the plaintiff. The plaintiff had tried to explain this by saying that she had relied on lodging her claim with the Labour Department. The Court views this as a weak excuse because it is clear from her appearance in Court that she is an intelligent person and would know that the claim she had lodged before the Labour Department is only in respect of unfair dismissal which would not cover the defamation (See NOP line 221 at page 8). She only decided to take action for defamation in January 2009 after her dismissal in March 2008 was resolved by the Agreement Memorandum20 dated 28th October 2008 based on her prompt representation to the Labour
21 Department on 15th April 2008.
“The whole of the conduct of the plaintiff, before and after the action is brought | ||
and in court during the trial may be taken into account for purposes of | ||
determining the quantum of damages to be awarded” | ||
are derived from case law on provocation from the plaintiff. | ||
Recalling what Richard Malanjum J (as he then was) said in the case of Tun | ||
Datuk Patinggi Haji Abdul Rahman Ya'kub (supra) about the purpose of | ||
compensatory damages being for “….natural injury to his feelings - the natural | ||
grief and distress which he may have felt at having been spoken of in defamatory | ||
terms,…” | ||
the Court is of the view that the evidence of delay in taking action does have an | ||
impact on the degree of injury to feelings felt by the plaintiff. This conduct of the | ||
plaintiff militates against the damages to be awarded and can be taken into | ||
account in mitigation of damages to be awarded. | ||
(6) | Considerations affecting the Award of damages for the malicious falsehood | |
In order to support a claim for malicious damage, i.e. to start an action there is no | ||
necessity to plead special damages if statutorily exempted. When a plaintiff is | ||
successful, however in order for the Court to compensate a plaintiff for his loss | ||
from the falsehood and order substantial damages, it is still necessary for the | ||
plaintiff to plead what his loss is especially in the form of special damages. The | ||
plaintiff here has only made a general plea for damages without any special | ||
damages pleaded. | ||
The other consideration here is the extent of the publication of the police report is | ||
another consideration to be taken into account in assessing damages for | ||
malicious falsehood. Counsel for the defendants had submitted that the | ||
publication was not extensive and limited in nature that is to the police and staff | ||
of the 1st defendant which is not disputed. |
1 It is noted that in Utusan Melayu (Malaysia) Bhd’s case (supra) the Court of
Appeal reduced the damages awarded for slander of goods (malicious falsehood) in an article published in the newspaper by the Appellant of the 1st respondent‟s batik products from RM300,000 to RM100,000. Nik Hashim JCA had cited with approval what Lord Bridge of Harwish in Charleston v. News Group Newspapers Ltd [1995] 2 AC 65 HL, at p. 70 said:“It is often a debatable question which the jury must resolve whether the | ||
antidote is effective to neutralize the bane and in determining this question | ||
the jury may certainly consider the mode of publication and the relative | ||
prominence given to different parts of it. (emphasis added)” | ||
The Court will have to take cognizance of the fact that there was limited | ||
publication of the malicious falsehood on the abuse of power and that the police | ||
report did not go public as to enlarge the damage caused to the plaintiff by it. | ||
(7) | Judgement: Award | |
The Court would allow the plaintiff‟s claim for libel under the 2nd Notice against | ||
the 1st defendant and would have awarded the sum of RM150,000.00 as | ||
compensatory damages and RM50,000.00 as aggravated damages based on the | ||
facts of this case taking into consideration of the aggravating factors. The Court | ||
agrees with learned Counsel for the defendants that the dilatoriness of the | ||
plaintiff in only taking action ten months after publication of the 2nd Notice | ||
presupposes that she was not unduly stinged by the publication but more by her | ||
loss of employment. This delay is conduct of the plaintiff as claimant that can be | ||
taken into account to reduce the award of compensatory damages by this Court | ||
to the sum of RM100,000.00 and retaining RM50,000.00 as aggravated damages | ||
to the plaintiff . |
4 The Court will dismiss the plaintiff‟s action for libel under the 1st Notice against
5 the 1st defendant.
6 The Court will dismiss the plaintiff‟s action for libel under the 1st Notice and 2nd
7 Notice as against the 2nd defendant.
9 two thirds (2/3rd) of the costs of this action against the 1st defendant but in view of
10 the role played by the 2nd defendant, the Court will not award any costs in his
13 (i) against the 1st defendant in respect of the 2nd Notice: General damages in
the sum of RM100,000 and Aggravated damages in the sum of RM50,000 with interest at the rate of 8% per annum from the date of this judgment till date of realization; (ii) against the defendants in respect of the Malicious falsehood: General damages in the sum of RM10,000 with interest at the rate of 8% per annum from the date of this judgment till date of realization;20 (iii) Two Thirds (2/3rd) of the costs of the action to be taxed; and
21 (iv) No costs is awarded to the 2nd defendant.
23 DATED THIS DAY: 3RD MARCH 2011
SGD. Y.A. JOHN KO WAI SENG JUDICIAL COMMISSIONER TAWAU HIGH COURT COUNSEL: For the Plaintiff: Ms. Voo Vun Han standing in for Mr. Liew Hon Min Messrs Liew Hon Min & Co Advocates and Solicitors11 Lot 56, 1st Floor, Block D, Bandaran Baru
91000 Tawau, Sabah. For the Defendants: Ms. Monica Chin Sam Moi standing in for Ms. Liew Ting Ting Messrs Lam Teo Sebom & Tan Advocates and Solicitors19 Lot No. 30, 2nd & 3rd Floor,
Jalan Pantai, 88000 Kota Kinabalu, Sabah. [Context] [Hide Context]
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