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Soh Huang Siah Vs Datuk Ooi Han Eng, D'Touch Promotion Sdn Bhd [2011] MYSSHC 169 (8 April 2011)

MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING

5 SUIT NO: 22-164-2008-II
BETWEEN
SOH HUANG SIAH .... PLAINTIFF AND
10 DATUK OOI HAN ENG &
D’TOUCH PROMOTION SDN BHD .... DEFENDANTS

JUDGMENT

Introduction

This is a defamation suit between two beauty contest organizers. It stems
15 from competing claims over the use of words used in beauty contest titles.
The 1st defendant had alleged in letter addressed to YB Dato Sri Wong Soon Koh, Minister for Urban Development & Tourism and copied to Chief Minister’s Office and YB Datuk Robert Lau that the plaintiff had infringed his beauty pageant titles and that of others as well. The plaintiff
20 took strong exception to this accusation and filed the instant suit upon the refusal of the 1st defendant to apologize.

The Plaintiff’s case

The plaintiff is apparently a well known Sarawak based beauty contest organizer. There is no evidence to the contrary. He owns an event
25 management company known as Alaric Productions Company which started operation in 1983. The plaintiff claimed to have organized numerous beauty pageants since 1990. It included Miss Tourism Pageant and Miss Tourism Intercontinental. He also told the court that he co- organized Miss Tourism International in 1994 with the defendants. He
said that the franchise holder of Miss Tourism International was an American citizen by the name of Charlie See. From the evidence of the 1st defendant, Mr. Charlie See appears to be a well known figure in the beauty pageant industry. The plaintiff said that the 1st defendant told him
5 that Mr. See had given the 1st defendant the right to organize a contest for
the Miss Tourism International title. The plaintiff said that he had to co- organize the contest in Sarawak because the 1st defendant was unable to obtain sufficient sponsorship. Following the success of this pageant, the plaintiff organized the Miss Tourism Intercontinental and Miss Tourism
10 Pageant. The plaintiff then applied to register the trademarks for Miss Tourism Intercontinental and Miss Tourism Pageant with the Trade Marks Registry. He applied under Class 16 and Class 41. Under the Trade Marks Regulations 1997, Class 16 is for use of the trademark on stationery whereas Class 41 is for the use of the trademark in the
15 entertainment services which include organizing beauty pageants. On 29th
August 2007, the plaintiff received four Notices of Registration for the said two titles under Class 16 and Class 41. He was informed by the Trademark Registry officers that the Notices of Registration would grant him provisional protection pending registration. The plaintiff proceeded
20 to make arrangements to organize the Miss Tourism Pageant beauty contest in Sibu on 7th December 2007. However, in the interim, some events occurred that led to this suit. The defendants apparently were not pleased with the name of the titles that were used by the plaintiff for his beauty contests. The 1st defendant had also submitted two applications for
25 trade mark registration, i.e. Miss Malaysia Tourism on 1st August 2006
and Miss Tourism International on 28th June 2006. On 26th October 2007, the Urban Development & Tourism Minister (Dato Sri Wong Soon Koh) wrote a letter to the plaintiff. In that letter, the Minister referred to a letter that he had received from the 1st defendant complaining about
infringement of defendant’s trademarks by the plaintiff. This letter is the basis of the defamation action by the plaintiff. Subsequently, the 1st defendant instituted two actions in the High Court in Malaya to stop the plaintiff from proceeding with his beauty pageants on the ground of
5 infringement of trademark. However, the 1st defendant’s suits were
dismissed. Appeals to the Court of Appeal and Federal Court were not successful either.

The Defendants case

The 1st defendant is also a well known player in the beauty pageant
10 industry, albeit at the national level. He is the managing director of the 2nd defendant which is his company. He has organized numerous international and national level beauty pageants. He said that he is the owner of a number of beauty pageant titles including “Miss Malaysia Tourism” and “Miss Tourism International”. He said that he obtained
15 trademark registration under Class 41 for both these titles. He said that for the Miss Malaysia Tourism Pageant, the winner would be crowned with the title Miss Malaysia Tourism and she would represent Malaysia in Miss Tourism International Pageant World Final event. He said that he met the plaintiff at the inaugural Miss Tourism International Pageant
20 which was held in Kuching in 1994. The 1st defendant said he had
appointed the plaintiff as the coordinator for that event. He said that the plaintiff’s first international event was the Miss Tourism Intercontinental
2003. He said that the plaintiff had infringed the trademark of someone else by so doing. During the trial, he produced one Mr. Jasol Cabral of
25 the Dominican Republic who alleged that he owned a title known as “Miss Turismo International”. The 1st defendant said that the plaintiff later changed the name of Miss Tourism Intercontinental to Miss Tourism Pageant and called the winner of this title Miss Tourism Malaysia. A
photograph in The Star newspaper of the winner wearing a Miss Tourism Malaysia sash was exhibited in the bundle of documents. The 1st defendant said that this resulted in the plaintiff infringing defendants’ Miss Malaysia Tourism title. He also said that the Miss Tourism Pageant
5 infringed his Miss International Tourism title. He urged the plaintiff to cease doing so but discovered through The Star newspaper that the plaintiff was organizing Miss Tourism Pageant 2007 in Sibu. He then decided to complain to two prominent individuals in Sarawak, i.e. Dato Sri Wong Soon Koh and the late Datuk Robert Lau who was the Co-
10 Chairman of the Organizing Committee. The 1st defendant conceded that
the legal proceedings that he instituted against the plaintiff subsequently failed. He said that he wrote the said letter because the plaintiff had created confusion because of the name that was chosen for the title of the beauty contests that he had organized. It allegedly caused confusion
15 because the defendants owned the Miss Malaysia Tourism and Miss Tourism International titles. He said the event, i.e. the Miss Tourism Pageant that the plaintiff had organized “affected people at large” and the two individuals to whom he addressed the letter had a duty to be informed of the confusion created by the plaintiff.
20 Issues
The 1st defendant has not denied writing the said letter to Dato Sri Wong Soon Koh and copying it to the late Datuk Robert Lau. In the premises, the element of publication has been proved. For good measure, the plaintiff called Dato Sri Wong Soon Koh to the witness stand to state that
25 he received the said letter from the 1st defendant. At the conclusion of the
case, counsel for defendants submitted that the said letter was not defamatory of the plaintiff. In the event that the said letter is held to be defamatory, counsel for defendant submitted in the alternative that the
defence of qualified privilege and fair comment is applicable on the facts of this case. He also submitted that the plaintiff failed to prove express
malice and failed to give particulars of malice as well in his Reply.

Whether the said letter is defamatory of the plaintiff?

5 Counsel for plaintiff submitted that the 1st defendant had accused the plaintiff of infringing the defendants’ trademark and that of others. Infringement of a trademark is a civil wrong. He said that the plaintiff’s reputation and character has been damaged as a result. Counsel for defendants, on other hand submitted that the said letter is not defamatory
10 if read as a whole against the background of the relevant events. For ease of reference, I shall reproduce the entire letter below:

YB Dato’ Sri Wong Soon Koh,

Menteri Pembangunan Bandar dan Pelancongan

15 Tingkat 6, Bangunan Baitulmakmur Petra Jaya, 93050 Kuching, Sarawak Tel 082-442266 Fax: 082-313628

Re: Infringement of Miss Tourism International Title by Alaric Production

20

Dear YB Dato’ Sri Wong,

Greetings from Kuala Lumpur!

25 I believe Dato’ Sri would have heard about me, and also met me in Kuala Lumpur at one of the Malaysia Book of Records’ breaking activities. Coincidentally, I am also the founder and Managing Director of the Malaysia Book of Records.
30 I read in the Star newspaper regarding Tourism Sarawak’s involvement in the organising of the Miss Tourism Pageant Final in Sibu, in co-operation with Mr Alaric Soh of Alaric’s Production and I thought perhaps YB Dato’ Sri should be made aware of the situation.
35 Miss Tourism International World Final was started by me in 1994 and was held in Kuching, Sarawak, the same year. It was co-ordinated by Alaric Soh then as an event co-ordinator appointed by me.

The Miss Tourism International World Final has since been held in

40 Malaysia for Ten (10) consecutive years, in which the last world final held

in Malaysia was on 31st December, 2005 and the 11th MTI World Final was held in Hayuan, Guangdong Province, China on 11th November,

5 The Miss Tourism International is our very home-grown title and is now franchised to more than 60 countries around the world (web site www.misstourism.com.my). Each year, the event has been supported by every Tourism Minister in office, namely Tan Sri Sabarruddin Chik, Tan Sri Abdul Kadir Sheikh Fadzir, Datuk Michael Toyad and now Datuk Seri
10 Tengku Adnan.

I believe the whole country is aware of this Miss Tourism International Title that belongs to me and I have, through a letter, informed Alaric Soh of this infringement 2 years ago.

15

Since the situation is getting out of hand, we have no choice but to seek

legal action for this infringement of my patent right and title. We will also be proceeding with legal action against Alaric Soh and his company for the infringement by passing off by the use of the Miss Malaysia Tourism

20 Title and Miss Tourism International Title which belong to me.

We believe most parties and sponsors involved in the Miss Tourism Pageant in Sarawak are not fully aware of this infringement and the intended legal proceedings against Mr Alaric Soh and his company.

25

In fact, we are also aware that Alaric Soh has also used another title of

Miss Tourism Intercontinental (as printed in his souvenir programme) some time ago again infringing another party international title) and was stopped by the Franchise Owner. He had no choice but to change to Miss

30 Tourism Pageant, thereby now infringing on our Miss Tourism

International Pageant title rights.

We know the promotion of any international pageant world final is good for the country but I believe that infringement of another party’s title

35 rights are not ethical and unbecoming.

As we also believe the confusion created is bad for everyone, including our franchise title holders around the World and our very own country, steps must therefore be taken to clarify and rectify the situation and stop

40 the infringement.

Even now there is confusion over our Miss Malaysia Tourism and the Miss Tourism Malaysia title that Alaric Soh has conferred on the winner in the last pageant. This itself has created the misunderstanding and we

45 have no choice but to proceed with legal action on this infringement of the

Miss Malaysia Tourism title.

We believe this is strictly a company issue between myself and Alaric Soh and his company, and does not involve the State Tourism Ministry or any

50 of the participating sponsors. However, it is only fair that everyone be

kept informed of any eventuality. I have also informed YB Datuk Robert Lau (as a personal friend) on this matter through my tele conversation with him today.

5 Thank you for Dato’ Sri’s kind attention and please do call me should you require any further clarification on the matter. I can be reached at 012-300

Kind Regards,

10

Yours sincerely,

Sgd.

……………………..

15 Datuk Danny Ooi

President – Miss Tourism International

Copy to : Chief Minister’s Office

YAB Chief Minister

20

YB Datuk Robert Lau

The plaintiff told the court that upon receipt of the said letter, Dato Sri
25 Wong asked him whether he was capable and competent to organize the Miss Tourism Pageant. However, even if his evidence on this point is accepted, it is not relevant in determining whether the letter was defamatory of the plaintiff. This is because the test to be applied in determining whether any set of words or a publication as a whole is
30 defamatory is an objective test. Therefore, what a particular reader of the letter understood it to mean is not relevant. It is the impression conveyed to the hypothetical reasonable man that matters. Counsel for defendants submitted that the 1st defendant had not intended to defame the plaintiff but had wanted to clarify the confusion in respect of the trademark
35 infringement. Since the test to be applied is objective, the intention of the publisher is not relevant. In Dato' Seri Anwar Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 5 CLJ 301, Harmindar Singh JC summarized some of the defamatory tests which are to be applied objectively as follows:

(1) Would the words expose the plaintiff to hatred, ridicule or contempt?

(2) Would the words tend to lower the plaintiff in the estimation of right- thinking members of society generally?

(3) Would the words cause the plaintiff to be shunned or avoided?

5 The 1st defendant had stated as follows in his letter:
(1) that the plaintiff had infringed his Miss Malaysia Tourism and
Miss Tourism International title;
(2) that the plaintiff had infringed the Miss Tourism Intercontinental title but was stopped by the franchise holder;
10 (3) that infringement of the said titles is unethical and unbecoming.
(4) that there is confusion and misunderstanding over the titles used
by the plaintiff and that the 1st defendant would take legal action.
Even if the letter is read as a whole, it unmistakably accused the plaintiff of a civil wrong, i.e. infringing the patent or trademark rights of the
15 defendants. The 1st defendant indicated that he would institute legal
proceedings to protect his rights. The hypothetical average reasonable man would certainly think that the plaintiff was guilty of dishonorable conduct by violating the property rights of another person. The letter therefore is clearly defamatory of the plaintiff. The explanation given by
20 the 1st defendant for writing the letter is strictly not relevant as it is an
attempt to justify his action. Justification is a defence but is not relevant in determining whether a publication is defamatory. The law only looks towards the tendency of words to lower the standing of the plaintiff in the estimation of the average reasonable man. In coming to this conclusion, I
25 have also considered the argument whether the letter to Dato Sri Wong Soon Koh was a letter of awareness and not a letter which contained defamatory imputations. Counsel for plaintiff cited the case Ratus Mesra
Sdn Bhd v Shaik Osman Majid & Ors [1999] 3 MLJ 529. In that case, the defendants had placed an advertisement in the newspapers inviting the public to invest in ostrich farming. The plaintiff wrote an article urging caution and wondered why the Registrar of Companies did not require a
5 prospectus to be issued. The court held that the said letter was not defamatory when read as a whole. However, the advertisement in that case can be distinguished without any difficulty from the letter in question. The defendants in that case did not accuse the plaintiff of any civil, criminal or moral wrong. They had merely urged the public to
10 exercise vigilance before investing without having the full details. In the instant case, the 1st defendant had categorically accused the plaintiff of infringing the patent and trademark that belonged to others. Having found that the said letter is defamatory, I shall now move on to consider the defences raised by the defendants.
15 Whether justification proved?
Justification is a complete defence because what is true cannot at the same time be defamatory (see Dato' Seri Anwar bin Ibrahim v Dato' Seri Dr Mahathir bin Mohamad [1999] 4 MLJ 58). Even the presence of actual malice would not defeat a successful justification defence. The burden to
20 prove justification lies squarely on the defendants. They must prove on a balance of the probabilities that the defamatory imputations contained in the said letter are true. The sting of the defamation is that the plaintiff infringed the trademark rights of two titles of the defendants, namely Miss Malaysia Tourism and Miss Tourism International and that of the
25 franchise holder of the title of Miss Tourism Intercontinental. During the trial, evidence was adduced that the 1st defendant’s suit against the plaintiff in the High Court in Malaya to stop the Miss Tourism Beauty pageant organized by the plaintiff on the ground of infringement of
registered trademarks that belonged to the defendant had failed. However, in my opinion, the relevant point of time to determine whether there was justification for the defamatory imputations is the date of the letter in question, i.e. 23rd October 2007. Therefore, the defendants must prove on
5 a balance of probabilities that the plaintiff had infringed the trademark
right to the Miss Malaysia Tourism, Miss Tourism International and the Miss Tourism Intercontinental titles on the said date. The proven facts are that the 1st defendant had submitted the Miss Malaysia Tourism and Miss Tourism International title for trademark registration under Class 16 and
10 Class 41 before the 23rd October 2007. However, before the 23rd October
2007, the plaintiff had also submitted his application for the registration of the trademark for the Miss Tourism Pageant and Miss Tourism Intercontinental. The crucial question that arises is whether the plaintiff had infringed the Miss Tourism International trademark of the defendants
15 by organizing the Miss Tourism Pageant. There is no evidence that the plaintiff called his pageant Miss Tourism International and it is the not the case of the defendants that he did so. However, he said that the plaintiff had put a sash on his winner with the words “Miss Tourism Malaysia” which infringes his Miss Malaysia Tourism title. The 1st defendant,
20 however, did not claim that the pageant of the plaintiff was called Miss
Malaysia Tourism. The Star newspaper report which depicts the winner wearing a Miss Tourism Malaysia sash referred to the event as Miss Tourism Pageant and not as Miss Malaysia Tourism. In my opinion, the defendants had failed to justify his allegation that the plaintiff infringed
25 his trademarks for the following reasons. On the date of the said letter, the plaintiff had already submitted his trademark for the Miss Tourism Pageant for registration. The trademark registration certificates of the defendants clearly stated that it will not give exclusive use of the words “Miss Malaysia”, “Tourism”, and “International”. This means that the
defendants as holders of the trademarks in question are only entitled to the protection of the trademark with the exact stylized words as submitted. The 1st defendant therefore should not have alleged that the plaintiff had infringed his trademark of “Miss Tourism International” simply because
5 the plaintiff called his pageant “Miss Tourism Pageant”. The defendants have no exclusive right to the words “Tourism”. Counsel for defendants also submitted that it is well known in the beauty contest industry that there is no title called a “Pageant” as it is another word for a show. That may well be so but the trademark authorities had accepted the trademark
10 “Miss Tourism Pageant” for provisional registration and had at the same time declared in the certificates issued to the defendants that the holder did not possess exclusive right to the words stated above. The 1st defendant therefore had no basis to allege in the said letter that the plaintiff had infringed his Miss Tourism International title by organizing
15 the Miss Tourism Pageant event in Sibu and Miri. Simply put, the plain English word “Tourism” is not the exclusive property of the defendants merely because they had obtained trademark registration certificates for Miss Malaysia Tourism and Miss Tourism International titles. Under section 38 of the Trade Marks Act 1976, a registered trade mark is
20 infringed by a person who uses a mark which is identical with it or so nearly resembling it as is likely to deceive or cause confusion in the course of trade in relation to goods and services. In the instant case, the plaintiff’s titles are known as Miss Tourism Pageant and Miss Intercontinental. The defendants’ titles are known as Miss Malaysia
25 Tourism and Miss Tourism International. I do not see any confusion in respect of the differently worded titles. As to the common word of “Tourism”, the Trade Mark certificate in question does not confer exclusive right of use to it. In respect of words on the sash that appeared in the photograph in the newspaper with the words Miss Tourism
Malaysia, the plaintiff cannot be said to have infringed the title of the defendant because his event was called Miss Tourism Pageant. The trademark protection is to the stylized words that the 1st defendant had submitted for registration. The 1st defendant stated in the letter that the
5 plaintiff had infringed the Miss Malaysia Tourism and Miss Tourism International titles which is not the case here. Counsel for defendants also submitted that up to the present time the plaintiff had not obtained class 41 registration for the Miss Tourism pageant title and that he had abandoned his application. He did not call any witness from MyIpo (Intellectual
10 Property Corporation of Malaysia) to support this allegation. However, in my opinion, this allegation is quite irrelevant. The crucial question is not whether the plaintiff was successful in obtaining Class 41 registration for the Miss Tourism pageant but whether he had infringed the Miss Malaysia Tourism and Miss Tourism International titles of the defendants. I find
15 that he has not infringed the titles of the defendants simply because he had no right to the exclusive use of the words “Miss Tourism”.
The 1st defendant has also alleged in the said letter that the plaintiff had infringed the title of another franchise holder other than himself by organizing the Miss Tourism Intercontinental beauty contest. The identity
20 of this franchise holder was revealed during trial. The defendants’ third witness was one Jasol Miguel Cabral from the Dominican Republic. Mr. Cabral told the court that he had registered a beauty contest title called called Miss Turismo Intercontinental. He said that this title translates as Miss Tourism Intercontinental in English and that the plaintiff had
25 infringed his trademark. However, during cross-examination he admitted that he never registered his beauty contest title in English and had no intention to organize a beauty pageant in South East Asia. He also agreed that there will be no confusion between the English and Spanish titles as
his event is organized with participation from mainly Spanish speaking countries. From the evidence of the Mr. Cabral, it is clear that the plaintiff had not infringed the trade mark to the Miss Tourism Intercontinental title as Mr. Cabral had not registered his title in English even in his own
5 country. There can be no confusion as the majority of the participants to his contest were from the Spanish speaking word. In fact, the plaintiff had by the date of the letter in question submitted his application to register the Miss Tourism Intercontinental and had received his Notice of Registration. Therefore, the question of the plaintiff infringing the title
10 that belonged to Mr. Cabral did not arise.
Learned counsel for defendants in relying on the defence of justification urged the court to consider the effect of section 8 of the Defamation Act
1957 which reads as follows:

In an action for libel or slander in respect of words containing two or more

15 distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. (emphasis mine)
As I have said earlier, the sting of the defamation contained in the long
20 letter to Dato Sri Wong Soon Koh is that the plaintiff had infringed the trademark rights of others. The defendants failed to prove infringement. Therefore, even if the defendants proved other accusations against the plaintiff such as using a sash with the words “Miss Tourism Malaysia” on one occasion, the infringement of trademark accusation would have
25 materially injured the plaintiff’s reputation.
In conclusion, the infringement of the titles of Miss Malaysia Tourism, Miss Tourism International and Miss Tourism Intercontinental is the sting of the defamation contained in the letter in question. Since the defendants
failed to prove infringement of trademark against the plaintiff, the defence
of justification has no merit.

Whether qualified privilege defence valid?

The defence of qualified privilege is not an absolute defence. It is a
5 limited defence that affords protection even if the statement is defamatory and untrue. However, the defence can be defeated by the presence of actual or express malice. The rationale for this defence is well stated in the following passage from the case of Hoe Thean Sun & Anor v Lim Tee Keng [1999] 3 MLJ 138:
10 There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided the statement is made honestly and without
15 any indirect and improper motive. These occasions are called occasions of

qualified privilege.

When words are published which are both false and defamatory, the law presumes malice on the part of the person who publishes them. However, when the publication takes place under circumstances which create

20 qualified privilege the presumption of malice is rebutted by the privilege

and the plaintiff has to prove express or actual malice on the part of the person responsible for the publication to defeat the privilege.

In order to succeed in this defence, the defendant must establish that there was common interest between him and the receiver of the defamatory
25 communication. Lord Atkinson said in the case of Adam v Ward [1917] AC 309 at p 334 that :

... a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a 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 has a corresponding interest or duty to receive it. This reciprocity is essential. (See also Rajagopal v Rajan [1972]

In the instant case, the letter was sent to Dato Sri Wong Soon Koh who
5 was the Minister of Urban Development & Tourism and copied to the late Datuk Robert Lau. I shall first consider the defence of qualified privilege in respect of the publication to the Minister of Urban Development & Tourism. The letter alleges that the plaintiff had infringed the trademark or patent rights of the defendants. It evident that the beauty pageant had
10 the support of the Minister of Urban Development & Tourism as it would put Sarawak on the international tourist map. However, one cannot help observing the obvious fact that the Minister is not the authority to adjudicate or take cognizance of patent or trademark disputes. His involvement in the beauty pageant is limited to endorsing it or assisting
15 with sponsorship deals. Therefore, he did not have a duty to receive a communication that the plaintiff was guilty of infringement of the defendants’ trademark. If the 1st defendant had complained to the Registrar of Trademarks, no one can argue otherwise. Under the Trademarks Registration Act 1976, the Registrar can receive objections in
20 respect of provisional registration of trademarks. The defendants have therefore completely failed to establish the defence of qualified privilege insofar as the publication to the Minister is concerned.
The case of the defendants that there was qualified privilege in respect of the publication of the letter to the late Datuk Robert Lau has some merit.
25 The late Datuk Robert Lau was also the co-organizer of the Miss Tourism Pageant in Sibu. It is not known whether his position as Co-Chairman of the Organizing Committee is a sinecure because the beauty pageant was held under the auspices of the Sibu Development Council. In my opinion,
as co-organizer of the beauty pageant, the late Datuk Robert Lau had a duty to receive a communication on the legal status of the ownership of
the Miss Tourism Pageant title that the plaintiff was organizing.

Express Malice

5 Since I have ruled that the defence of qualified privilege in respect of the publication of the letter to the Minister of Urban Development & Tourism is without merit, it is unnecessary for me consider whether the defendants were motivated by express malice. However, I shall consider the presence of express malice in the event I am wrong on this point. Learned counsel
10 for defendants raised a procedural point in respect of express malice. He cited Order 78 rule 3(3) of Rules of High Court 1980 and said that where the plaintiff alleges that the defendant was actuated by malice he must give particulars of the facts and matters from which the malice is to be inferred in the Reply. He submitted that it was not done in the Reply filed
15 by the plaintiff in the instant case. I have perused the Reply filed by the plaintiff. It is true that the plaintiff did not enumerate facts and matters from which malice can be inferred in a single paragraph. However, in my opinion, this lapse is not fatal. The plaintiff pleaded only one principal fact from which malice can be inferred and this fact is clearly stated in
20 paragraphs 14, 15 and 21 of the Reply. It is as follows. The plaintiff was in the midst of organizing a beauty pageant in collaboration with State agencies and the defendants were motivated by business rivalry to ridicule and embarrass the plaintiff in the eyes of Dato Sri Wong Soon Koh, the Minister for Urban Development & Tourism and the late Datuk Robert
25 Lau, Member of Parliament for Sibu. As this is the only fact which the plaintiff relied on to prove express malice, there is sufficient compliance with Order 78 rule 3(3) of the Rules of High Court 1980.
I shall now consider whether the plaintiff has proved express malice on the part of the defendants. Malice is difficult to prove by direct evidence as no one knows what is in the mind of another. However, I am satisfied that the circumstantial evidence established that the 1st defendant was
5 motivated by malice in writing the said letter. The first point to note is
that the 1st defendant knew very well that the Minister of Urban Development & Tourism is not the authority to whom he should address his complaint of infringement. I say so for the following reason. In the last paragraph of his letter he said as follows:
10 We believe that this is strictly a company issue between myself and Alaric Soh and his company and does not involve the State Tourism Ministry or any of the participating sponsors.
However, the 1st defendant proceeded to state his complaint in terms which are not very flattering of the plaintiff. The 1st defendant’s
15 complaint is that the plaintiff had infringed the titles of other franchise holders. The 1st defendant also implied that the plaintiff had no right to organize the Miss Tourism Pageant event. The plaintiff was in the last stage of organizing this event at the time the letter was received by Dato Sri Wong Soon Koh and the late Datuk Robert Lau. If the 1st defendant
20 felt aggrieved by the use of the Miss Tourism Pageant title by the plaintiff, he should have been content to take legal action as indicated in his letter. The Minister of Urban Development & Tourism could not have afforded him any relief or remedy even if the complaint was justified. The 1st defendant was aware of this fact as he said that it was a matter between
25 him and the plaintiff. Therefore, it is impossible not to conclude that the sole motive of the 1st defendant in complaining to the Minister was to embarrass and ridicule the plaintiff in his capacity as a beauty pageant organizer who was in good standing with the Sarawak government
agencies. For the above reasons, I find that the plaintiff has proved express malice on the part of the 1st defendant in publishing the said letter
to the Dato Sri Wong Soon Koh and the late Datuk Robert Lau.

Whether fair comment?

5 The defendants also pleaded fair comment as a defence. This defence can also be defeated by express malice which I found to have been proved against the defendants. Nonetheless, I shall give my views here on the defence of fair comment. In Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1, the Privy Council approved the following
10 conditions which can support a defence of fair comment:
(i) the words complained of are comment, although they may consist or include inferences of fact;
(ii) the comment is on a matter of public interest;
(iii) the comment is based on facts; and
15 (iv) the comment is one which a fair-minded person can honestly make on the facts proved.
The defence of fair comment cannot be said to be available to the defendants in the instant case for the following reasons. The allegation that the plaintiff had caused confusion may amount to a comment
20 assuming that the fact on which it is based has been proved. The allegation is based on the assumed fact that the plaintiff violated the rights of others including that of the 1st defendant. This fact was never proved by the 1st defendant. The 1st defendant had made a categorical statement that the plaintiff’s conduct was unethical and unbecoming because he had
25 allegedly infringed the patent and trademark of others. The name of the beauty pageant titles is different from that used by the plaintiff although they share common words such as “Miss” and “Tourism”. The
registration certificates clearly states that the holder of the trademark has no exclusive right to the use of these words. Therefore, a fair-minded person would not have accused the plaintiff of infringement of trademark based on the fact that his beauty pageant used the said words. I therefore
5 find that the defendants had failed to establish the defence of fair comment. Even, if such a defence had been established it would be defeated by my finding that the 1st defendant was motivated by malice.

Damages

For all the above reasons, I find on a balance of probabilities that the
10 plaintiff has proved his case against the defendants. The plaintiff has prayed for general and aggravated damages. The plaintiff has prayed for damages in the total sum of RM250,000. In an action upon libel, damage is presumed once the case is proved. The quantum of the award will depend on the standing of the plaintiff, the seriousness of the libel and the
15 extent of the circulation of the defamatory remarks. In the instant case, the letter was published to two only individuals. It is not known whether the Chief Minister’s office also received a copy of the letter. Therefore it can safely be said that the circulation was limited. This must be compared to libel published in newspapers which have a very wide circulation. The
20 plaintiff claimed to be a prominent beauty pageant organizer in Sarawak.
He listed his credentials which I have alluded to earlier. The defamatory remarks in the instant case had the tendency to disparage the plaintiff in his profession and cause a business loss. This is the reason I inferred malice on the part of the 1st defendant. The 1st defendant sent the letter to
25 the two individuals who presumably had a big say in terms of state
patronage of the plaintiff’s business. Furthermore, although the attempt of the 1st defendant to obtain an injunction against the plaintiff by proving that there had been infringement of his trademark had failed, the 1st
defendant still persisted with his justification defence. Therefore, I am of the opinion that an award for aggravated damages is in order. However, having considered the limited circulation of the libel and the absence of evidence as to actual damage, I am of the opinion that an award of
5 RM250,000 is on the high side. I shall grant judgment for the plaintiff against the defendants in the sum of RM50,000 as compensatory and aggravated damages. I shall fix the costs of this action at RM30,000.
There shall be post judgment interest of 8% per annum.
10
(RAVINTHRAN PARAMAGURU) Judicial Commissioner
Date of Delivery of Judgment: 8.4.2011
15
Date of Hearing: 24 – 25.6.2010
2.7.2010
6.7.2010
5 – 6.8.2010
20 6.9.2010
12.10.2010
20.10.2010
26 – 27.10.2010
31.1.2011
25 17.2.2011
24.2.2011
For Plaintiff: Mr. Arthur Lee and Ms Suhaili bt. Pen
Messrs Arthur Lee, Lin & Co. Advocates
30 Kuching
For Defendant: Mr. Yong Sie Mee and Ms Jacquelyn Hii Messrs Loke King, Goh & Partners Advocates Kuching
35

Notice: This copy of the Court's Reasons for Judgment is subject to editorial revision.

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