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2022 MarsdenLR 2016
HIGH COURT MALAYA IPOH
SUNDARAJAN SOKALINGAM – Appellant
Versus
ARJAN SINGH BISHEN SINGH & ANOR – Respondent
[Civil Appeal No: AA-12B-26-10/2018]
In defamation claims, statements must bear defamatory meaning, reference the plaintiff, and be published to a third party; defences of privilege depend on the context and necessity of verified truths.
Headnote:(A) Defamation Act 1957 – Elements of defamation – The court determined that defamation requires proving the words are defamatory, refer to the plaintiff, and were published – The defence of qualified privilege was not proven as the statements were made without verifying their accuracy – Absolute privilege does not apply as no judicial proceedings existed at the time of the letter's issuance. (Paras 8, 9, 25, and 26)
Facts of the case:
Plaintiffs, advocates and solicitors, sued for defamation following an impugned letter's publication alleging collusion and fraudulent execution pertaining to a land charge. The letter was sent after a police report but before any ongoing judicial proceedings regarding the matter.
Findings of Court:
The court upheld the Sessions Court's decision that the impugned statements were defamatory and lacked privilege, ordering the defendants to pay damages.
Issues
: Whether the statements were published to a third party and if the defences of absolute and qualified privilege applied.
Ratio Decidendi:
The court found that the statements were indeed published to a third party and that the defences failed due to a lack of verified truth and absence of any ongoing judicial proceedings.
Result:
Appeal dismissed with costs.
JUDGMENT
Introduction
[1] This is an appeal against the decision of the Sessions Court delivered on 28 September 2018. The Sessions Court allowed the respondents' claim for defamation against the appellant. The appellant and the first and second defendants were ordered inter alia to pay RM80,000.00 as general damages and RM40,000.00 as exemplary damages to the first respondent and RM30,000.00 as general damages and RM 15,000.00 as exemplary damages to the second respondent.
[2] After hearing the parties and considering their written submissions, I dismissed the appeal and now will provide my reasons for doing so. For convenience the parties will be referred to as they appear in the Sessions Court.
Salient Facts
[3] The first plaintiff is an advocate and solicitor of the High Court of Malaya who practices under the name and style of Messrs. Arjan Singh & Co. The second plaintiff is also an advocate and solicitor of the High Court of Malaya who practices under the name and style of Messrs. Thangaveloo & Co. On the other hand, the first defendant is the husband of the second defendant and they were represented by their solicitor, the third defendant.
[4] The first and second defendants were the defendants in Kuala Kangsar Sessions Court Summons No 52-67-2009 ('KK Civil Suit'), where Syarijaya Sdn Bhd ('SSB') was the plaintiff. A consent judgment was recorded on 27 April 2011 for the KK Civil Suit (exhibit P6). According to the terms of the consent judgment, the first and second defendants shall charge their land held under the grant of title No PN 111311, Lot No 11288, Mukim Sungai Siput, Daerah Kuala Kangsar, Negeri Perak ('said land') to SSB as a guarantee for repayment of RM60,000.00 as the agreed amount.
[5] A charge on the said land was registered on 10 August 2011 (exhibit P5). By a letter dated 25 September 2012, the solicitors representing SSB Messrs. Page Hong & Thangasvari ('PHT') issued a notice of default under s 254 of the National Land Code 1965 (Form 16D) to the first and second defendants. Previously, PHT vide letter dated 22 August 2012 demanded the judgment sum from the first and second defendants and notified them of SSB's right to foreclose the said land.
[6] On 4 October 2012, the first defendant lodged a police report against the plaintiffs. Subsequently, the third defendant issued a letter dated 8 October 2012 to PHT ('the impugned letter', exhibit P1). According to the third defendant, he was instructed by the first and second defendants to issue the impugned letter to PHT.
[7] The plaintiffs pleaded case is for defamation based on the publication of the impugned letter by the third defendant. The three impugned statements mentioned in P1 are reproduced in verbatim as follows:
(i) After that, there is no reply from Mr Arjan Singh to our clients and we believe there ivas negotiations going on between our client and Mr Arjan Singh to sort out the matter as there were some issues on the fraudulent execution of the Borang 16A. And then for the past 4 months there was silence from Mr Arjan Singh and until we receive your notice.
(ii) Now we wish to put you on notice that your client presumably colluded with Mr Arian Singh and Mr Thanqavelo in preparation of the Borang 16A and our clients reiterates that he never signed the said Borang 16A in the presence of Mr Thangavelo and he further affirms that he does not know who Mr Thangavelo is.
(iii) In fact, when our clients was (sic) called to Mr Arjan's office on or about August, 2011, our clients was asked to sign the Borang 16A but he and his wife never signed the forms but took it back with him to get advise from his lawyers who at that time was Mr Robert. [A copy of the said Borang 16A and also copy of the actual Borang 16A which is registered is attached herewith for your perusal].
Issues And Findings Of The Court
[8] It is trite law that an appellate Court will not interfere with the findings of fact arrived at by the Court of first
