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2021 MarsdenLR 2465
HIGH COURT MALAYA KUALA LUMPUR
DAVID CHIU TAT-CHEONG – Appellant
Versus
SEEMA ELIZABETH ISOY – Respondent
[Suit No: WA-23CY-10-03/2018]
In a defamation claim, the plaintiff must prove the statements are defamatory, refer to them, and were published; defenses like justification and qualified privilege can negate claims.
Headnote:(A) Defamation – Elements required for claim – The plaintiff must prove (a) that the impugned statements are defamatory, (b) that they refer to him, and (c) that they were published to a third party – The court dismissed the claim on grounds that the statements were not defamatory. (Paras 13-24).
(B) Defenses to defamation – The court found that the defendant's defenses of justification, qualified privilege, and fair comment were established – The defendant demonstrated that the impugned text was based on true facts known to the complainant. (Paras 39-88).
Facts of the case: The plaintiff alleged defamation by the defendant in a WhatsApp group text discussing the plaintiff's company and family, claiming it contained defamatory statements regarding his integrity. (Paras 6-12).
Findings of Court: The court found the two elements necessary for defamation were not proven, leading to dismissal of the case. (Paras 13, 33).
Issues: Whether the impugned text could be considered defamatory and whether defenses were applicable. (Paras 13, 39).
Ratio Decidendi: The court ruled that the impugned text conveyed observable facts rather than defamatory implications about the plaintiff, and that significant defenses were available to the defendant based on truth. (Paras 24, 43).
Result: Claim for defamation dismissed.
JUDGMENT
Introduction
[1] The plaintiff's ("P") claim against the defendant ("D") is for defamation. The trial was part-heard by another judge on 29 May 2019. And then continued before me on 22 September 2020, 6 April 2021 and 7 April 2021. Arrangements were made for P to testify remotely from Hong Kong (via Zoom) due to the Movement Control Order that was imposed as a result of the Covid-19 pandemic. After a full trial, I dismissed P's claim. These are the grounds of my judgment.
Background
[2] P is the founder and managing director of Malaysia Land Properties Sdn Bhd ("Mayland"). Mayland is the developer of Waldorf & Windsor Towers Service Apartments ("W&W"). In his written submissions, P stated that W&W is "a property developed by David Chiu".
[3] At all material times, D was the owner of an apartment unit at W&W. Further, D was: (a) vice-chairman of the W&W management committee for 3 terms from 2012 to 2015, (b) a member of the W&W management sub-committee from 2017 to 2019 and (c) chairman of the W&W management committee elected at the 2019 AGM (Annual General Meeting).
[4] W&W is and was involved in the following suits, in which the opposing parties are Mayland, its related entities or individuals connected to the Mayland group:
(a) Kuala Lumpur High Court Civil Suit No: 22NCvC-460-2011 between Mayland and W&W Joint Management Body ("JMB");
(b) Court of Appeal (Appellate Division) Appeal No: W-02(NCvC)(W)-1150-05/2012 between Mayland and the JMB;
(c) Federal Court (Appellant Jurisdiction) Civil Application No 08(f)-260-04/2013(W) between Mayland and the JMB;
(d) Kuala Lumpur High Court Civil Suit No:22NCvC-13-01/2014 between various apartment owners and Mayland;
(e) Kuala Lumpur High Court Civil Suit No: WA-22NCvC-298-06/2017 between a Mayland connected person and W&W Management Corporation ("MC");
(f) Kuala Lumpur High Court Civil Suit No: WA-22NCvC-374-07/2017 between the MC and Mayland;
(g) Court of Appeal (Appellate Division) Appeal No: W-02(IM)(NCvC)-1918-09/2017 between Mayland connected persons and the MC;
(h) Kuala Lumpur High Court Application for Judicial Review No: WA-25-323-12/2017 between a Mayland connected person, the MC and DBKL;
(i) Court of Appeal Civil Appeal No: W-02(IM)(NCvC)-1454-07/2017 between a Mayland connected person and the MC.
[5] In relation to the said suits, various issues and matters between W&W and Mayland, its related entities or individuals connected to the Mayland group were litigated or are in the midst of litigation, including:
(a) the JMB successfully re-claiming a substantial portion of the 7th floor of W&W from Mayland who had been found guilty of fraud and/or false misrepresentation in obtaining the title to the same. Mayland was found to have perpetrated fraud and/or false misrepresentation at the land office and JUPEM (the Malaysian Department of Survey and Mapping);
(b) 47 W&W owners initiating a class action against Mayland seeking compensation for costs incurred in renovating the unfinished portion of the 7th floor of W&W;
(c) the MC claiming unpaid contribution of maintenance fees and sinking fund (approximately RM1 million) against a Mayland connected person in respect of 414 parking bays linked to one residential apartment unit at W&W and operated as a commercial car park;
(d) the MC obtaining an interim injunction to remove proxies of Mayland and its related entities from holding positions in the W&W management committee due to irregularities at the 2017 AGM which contravened the laws on strata management. Had this injunction not been granted, the W&W management committee would have consisted solely of 3 proxies of Mayland and its related entities;
(e) the MC successfully appealing the injunction that had been granted which had allowed a Mayland related entity to attend the 2017 AGM.
Impugned Text
[6] D was a participant in a WhatsApp group chat known as 'W&W Owners' ("WhatsApp Group"). The WhatsApp Group consisted of 56 participants, including D. All of whom were owners of
