Back
2011 MarsdenLR 1070
HIGH COURT MALAYA KUALA LUMPUR
DAVID KUOK KHOON HIN – Appellant
Versus
KUOK KHOON HWONG – Respondent
[Suit No: S-22-69 Of 2011]
Defamatory statements must impute dishonorable conduct; privilege defenses fail if not compliant with statutory requirements, leading to liability for damages.
Headnote:(A) Defamation - Elements of defamation established through allegations in impugned letter - Content was published and referred to the plaintiff - Consideration of absolute and qualified privilege as defenses raised by the defendant - Absolute privilege not applicable as letter was not in quasi-judicial proceedings and lacks necessary conditions prescribed by Companies Act 1965. (Paras 16-22)
(B) Malice - Failure to substantiate claims in letter and previous judicial findings affirming defendant's failure demonstrates recklessness leading to malice being established. (Paras 23)
Facts of the case:
The action arises from a letter written by the defendant regarding the plaintiff, alleging irregularities in company management, resulting in claims of defamation amidst ongoing familial corporate disputes.
Findings of Court:
The court determined the impugned letter was defamatory, establishing that the defendant acted with malice and dismissed defenses on privilege. Monetary damages of RM70,000 were awarded, broken down into general and aggravated damages.
Issues: The key issues include whether the impugned letter is defamatory, the applicability of defenses of absolute and qualified privilege, and the recklessness or malice of the defendant in making allegations.
Ratio Decidendi: The court held that the words of the impugned letter imputed discreditable conduct to the plaintiff and the defenses raised lacked legal merit, leading to a finding of liability for defamation.
Result: Judgment awarded in favor of the plaintiff.
| Table of Content |
|---|
| 1. defamation stemming from intra-family disputes. (Para 1 , 2) |
| 2. background and relevant history of corporate disputes. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. nature of the impugned letter and defamation claim. (Para 15) |
| 4. elements of defamation and assessment of the letter. (Para 16 , 17 , 18 , 20 , 21) |
| 5. defenses of absolute and qualified privilege. (Para 19 , 22) |
| 6. judgment on malice and recklessness. (Para 23) |
[1] This is an action for defamation arising out of a letter written by the defendant concerning the plaintiff to a representative of a liquidator. The court after a trial of the matter concluded the letter was libelous when it delivered its judgment on 21 February 2011. The defendant has since appealed against the decision and I append below my reasons for so finding.
[2] The plaintiff and the defendant are brothers and are part of one of the notable families in Malaysia the Kuok family and the root of bitterness between these two brother stems from intense rivalry and mistrust amongst family members in the corporate myriad of family companies. This exploded into a series of litigation that tread the path for each of the cases from the High court to the Supreme court and the court of Appeal. Whilst the materials and allegations in each of these cases reminds one of the scripts that miniseries on the television were made of, it kept our courts busy for close to approximately two decades or so. While our law journals and the legal fraternity have been enriched by the points of law these cases stood authority for, they left on indelible mark of bitterness and mistrust between the plaintiff and the defendant which has spilled over to the present dispute before me.
[3] Before I proceed further let me set out briefly the background of the history of this case antecedent to the dispute at hand. The background facts are as set out below:
Background Facts
[4] The defendant'ceased to be a director of the following companies since 1989:
(a) Tien Ik Sdn Bhd;
(b) Tien Ik Enterprises Sdn Bhd; and
(c) Tien Ik Credit Sdn Bhd.
[5] The Supreme court affirmed a declaration that the defendant be removed from office as Director of Tien Ik Enterprises Sdn Bhd and Tien Ik Credit Sdn Bhd when the notice for removal was sent to the defendant on 23 march 1989. The judgment of the Supreme court is reported in [1992] 2 MLJ 689.
[6] In 1990, Woodsville Sdn Bhd ('Woodsville'), the nominee company of the defendant, as a contributory, petitioned on just and equitable grounds for the winding up of:
(a) Tien Ik Sdn Bhd;
(b) Tien Ik Enterprises Sdn Bhd;
(c) Tien Ik Credit Sdn Bhd; and
(d) Giltspur Holdings Sdn Bhd
('the said Companies').
[7] Woodsville Sdn Bhd filed winding up petitions in the Kuala Lumpur High court for each of the said companies to be wound up on just and equitable grounds and the winding up petitions were subsequently ordered to be consolidated ('the said winding up petitions').
[8] The plaintiff and the other contributories opposed the said winding up petitions.
[9] On 9 June 1996, the High court ordered that the said companies be wound up and that, inter alia, Mr Gong Wee Ning and Mr Mustapha Mohamed be appointed as liquidators of said companies ('the liquidators').
[10] The judgment of Her Ladyship Dato' Siti Norma J is reported at [1994] 3 MLJ 89;
[11] The plaintiff and the other contributories then appealed to the then Supreme court against the winding up order of 9 June 1994 in Supreme court Civil Appeal No 02-317 of 1994. On 25 March 1995, the Supreme court dismissed the appeal. The judgment of the Supreme court is reported at Tien Ik Enterprises Sdn Bhd v. Woodsville Sdn Bhd, [1995] 1 MLJ 769.
[12] Not long after the liquidators took office, the defendant wrote the said letter to Mr John Verghis, who was the agent of the liquidators.
[13] Subsequent to the appointment of the liquidators, the defendant sought to remove the liquidators from their office. The judgment of the High court dismis
