Absolute privilege protects statements made in judicial proceedings from defamation claims, even if made maliciously, and prevents abuse of court process.

JUDGMENT

Roz Mawar Rozain JC:

[1] The Plaintiff filed a suit for defamation against the Defendants based on a letter dated 24 September 2018 from the 1st defendant signed by the 2nd defendant (the Chief Executive Officer at the material time). The letter was addressed to Hitachi Limited Tokyo (Hitachi Tokyo) and its wholly owned subsidiary Hitachi Systems Digital Services Pte Ltd Singapore (Hitachi Singapore). The letter was a complaint and a 'Without Prejudice' proposal to the litigation initiated by the latter against the 1st defendant (and also Cuscapi Malaysia Sdn Bhd (CMSB)) under Kuala Lumpur Suit No WA- 22NCvC-399-09/2018 (Suit 399) which was filed two weeks prior. The Plaintiff took offence to the following contents in the said letter:

• "Her Chor Siong (HCS) the former Chief Executive Officer of CP and a director of CMSB, was working together with Ong Chin Hui ("Joshua"), a director of Hitachi Singapore, to defraud CB & CMSB;

• That there is a large amount of secrecy surrounding the 23 September 2016 "Agreement". The usual formalities are not preset, for example, witnesses;

• Joshua and HCS had teamed up to earn a secret profit at the expense of CMSB and CB; and

• Hitachi Singapore, together with Joshua, assisted HCS in his breach of fiduciary duties to CMSB and CB."

[2] This letter was sent pursuant to Suit 399 which was a claim for a sum of approximately RM3,600,000.00 against the 1st defendant as the corporate guarantor for the purchase of REV tablets by CMSB vide an agreement dated 23 September 2006. The corporate guarantee was signed by the Plaintiff for the 1st defendant. The purpose of the letter was for a constructive resolution to the legal suit - Suit 399. There was no resolution. Then a month later, on 29 October 2018 the 1st defendant (together with CMSB) filed its Defence and Counterclaim against Hitachi Singapore, the Plaintiff and Joshua. The Defence and Counterclaim reiterated the statements above. As a public listed company, the 1st defendant had also made an announcement on 29 October 2018 of its pending litigation. The statements in the letter were repeated. On 28 December 2018 the 1st defendant (together with CMSB) lodged a police report. They further lodged a complaint with the Malaysian Anti-Corruption Commission (MACC) on 11 April 2019. In this suit, the Plaintiff alleged that all these actions showed malice and bad intentions on the part of the Defendants to harm his reputation and defame him.

[3] On 31 December 2020 after a full trial of Suit 399, the High Court had allowed Hitachi Singapore's claims and dismissed the 1st defendant's (and CMSB's) counterclaim. Presently criminal proceedings pursuant to a charge pursuant to MACC's investigation against the Plaintiff is on-going. The 2nd defendant was called as a witness for the Prosecution from 6 November 2023 to 8 November 2023. Just before that, the Plaintiff filed this suit. The counsel for the Defendants submitted that the Plaintiff knew that the 2nd defendant was to testify in the prosecution against him when the Plaintiff filed this action on 29 September 2023.

[4] As informed by the 1st defendant to the Plaintiff in response to the latter's letter of demand prior to the filing of this suit, the allegation of defamation was refuted as the words and the contents of the letter are protected by absolute privilege. Hence, this application by the Defendants vide Enc 9 to strike out the Plaintiff's suit on the grounds that it does not disclose a reasonable cause of action. This is because the foundation of the Plaintiff's cause of action for tort of defamation heavily rested on the alleged defamatory words contained in the letter.

Absolute Privilege

[5] In assessing whether the Defendants' submission that absolute privilege is a complete defence to the alleged defamatory words in the letter, this Court considered the well-established legal principles enunciated in Royal Aquarium v. Parkinson [1892] 1 QB 431 at p 451:

"The authorities establish beyond all