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2023 MarsdenLR 1847
HIGH COURT MALAYA PENANG
WARISAN PINANG SDN BHD & ORS – Appellant
Versus
CAROLYN KHOR TSAI CHEN – Respondent
[Civil Suit No: PA-22NCVC-70-04/2022]
The court established that statements made by the defendant were defamatory and published with malice, negating defenses of qualified privilege and fair comment due to failure to verify facts.
Headnote:(A) Defamation Act 1957 - Sections 6 and 9 - Defamation and malicious falsehood - Plaintiffs claim for libel based on five publications by Defendant, alleging fraudulent dealings with government - Court finds statements defamatory, published with malice, and without reasonable belief in truth - Defenses of qualified privilege and fair comment not applicable due to failure to verify facts and malicious intent. (Paras 158, 159, 50, 137)
(B) Burden of Proof - Plaintiffs must prove defamatory nature of statements, identification, and publication to third parties - Defendant must prove truth of statements when raising defenses. (Paras 26, 29)
Facts of the case:
Plaintiffs, involved in management and construction services, sued Defendant for defamatory publications alleging fraudulent actions related to land swap deals. Defendant published statements without verifying facts, leading to reputational harm. (Paras 1, 7, 10, 24)
Findings of Court:
Court finds Plaintiffs proved their claims of defamation and malicious falsehood, with Defendant failing to establish her defenses. (Paras 158, 159)
Issues: Whether the statements made by the Defendant were defamatory, whether they were published maliciously, and whether the Defendant's defenses were valid. (Paras 24, 31, 137)
Ratio Decidendi: The Court held that the impugned statements were defamatory as they lowered the Plaintiffs' reputations and were published with malice. The Defendant's failure to verify facts and reliance on unreliable sources negated her defenses. (Paras 49, 50, 137)
Result: Plaintiffs awarded damages of RM100,000.00 each for the 1st and 2nd Plaintiffs, and RM80,000.00 for the 3rd Plaintiff, along with costs. (Paras 168)
| Table of Content |
|---|
| 1. defamation action initiation and parties involved. (Para 1 , 2 , 3 , 4 , 5) |
| 2. details of the defamatory publications. (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 3. defendant's defenses and arguments. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19) |
| 4. trial process and evidence evaluation. (Para 21 , 22 , 24 , 25 , 26) |
| 5. determination of defamatory meaning. (Para 30 , 31 , 32 , 33 , 34 , 35 , 36) |
| 6. legal standards for defamation. (Para 52 , 53 , 54 , 55 , 56 , 57) |
| 7. malicious falsehood and its elements. (Para 137 , 138 , 139 , 140 , 141) |
| 8. final judgment and damages awarded. (Para 158 , 159 , 160 , 161 , 162 , 163 , 164 , 165 , 166) |
Introduction
[1] The Plaintiffs commenced this present defamation action against the Defendant based on five publications published during her tenure as the Communications Chief of Wanita Keadilan of the People's Justice Party (Parti Keadilan Rakyat) ("PKR"). In addition, the 1st and 2nd Plaintiffs have also mounted a claim against the Defendant for the tort of malicious falsehood.
[2] A full trial was conducted. I will first set out the background facts, followed by the parties' respective contentions/submissions and thereafter my analysis of the evidence in relation to the agreed issues to be tried in this matter to determine whether the Plaintiffs' claim should succeed.
The Parties
[3] The 1st Plaintiff is a company providing management services and investment holding while the 2nd Plaintiff is a company in the construction business. Both companies are related.
[4] The 3rd Plaintiff is the majority shareholder and a director of the 1st and 2nd Plaintiffs.
[5] The Defendant was previously the Communications Chief of Wanita Keadilan and is currently still a member of Parti Keadilan Rakyat (PKR), a political party registered in Penang, Malaysia under the Societies Act 1966.
Agreed Facts/ Premise Of Claim
[6] In the statement of agreed facts filed in these proceedings, parties have agreed to the following facts:
6.1 The libel action herein against the Defendant is premised on five publications (hereinafter collectively known as the "said publications"):
i. Press statement by Carolyn Khor dated 7 June 2019 (hereinafter referred to as the "first publication");
ii. An article entitled 'PKR Wanita urges new MACC chief to look into Mindef land swap deal' dated 7 June 2019 and published on Free Malaysia Today at the URL: https://www.freemalaysiatoday.com/ category/nation/2019/06/07/pkr-wanita-urges-new-macc-chief- to-look-into-mindef-land-swap-deal/ (hereinafter referred to as the "second publication");
iii. An article entitled 'SPRM diminta siasat pertukaran tanah Kementerian Pertahanan sejak 24 tahun' dated 8 June 2019 and published on Malaysia Gazette at the URL: https://malaysiagazette. com/2019/06/08/ sprm-diminta-siasat-pertukaran-tanah- kementerian-pertahanan-sejak-24-tahun/ (hereinafter referred to as the "third publication");
iv. Press statement published by Carolyn Khor on her Facebook page dated 27 June 2019 (hereinafter referred to as the "fourth publication"); and
v. An article entitled 'Land swap: Wanita PKR enggan tarik kenyataan dan memohon maaf kepada pemaju' dated 28 June 2019 and published on Malaysia Dateline at the URL: https:// www.malaysiadateline.com/land-swap-wanita-pkr-enggan-tarik- kenyataan-dan-mohon-maaf-kepada-pemaju/ (hereinafter referred to as the "fifth publication").
6.2 The Plaintiffs have through their solicitors issued a letter before action dated 24 June 2019 to the Defendant to perform the following:
i. to issue a full and unequivocal, written retraction and apology; and
ii. to provide an undertaking from the Defendant not to cause, permit or allow the re-publication or repetition of the same or similar allegations contained in the first publication now or in the future.
Parties' Pleaded Cases/ The Respective Claims
The Plaintiffs' Claim
[7] The Plaintiffs' claim against the Defendant is for libel arising from the impugned statements in the said five publications and malic
