The categorization of documents as Part A signifies acceptance of both authenticity and truth in defamation claims; thus enabling a valid defense of justification.

Introduction

[1] This appeal brings to the fore an adjectival or procedural issue that has a substantive legal effect on the outcome of issues to be determined at trial. It relates to a fundamental point of practice that is utilised in our courts on a daily basis in civil trials. It is unique to Malaysia and has evolved over time in terms of its application and consequences.

[2] The issue is that of the emplacement of documents to be utilised at trial in various categories. It is one of the most significant matters to be dealt with in the course of case management as such emplacement does in practice determine whether:

(i) the makers of documents are required to be present at trial to be cross-examined on the authenticity and contents of documents; and

(ii) whether the litigating parties agree on the contents of any of the documents sought to be adduced at trial.

The Appeal Before Us

[3] This is an appeal by Tiow Weng Theong ('the defendant') against the decision of the High Court which held that he was liable for defamation against a company known as Melawangi Sdn Bhd ('the plaintiff'). The plaintiff's cause of action in defamation is premised on two documents, namely:

(a) a letter dated 25 June 2008 ('the letter'); and

(b) an e-mail dated 13 October 2008 ('the e-mail').

[4] In the High Court, the learned Judicial Commissioner ('JC') found that the defendant did not defame the plaintiff in the letter, because there was no evidence that the defendant issued the letter and he denied doing so. However, the defendant did not deny sending the e-mail. Accordingly, the learned JC held that on a balance of probabilities, the defendant was the person who had sent the said e-mail.

[5] The learned JC further held that the defendant defamed the plaintiff in the e-mail.

[6] The defendant's appeal before us is therefore confined to the learned JC's findings in relation to the e-mail and not the letter. The facts are not in dispute and are set out below.

The Salient Facts

[7] The plaintiff company is a wholly-owned subsidiary of Amcorp Group Berhad and the developer of a piece of commercial property known as the Amcorp Trade Centre ('ATC').

[8] ATC comprises the PJ Tower, Amcorp Tower, Melawangi Tower (Menara Melawangi) and Amcorp Mall. The PJ Tower, Amcorp Tower and Amcorp Mall were completed sometime in the year 1997 while Melawangi Tower was completed sometime in the year 2006.

[9] ATC was initially managed by an agent, a company known as Jones Lang Wootton. On or around 17 July 2002, the plaintiff took over the management of ATC.

[10] The defendant is an individual who is currently an Executive Director of Euratech Industries Sdn Bhd. His late wife, Madam Kam Yew Ling, purchased Unit SS19-19 in Melawangi Tower ('the unit') sometime in 2003. The construction of Melawangi Tower was completed in 2006.

[11] Sometime in 2008, the defendant became a joint owner of the unit together with his wife. He then sought registration as and became a committee member of the Amcorp Trade Centre Owners and Tenants Association ('ATCOTA'). ATCOTA is an association registered with the Registrar of Societies on 4 June 2004.

[12] Since it was registered, ATCOTA raised many issues and complaints relating to the alleged mismanagement by the plaintiff of ATC but was ignored.

[13] At the time the PJ Tower, Amcorp Tower and Amcorp Mall were completed, the relevant statutory legislation were the Strata Titles Act 1985 and the Housing Development (Control and Licensing) Act 1966 which essentially gave developers of stratified property the right to manage the same.

[14] In April 2007, the Building and Common Property (Maintenance and Management) Act 2007 came into force. In accordance with this Act, the Joint Management Body ('JMB') of ATC was established on 8 April 2008 to maintain the common property of ATC. I