MELAWANGI SDN BHD v TIOW WENG THEONG [2020] MLJU 257

Federal Court (Putrajaya)

Defence of Justification for Defamation

2.     The Respondent, at the material time was a member of the Amcorp Trade Centre Owners and Tenant Association in which his late wife was the purchaser of a unit in the Melawangi Tower.

3.     The Appellant filed a suit against the Respondent under the cause of action in defamation where it was premised on an e-mail dated 13 October 2008 entitled “Amcorp Amended Letters” (“Email).

4.     On 8 April 2008, the Appellant carried out an Annual General Meeting (“AGM”) pursuant to the requirement under the Building and Common Property (Maintenance and Management) Act 2007 (“Act 663”).

5.     Apparently, not all stakeholders were satisfied with the election results of the AGM for the appointment of the committee members of the Joint Management Body (“JMB”).  Consequently, the Commissioner of Buildings processed the complaint of the stakeholders and proceeded to call for an Extraordinary General Meeting (“EGM”) of the JMB on 19 October 2008.

6.     Nonetheless, on 16 October 2008, the Appellant filed an application for judicial review pursuant to the decision to hold the EGM.  The High Court granted an injunction to postpone the EGM.  It was during the period of injunctive order that the Email defaming the Appellant was published and distributed by the Respondent.

7.     The learned trial judge of High Court found favour for the Appellant upon the Appellant successfully proved the three (3) elements of defamation against the Respondent.  It was held that the words in the Email were defamatory, the words in the Email referred to the Appellant and the words of the Email were published to third parties.

8.     In spite of that, the Court of Appeal took a different view from the High Court premised on the issue of the Email where it was submitted under Part A of the Agreed Bundle of Documents.

9.     Based on Order 34 Rule 2(d) of the Rules of Court 2012, categorizing a document in Part A effectively means that the contents of the document were not in dispute or were agreed.  The Court of Appeal held that this in turn lead to the legal consequence that the defence of justification pleaded by the Respondent to be made out.

2.     It is material to highlight the findings of the Court of Appeal in which anchored its judgement on the ground that it was the Appellant that agreed to place the Email in Part A of the Agreed Bundle of Documents as follows:

“[24] This is the primary ground of the appeal. It relates to the adjectival position in law in relation to the classification of documents into separate categories, now usually described in practice as Parts A, B and C.  Of particular concern here is the meaning to be ascribed to, and the legal consequences of placing documents in Part A.

[25] In this context, it is not in dispute that the litigating parties agreed to place the email in Part A of the Agreed Bundle of Documents.  As a consequence, it was marked in the course of evidence without reservation and admitted into evidence.

[26] As it was so marked learned counsel for the Respondent maintained that it amounted in effect to the Appellant admitting or conceding that:

i.     The email existed and was not therefore fabricated;

ii.    The email had been authored by the maker stated in the email; and

iii.  The Appellant admitted that the contents of the documents were true.

[27] It is the last of the three propositions that gave rise to serious dispute in this and other appeals.  By admitting that the contents of the documents were true, there would effectively be a concession that the very statements that the plaintiff had challenged as being defamatory were in fact true. This in turn would have the legal consequence that the defence of justification had been proven or conceded to by the Appellant.  The Appellant would therefore have no further basis for its claim in defamation.”

[Emphasis added]

3.      Crucially, the Court of Appeal also observed as follows:

“[28] It is important to point out that the option was given to the Appellant (through its counsel) to retract or remove the relevant document from the category known as Part A and for it to be placed in Part B during the course of the trial.  However, the Appellant refused this offer and insisted on the email remaining in Part A.”

[Emphasis added]

4.     By looking at the evidence, the judgement of the Court of Appeal implying that it was the Appellant who insisted for the Email to remain in Part A of the Agreed Bundle of Documents is not free from difficulty, it raised serious problems.

5.     The answer to this factual question on the basis of what was agreed to by the litigating parties by looking at the Appeal Records, accurately the notes of the proceedings.

6.     The relevant parts of the notes of the proceedings which have a strong bearing on the matter can be seen as follows:

“DNR (counsel for the plaintiff): ….we are now proposing the document in Part A to be moved to Part B.  They are objecting.  So I humbly request My Lord’s ruling on that as to whether we may be permitted to move it to Part B because it has not start.  The trial hasn’t started.  The witnesses are here.  The maker of the document is also here.  So if we are allowed to do that, My Lord, then I will humbly request for that to move to Part B.

YA: Precisely what document?

DNR: My Lord, the document at page 78 to 79 in Ikatan Dokumen Bersama Bundle B. Page 78, My Lord.

YA: An email, right?

 DNR: Yes, My Lord.”

7.     Based on the above observation, the Federal Court found that the Court of Appeal made a principal error upon its finding that the Appellant agreed to place the Email in Part A of the Agreed Bundle of Documents.  The Federal Court highlighted that the said judgement by the Court of Appeal was based upon a wrong premise of facts.

8.     With respect, the Federal Court found that the underlying basis for the Court of Appeal to justify its appellate intervention was wholly untenable.

9.     As a matter of fact, it is sufficient to warrant appellate intervention for the Federal Court and allow the present appeal.

(a)  Technically, in proving the published statements to be true under the defence of justification, it is worth highlighting that classification of the bundle of documents plays an important role during the trial.  Order 34 Rule 2(2)(d) & (e) of the Rules of Court 2012 provides the classification of documents into three (3) parts as follows:

(i)           Part A – Counsels for both parties agree to the authenticity and truth of the contents of the documents;

(ii)         Part B – Counsels for both parties agree to the authenticity of the documents, but not to the truth of its contents;

(iii)        Part C – Counsels for both parties agree to neither the authenticity nor the truth of the contents of the documents.