Defamation award against former Councilor set aside

mak

KUALA LUMPUR: The Court of Appeal ruled on Tuesday in favour of a former Petaling Jaya Councilor in a defamation suit brought against him by a real estate developer.

Justice Hamid Sultan Abu Backer set aside the judgment of the High Court against Mak Khuin Weng and awarded him costs of RM45,000 and instructed the deposit be refunded. “The pleadings, facts and the law, in taking a holistic view, has merits,” he said. “We have noted that there are some elements of public interest in the appeal.”

Other judges on the panel were Justices Abdul Karim Abdul Jalil and Asmabi Mohamad.

In the 21-page judgment, Justice Hamid held the High Court judgment suffers from a grave error of law which “in our considered view, has compromised the integrity of the decision-making process and ought to be set aside at limine (at the start)”.

The High Court Judge’s lengthy judgment, said Justice Hamid, relates to general libel suits relating to an individual person, without making an attempt to satisfy the elements stated in the South Hetton case in respect of a limited company.

There was no finding by the trial judge, said Justice Hamid, that the plaintiff – Melawangi Sdn Bhd – had proved that the words complained of injuriously affected the company in relation to its pocket. “The jurisprudence throughout the judgment advocated by the trial judge leans towards feelings which is only relevant to libel action by individual persons.”

The South Hetton case held, said Justice Hamid, that the words complained of must attack the corporation or company in the method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position.

Innuendo plays a lesser role in a defamation suit filed by a limited company when the burden of proof rests with the plaintiff to prove it injuriously affected them, as set out in the South Hetton case, said Justice Hamid. “The complaint of misconduct is clearly related to the staff of Melawangi Sdn Bhd.”

In the case of an individual, it can be presumed he has a reputation that is capable of being injured, cited Justice Hamid from the South Hetton case, but in all other cases this is something that must be proved.

Mak’s lawyer Lim Hun Ni said the company’s lawyer had told her that it would be appealing the decision.

Melawangi sued Mak at the High Court in 2014 and won RM30,000 in costs.

The company’s pleaded case against Mak, the defendant, was that the latter had published defamatory statements against the former by way of a report entitled, “Report on the Amcorp Trade Centre JMC Case to the MBPJ Commissioner of Buildings”.