HIGH COURT OF SABAH & SARAWAK
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www.ipsofactoJ.com/highcourt/index.htm [2006] Part 2 Case 2 [HCSS] |
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HIGH COURT OF SABAH & SARAWAK |
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Ng - vs - Chai |
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CLEMENT SKINNER J |
17 MARCH 2006 |
Judgment
Clement Skinner, J
This is the hearing of an application by the first, second and third defendants under Order 14A of the Rules of the High Court 1980 (the RHC) in which the court is asked to determine certain questions of law which are described in more detail shortly. The defendants pray that upon the determination of the questions identified, the court make such order or judgment as it thinks just, including the dismissal of the plaintiffs action herein. In the alternative the defendants also ask the court to exercise its powers under Order 18 r 19(1) of the RHC or the inherent jurisdiction of the court to strike out the plaintiffs claim as disclosing no cause of action against the defendants or as being scandalous, frivolous or vexatious or otherwise an abuse of the process of the court. The defendants have also applied to be allowed an extension of time to file their defence in this action, if need be, within 14 days from the date of the disposal of this application or any appeals arising therefrom.
The facts giving rise to this application are these.
On March 3, 2005 the plaintiff commenced this suit at the High Court in Sabah and Sarawak at Kuching. It is for libel allegedly committed against him by the first, second and third defendants. The plaintiff is a lawyer and a social activist in Kuching, Sarawak. He is also a politician, having stood as a candidate on the Keadilan or DAP ticket or as an independent candidate in the general elections held in 1991, 1996, 1999 and 2001. The first defendant is a columnist in a Chinese newspaper, the Sin Chew Daily, and comments or writes on political matters. The second defendant is the chief editor of the Sin Chew Daily. The third defendant is the printer, publisher and owner of the Sin Chew Daily. The Sin Chew Daily is a newspaper which is written, printed and published only in the Chinese language.
On March 3, 2004 the Malaysian Parliament was dissolved to make way for the holding of the 11 th general elections in the country. The plaintiff alleges that he intended to stand as a candidate in the 11 th general elections, nomination day for which had been fixed for March 13, 2004. Three days after the dissolution of Parliament, that is to say, on March 6, 2004 the plaintiff alleges that the defendants falsely and maliciously wrote, printed and published or caused to be falsely and maliciously written, printed and published a series of 4 articles or reports in the Chinese language in the Sin Chew Daily, of and or concerning the plaintiff which he alleges were highly defamatory of him. The allegedly offending articles were published on the following dates:
on March 6, 2004 there appeared an article captioned "Scan on Current Issues: Ng Kim Ho, Cheng Hui Hong's political logic" (hereafter "the first publication") in which 5 questions were allegedly posed to the plaintiff over two Malaysian political parties, namely, KeAdilan and PAS teaming up in West Malaysia to contest the general election but apparently being "afraid" to face the Chinese community in East Malaysia as a coalition after having allegedly "slept together" for quite sometime in West Malaysia. The plaintiff was also allegedly asked what tricks he intended to play in front of the voters because of his attempt to publicly dissociate himself from PAS in Kuching, after having allegedly gone to West Malaysia "and slept with a girl who is advocating an Islamic State".
Following the first publication the plaintiff apparently wrote to the defendants demanding an apology but none was received. Instead on March 8, 2004 an article appeared in the Sin Chew Daily captioned "Reply to Lawyer Ng Kim Ho" in which the first defendant wrote that he stood by what he had said in the first publication. In the same publication of the Sin Chew Daily of March 8, 2004 there appeared another article captioned "Editor's Message" in which the second defendant wrote that the newspaper would take responsibility for what was published in the first publication. On March 9, 2004 the plaintiff lodged a police report regarding the first publication as he regarded an offence had been committed by its publication.
on March 10, 2004 there appeared in the "Readers Column" of the Sin Chew Daily an article allegedly contributed by one "Liew Tai Jen" entitled "I see 'Scan on Current Issues' uproar as insistently seizing heavily on Ah Q's pigtail" (hereafter "the second publication") in which the writer allegedly says that the article "Scan on Current Issues" should be read as a whole and that readers should not just pick on an analogy used in the article; otherwise it would be no different to seizing heavily on Ah Q's pigtail (Ah Q, apparently being understood by Chinese readers to refer to a fictional Chinese character created by writer Lu Xim) to depict a person who has an idiotic way of doing things; while to seize on Ah Q's pigtail means to fight unfairly);
on March 11, 2004 another article appeared in the Sin Chew Daily captioned "Scan on Current Issues" (hereafter "the third publication") in which reference is made generally to the political scene and of the presence of opportunistic politicians, political scoundrels and rascals, and of there being educated persons who do not talk reason or understand the Chinese Mandarin language and are no better than thugs who talk about ethics. The article also relates how the son of a good friend who is studying law, discusses with the writer of the article how to become a professional lawyer. The writer professes to have no knowledge of legal problems but is knowledgeable of how to become a good human being and how to gain the respect of others by being righteous, humble, have integrity, forsake arrogance and greed, be principled and to hold a stand;
on March 12, 2004 there appeared in the Sin Chew Daily an article captioned "Chai Sze Shin (i.e. the first defendant) goes to Police Station to seek justice: Reporting Ng Kim Ho for making false police report", (hereafter "the fourth publication") in which the plaintiff is alleged to have made a false police report and abused the law.
In his statement of claim the plaintiff alleges:
that the words he complains about in the first publication were defamatory of him in their natural and ordinary meaning;
that the words he complains about in the second publication were defamatory of him not only in their natural and ordinary meaning but by way of innuendo also;
that the words he complains about in the third publication were defamatory of him in their natural and ordinary meaning;
that the words he complains about in the fourth publication were defamatory of him in their natural and ordinary meaning.
The plaintiff further alleges in his statement of claim that the defendants published the 4 articles just before the 11th parliamentary elections so as to cause maximum damage, to his chances in the upcoming elections by politically "assassinating" his character and destroying his public image.
By way of relief the plaintiff sought damages, exemplary and or aggravated damages, as well as a publication of a full unequivocal public retraction and apology from the defendants. The plaintiff also sought an injunction against the defendants to restrain them from further making, writing, printing or publishing the same or similar words or statements in any newspaper or media or forum, not only against him but also "of his party or group, political or otherwise, and or of his associates or fellow comrades in shared or common causes, in the upcoming Sarawak state election and in all future general elections whether state or parliamentary".
I pause here to make this observation. A reading of the plaintiffs statement of claim shows up one fact which cannot be disputed. It is this: The plaintiff has identified certain words and statements in each of the first, second, third and 4th publications which he complains of as being libellous of him but the plaintiff has not set out in the statement of claim the actual words complained of in their original language of publication i.e. in Chinese. What the plaintiff has done is to simply plead an English translation of the alleged offending words in the first publication and in respect of the second, third and 4th publications he did not even bother to say that what was set out was a translation of the offending words - the plaintiff simply pleaded in English what he alleged were the defamatory words as if they were written, printed and published in English.
It is not surprising therefore that on being served the writ of summons with the statement of claim endorsed thereon, the defendants entered an appearance and immediately filed this application. Hence their request to file a defence only after the outcome of this application is known. The defendants say that the plaintiffs pleadings are so fundamentally and fatally flawed that it would be unjust to allow the plaintiff to maintain it any longer. They say that it is within the power of the court to decide at this stage of the proceedings the following questions of law that have arisen from the plaintiffs pleadings and that upon such determination, the court make such order as it thinks just, including the dismissal of the plaintiffs claim. The questions of law are:
whether the precise or actual words which the plaintiff complains of as being defamatory of him in the first, second, third and 4th publications must be pleaded or set out in the statement of claim and if the answer to this question is in the affirmative, whether the plaintiff has failed to do so;
whether the statement and words which the plaintiff complains of as being defamatory of him (which are set out in paragraphs 7, 11, 16 and 19 of the statement of claim) were published by the defendants;
whether in their natural and ordinary meaning the statement and words which the plaintiff complains of as being defamatory of him (which are identified in paragraphs 7, 11, 16 and 19 of the statement of claim) are or are not capable of bearing any one or more of the meanings attributed to them by the plaintiff in paragraphs 8, 12, 18 and 20 of his statement of claim;
whether the words complained of in paragraph 11 of the statement of claim are or are not capable of bearing the meaning attributed to them by the plaintiff, by way of innuendo, in paragraph 14 of the statement of claim;
whether, if the statements and words complained of (in paragraphs 7, 11, 16 and 19 of the statement of claim) as being defamatory of the plaintiff were published by the defendants, they were published on a matter concerning politics or government and hence the defendants have a defence of qualified privilege;
whether, if the statements and words complained of (in paragraphs 7, 11, 16 and 19 of the statement of claim) as being defamatory of the plaintiff were published by the defendants, they were published on a matter concerning politics or government pursuant to the right of free speech and expression which is guaranteed by the federal Constitution including Article 10; and
whether, on the pleadings, the plaintiff is entitled to pray for an injunction in the terms set out in prayer (f) of the statement of claim.
Before considering the merits of the application, I think it will be useful to first make reference to Order 14A which is one of the orders under which this application is made. Order 14A is a new order and was introduced into our rules of court in year 2000 by PU(A) 342/2000 which came into effect on September 21, 2000. The extent of the court's power under the rule is expressed in sub-rule (1) itself of the order, which states that the court may "determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the court that:
such question is suitable for determination without the full trial of the action; and
such determination will finally determine the entire cause or matter or any claim or issue therein".
In Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2003] 5 AMR 697, the Court of Appeal had occasion to consider the scope and efficacy of Order 14A. After looking at the provisions of our new Order 14A and comparing it with its English equivalent which is found in Order 14A of the Rules of the Supreme Court, the Court of Appeal (per Mohd Noor Ahmad JCA) went on to say this about our Order 14A at p 710:
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The Order is new to our civil procedure and hence, the few local decisions of the High Court on the ambit of Order 14A are not instructive. For that reason, we are inclined to refer to foreign cases decided on the equivalent of our Order 14A. In Karso Finance Establishment Ansalt v John Wedge (unreported, February 15, 1994, CA Transcript No 14/387), the English Court of Appeal laid down the following principles on the ambit of Order 14A -
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Our Court of Appeal then went on to look at the principles applicable to an application made to court under Order 33 r 2 of the RHC and had this to say about the scope and efficacy of Order 14A and Order 33 r 2 and the distinction between the two. At p 720 the Court of Appeal said:
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Under the former (i.e. Order 14A), the entire cause or matter need not be finally determined. It also permits any claim or issue herein to be determined, but the question must be purely question of law or construction of document. And the latter (i.e. Order 33 r 2) caters not only for the question or issue of law arising in a cause or matter to be tried but also of fact or partly of fact and partly of law, and also the entire cause or matter need not be finally determined. In spite of the similarities between the two Orders there are also differences between them otherwise the former would not have been introduced into our civil procedure. It is to be stressed that under both Orders the court can direct the question or issue to be determined or tried without the need for any party having to apply for it and the court may on its own frame or reframe the question or issue for the purpose or recast the question or issue proposed by the applicant or subtract therefrom or add thereto other question or issue. These can be gathered from the provisions of the Order itself. |
The Court of Appeal then gave guidance on the approach a judge should take in the exercise of his discretion under Order 14A. At p 721 the Court of Appeal said:
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[W]hat ought to have been done by the learned judge, not as a matter of choice but in the exercise of discretion, is, at the outset, to scrutinise the pleadings to discover what material facts are not obviously in dispute, what facts the parties may agree after discussion and submission, with variation or otherwise and as the last resort to compel either party or both to accept the material facts, which the court thinks obviously should not be disputed. In our view, the last recourse, though drastic, is proper and permissible. We say so because .... Having embarked on the exercise as he ought to have done he (the judge) should consider whether the undisputed or agreed facts are comprehensive and sufficient to determine and dispose of the core or primary issues .... |
Guided by what was said in Petroleum Nasional Bhd, I have scrutinised the plaintiffs pleadings in this case and, as I indicated earlier, I find that it cannot be disputed by either party that the plaintiff did not plead in his statement of claim the actual words allegedly published by the defendants nor did he set them out in the original language. What is pleaded is only the plaintiffs English translation of the offending words allegedly written, printed and published by the defendants in Chinese. In my view these undisputed facts are comprehensive, in that, the plaintiffs failure to plead the actual words allegedly written, printed and published by the defendants is common to all the 4 publications complained about. These undisputed facts are in my view also sufficient to determine and dispose of the first and second issues which the court has been asked to decide, which are core or primary issues in this case because their determination will finally determine the entire action. I also find that in the context of the undisputed facts just mentioned the first and second issues being pure questions of law are suitable for determination without the full trial of this action.
First question of law
With that I turn to consider the first issue in this application, namely, whether the actual or precise words used in the language in which they were used should be set out in the statement of claim.
This particular question has come up for consideration in our courts before. More recently, the question came up for decision before the Court of Appeal in Karpal Singh Ram Singh v DP Vijandran [2001] 3 AMR 3625; [2001] 3 CLJ 883. Although the facts of that case are slightly different from that of this case, in that, there the original language of the words used were English and a translation in Malay, was given of them in the statement of claim, being the language of the court in West Malaysia, the principle of what was stated in that case is relevant here. In that case Mr. Karpal Singh had issued a press statement to members of the press in which he made certain comments about Mr. Vijandran. The newspapers then published an article about what Mr. Karpal Singh had said about Mr. Vijandran, using their own words as well as quoting what Mr. Karpal Singh had stated in his press release. Mr. Vijandran brought an action for libel against Mr. Karpal Singh. In his statement of claim Mr. Vijandran set out or pleaded the offending words in their original language (i.e. English) and also pleaded a translation of those words in Bahasa Malaysia (being the language of the courts in West Malaysia). The High Court gave judgment in favour of Mr. Vijandran and awarded him damages. On appeal, one of the two issues raised by Mr. Karpal Singh was that Mr. Vijandran did not sue him on the actual words he had used in his press release. To be able to decide this issue, the Court of Appeal undertook a review of the law on the point, in England, Singapore and Malaysia. His Lordship Abdul Hamid Mohamad JCA (as he then was) put the question for decision before the court in this way:
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The first question that this court has to decide is whether the actual words uttered by the appellant as contained in his press statement must be pleaded, and failure to do so, renders the pleading defective. |
The learned judge then considered the local cases first on the subject. His Lordship began with Hassan v Wan Ishak [1961] MLJ 43, a decision of Thomson CJ sitting in the then Court of Appeal. In that case the words complained of were spoken in Malay, but in the statement of claim the words were set out in English. In the course of his judgment in that case Thomson CJ said:
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As a matter of practice when defamatory words are alleged to have been spoken in a language other than the language of the court these words should be set out in their original form in the pleadings and in addition a translation of them into the language of the court should be pleaded .... but although in my view the actual words used in the language in which they were used should have been pleaded the failure to do so cannot be held to have been fatal to the case of the respondents. |
A reading of the whole judgment in that case shows that Thomson CJ did not consider the failure to be fatal because as he pointed out, the point was only raised at the appeal stage whereas in a defamation suit a distinction had to be made between what needed to be pleaded and what needed to be proved at the trial. As far as the latter feature was concerned, the learned CJ then pointed out that unlike in the old days, today to succeed at the trial the plaintiff need not prove "up to the hilt" every word of the defamatory utterance set out in the statement of claim; it is sufficient if the plaintiff proves the substance of it. Since in that case the learned CJ found that the substance of the defamatory words had been proved at the trial, it was not fatal to the plaintiffs case there that the actual words had not been pleaded.
The Court of Appeal in Karpal Singh v DP Vijandran found difficulty in following the reasoning in Hassan v Wan Ishak. After reviewing the decision in that case and all the authorities cited in that case Abdul Hamid Mohamad JCA said this about the judgment in Hassan's case (at pp 3642-3643 (AMR); p 885 (MLJ)):
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It is clear from the judgment that there are two parts. The first concerns pleading and the second concerns proof. As regards proof, there is no difficulty. Unlike in the old days, now proof of words that are substantially the same as those pleaded is sufficient. But, regarding pleading it is not that easy to understand. The authorities referred to by the learned chief justice and his own words seem to suggest that "the words themselves must be pleaded". But earlier on in his judgment, the learned chief justice said:
We must bear in mind that in that case the words complained of were spoken in Malay and the statement of claim was wholly in English. So it cannot be said that the actual words spoken by the defendant in that case were pleaded. And that was held not to be fatal to the plaintiffs case (in that case). |
The fact that in that case the defendant did not deny that the words, if said, were defamatory but denied using those words should not make any difference as we are talking about what should be pleaded.
The next case reviewed by the Court of Appeal in Karpal Singh v DP Vijandran was Lim Kit Siang v Ling Liong Sik [1975] 5 MLJ 523, a decision of the High Court. In that case the cause of action was founded on a speech by the first defendant and on a publication in the Star newspaper. On the issue of pleading Zainun Ali JC (as she then was) said at p 526:
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The authorities are manifest in their approach that it is fundamental that the exact words as uttered (by the first defendant in this case) must be reproduced in the original language with a certified translation in the language of the court, in the absence of which the claim will fail .... In the light of authorities such as Harris v Warn and Collins v Jones [1955] 2 All ER 145, it is necessary for the plaintiff to plead or allege verbatim the exact words which he complains of. |
The next case reviewed by the Court of Appeal in Karpal Singh v DP Vijandran was the Singapore case of Workers' Party v Tay Boon Too [1975] 1 MLJ In that case it was alleged that the defendant had uttered defamatory words in Hokkien and that Radio Singapore had broadcast it in English. In the statement of claim the plaintiff did not set out the statement in Hokkien. The plaintiff only set out the broadcast version of the words, in English. In evidence, the plaintiff proved the reporter's version of the words. It was held that the original words spoken in Hokkien must be pleaded. Chuah J, in his judgment said:
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Here the slander alleged was spoken in Hokkien but the words complained of were set out in English in the amended statement of claim. English is the official language of the court and in that context any other language would be a foreign language (Gatley on Libel & Slander, 7th edn). If the slander alleged is in a language other than English it must be set out in the statement of claim in the foreign language precisely as spoken and followed by a literal translation. It is not enough to set out a translation without setting out the original and vice versa (Gatley on Libel and Slander, 7th edn paragraph 987). While the absence of translation in the pleadings may not be fatal to the plaintiffs case the absence of the original words in the foreign language in question is. [emphasis added] |
The Court of Appeal in Karpal Singh also reviewed the position in England which the court found conveniently stated at p 652 of Gatley on Libel and Slander, 9th edn. The Court of Appeal also considered the decision in British Data Management Plc v Boxer Commercial Removals Plc [1996] 3 All ER 707, CA which the court regarded as an important case as "Hirst LJ in his learned judgment surveyed the leading authorities on the subject".
Having conducted an extensive review of the law on the subject the Court of Appeal in Karpal Singh came to a finding on what needs to be pleaded in a defamation suit. This is what Abdul Hamid Mohamad JCA said (at p 3648 (AMR); p 890 (MLJ)):
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I do not think I need to consider other authorities. It is quite clear to me that, first, there is a distinction between what has to be pleaded and what has to be proved. What need to be proved is very clear: the plaintiff does not have to prove every word that is pleaded but proof of words that are substantially the same as those pleaded is sufficient. |
With regard to what has to be pleaded. His Lordship Abdul Hamid Mohamad discussed the point in two different contexts, namely, (a) where the alleged defamatory statement is made in the same language of the court, and (b) where the language of the statement is in a foreign language and not the language of the court (as here). With regard to the position where the statement made is in the same language of the court His Lordship said (at p 3648 (AMR); p 890 (MLJ)):
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Regarding what has to be pleaded, it appears that, where the words have not been published as in British Data Management Plc v Boxer Commercial Removals Plc and the plaintiff is asking for an injunction to prevent the publication of the statement (the exact wording is not yet known), as stated in Gatley "the rule may be slightly relaxed". In such a case the words must be set out "with reasonable certainty". In that case Hirst LJ in fact borrowed the terms from Denning LJ in Collins v Jones [1955] 2AII ER 145 and added that that was the "correct test". However in Collins v Jones the words had been published, but the plaintiff had not seen it. True that Denning LJ used the term "reasonable certainty" but His Lordship also said "she must show what the actual words were". It is understandable that where the words have not been published, it is not possible to plead the actual words. So the test of "reasonable certainty" is a correct test to apply in such a case. But, where the words have been published and are obtainable before the commencement of the action, on the authorities, it appears to me that the actual words must be pleaded. What if the words have been published but the letter, for example, cannot be obtained after a reasonable effort is made prior to commencing the action? In my view, in such a situation the "reasonable certainty" test should be applied. However, having filed the action, the plaintiff should ask for the document to be produced and having obtained it, amend his statement of claim to set out the exact words. [emphasis added] |
With regard to the position where the language of the statement is in a foreign language and not the language of the court (as here). His Lordship Abdul Hamid Mohamad said (at p 3649 (AMR); p 891 (MLJ)):
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We will first look at the Malaysian authorities. In Hassan v Wan Ishak [1961] MLJ 43 the alleged defamatory words were spoken in Malay, not the language of the court at that time, which was English. Those words in Malay were not set out in the statement of claim. However, the then Court of Appeal held that it was not fatal. In Lim Kit Siang v Ling Liong Sik [1975] 5 MLJ 523, it is clear that the alleged statement was not spoken "in the language of the court". The language of the court must be Malay and the language spoken must be other than Malay. The learned judicial commissioner (as she then was) held that the "exact words as uttered .... must be reproduced in the original language with a certified translation in the language of the court, in the absence of which the claim will fail". In Workers' Party v Tay Boon Too [1975] 1 MLJ 47 (Singapore High Court) the alleged defamatory words were spoken in Hokkien and in Singapore the language of the court is English. Chua J held that the alleged statement "must be set out in the statement of claim in the foreign language precisely as spoken and followed by a literal translation. It is not enough to set out the translation without setting out the original or vice versa". The learned judge relied on Gatley on Libel and Slander. The position in England is as stated in Gatley relied on by Chua J above. So, besides the Court of Appeal judgment in Hassan v Wan Ishak [1961] MLJ 45, authorities are clear that the statement must be set out in the original language in the statement of claim. I prefer that view. [emphasis added] |
Pausing here for one moment, it is clear to me from what the learned judge was just quoted as saying, that the Court of Appeal in Karpal Singh accepted the proposition that the defamatory statement must be set out in the original language in the statement of claim. The Court of Appeal did not follow the decision in Hassan v Wan Ishak on the point.
At the expense of some repetition, I should point out here that in Karpal Singh the defamatory statement was set out in the original language (English) in the statement of claim and a translation in the language of the court (Malay) was also pleaded in the statement of claim. Accordingly the Court of Appeal was not there concerned with what the consequence in law would have been if the defamatory statement had not been set out in the original language in the statement of claim i.e. would it be fatal? But some guidance is given by the Court of Appeal on how to approach such a question. In Karpal Singh the second issue before the court was whether certified translations needed to be provided. When considering the second issue before it the Court of Appeal noted that not every offending word that was used by Mr. Karpal Singh in his press statement was used by the newspapers or set out in the statement of claim but the court noted that despite the omission of those words in the statement of claim, "no one can argue that the meaning of what is reported and pleaded are different from what the press statement says" because the Court of Appeal found that the material words pleaded are substantially the same as the undisputed words used in the press statement. In having to address this omission in DP Vijandran's statement of claim, and consider whether it was fatal, this is what the Court of Appeal said at pp 3631-3632 (AMR); p 893 (MLJ):
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Lest we get lost in the "technical jungle", let us remind ourselves what these "rules" are for. In the first place, there is neither statutory provision nor rules of court that the actual words must be pleaded in toto failing which the action fails, no matter what. The so-called "rules" are developed by judges though their judgments. We have seen that under certain circumstances the "rule" was relaxed. We must look at the purpose, what prejudice it causes to a defendant in putting up his defence, in short, the justice of the case". |
The Court of Appeal then went on to consider whether there was any prejudice suffered by Mr. Karpal Singh by the omission and found there was none in that case. This is what Abdul Hamid Mohamad JCA said at p 3652 (AMR); p 894 (MLJ):
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In the circumstances, I am of the view that even though the press statement was not quoted in toto in the statement of claim, the failure to do so, in the circumstances of this case, is not fatal. I say so for the following reasons:
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Keeping at the forefront of my mind what was said in Karpal Singh's case and guided by the approach taken in that case, I return to consider the first question for decision. As I said before, it is an indisputable fact that the plaintiff has not in his statement of claim, set out in their original language the alleged defamatory statement or words used by the defendants. He has merely set out a translation of them in English in his statement of claim which, according to the case law referred to and approved of by the Court of Appeal in Karpal Singh's case, he cannot do. Accordingly I find the plaintiffs omission has rendered his statement of claim to be fundamentally flawed.
The next question I must ask myself is, is his failure to plead the actual words complained of fatal to his case? To answer this question I must consider the justice of the case and whether the defendants have suffered any prejudice by the omission.
On the question of prejudice, I think it is important to keep in mind that this question arises in the context of an allegation of libel. In this regard I respectfully agree with the views expressed by Low Hop Bing J in Abu Samah Omar v Zainal Montel [2004] 5 MLJ 377 that special attention is required when drafting pleadings in defamation suits. At p 381 the learned judge said:
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The tort of defamation i.e. libel and slander require a special treatment in so far as the drafting of the pleading is concerned, in particular the plaintiffs statement of claim. A classic illustration has been set out in Bullen & Leake and Jacob's Precedents of Pleadings, at p 623 as follows:
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In my judgment when considering whether any prejudice has been caused by an omission in the pleadings, it is also important that the court keep in mind the purpose behind pleadings and what matters require to be pleaded before a cause of action can be said to be disclosed by the pleadings. As far as the latter is concerned. Order 18 r 7(1) requires that every pleading must contain material facts but not evidence, and sub-rule (2) states that "without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated except in so far as those words are themselves material". As will be seen shortly, the latter part of this rule which I have highlighted applies in libel cases.
In Darbyshire v Leigh [1896] 1 QB 554, this is what Lord Esher MR. had to say about English Order XIX r 21, (which is the equivalent of our Order 18 r 7(2) of the RHC) in the context of a libel suit (at p 557):
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Order XIX r 21, provides what is to be the proper method of pleading where a material fact is evidenced by a document. By that rule it is provided that "whenever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material ...." There is no doubt that in the case of a document alleged to be a libel the latter part of the rule would apply, because in that case it is clear that it would not suffice to state the effect of the document, but the precise words must be stated. I will not say that this part of the rule is confined to the case of libel. [emphasis added] |
The rationale behind the rule requiring all material facts to be set out in the pleadings is not only for the purpose of formulating a complete cause of action (see Bruce v Odhams Press Ltd [1936] 1 All ER 287, p 294) but also to enable the opposite parry to know the case he has to meet. In the case of libel this is what Gatley on Libel and Slander, 9th edn had to say on the matter at p 652:
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Setting out words complained of: Libel. In a libel the words used are the material facts and must therefore be set out verbatim in the statement of claim, preferably in the form of a quotation: it is not enough to describe their substance, purport or effect. |
Now, reverting to the facts of this case, it is plain to me that the material facts of the case have not been pleaded at all, in that, the actual words in the language they were used in the 4 newspaper articles complained about have not been set out in the at all in the statement of claim. The defendants complain that they are embarrassed and severely prejudiced in their defence by the plaintiffs failure to do so, in that, they do not know the case they have to meet because without the actual words which are complained of being set out in the statement of claim in the language in which they were used, the defendants are unable to know what or which particular Chinese word was being translated or whether what the plaintiff alleges to be a translation is in fact a correct or accurate translation of the actual words they are alleged to have written, printed and published. The defendants complain that they are embarrassed in their defence because they are not in a position from reading the pleadings to know what are the original words which the plaintiff finds defamatory, so that they can raise an appropriate defence e.g. admit that such a word was used but that it did not have the meaning attributed to it by the plaintiff or even deny totally ever having published such words, or, admitting such words but saying they were published on an occasion of qualified privilege, or were true or fair comment or justified etc. In my view the defendants are fully justified in their complaint that they have suffered prejudice by the plaintiffs omission. In this regard I refer to what Hirst LJ said in British Data Management Plc v Boxer Commercial Removals Plc, supra, at p 717:
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It is important to bear in mind the purpose of a statement of claim. It is to enable the defendant to know the case he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved. In a libel case, the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail. Next, a number of questions may arise on defences which the defendant may wish to raise, for example a plea of justification, which depends on whether the words are true or false and similarly mutatis mutandis in the case of a plea affair comment. This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have. Equally, unless the words are so pleaded the defendant will not be able to determine whether the words in their alleged meaning or other perceived meaning are true, or fair comment, and plead accordingly. Moreover, whenever an injunction is sought, such particularity is needed to enable the court to frame an injunction defining with reasonable precision what the defendant is restrained from publishing. This is why there must be in all cases be reasonable certainty as to the words complained of, or in the case of a quia tinit injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect. Only on this basis can the case proceed properly through the interlocutory and pleading stages of trial, and then to the formulation of the questions to be put to the jury and to a proper answer to them. [emphasis added] |
In my view the plaintiffs failure to set out in his statement of claim the original words in the foreign language in which it was used is fatal to his case as the omission has occasioned substantial prejudice to the defendants in their defence for the reasons I gave earlier. The nature of the prejudice caused to the defendants is not one that can be compensated by an award of costs — it has occasioned substantial injustice to the defendants as they have been deprived of knowing the true case they have to meet) and what defences they should raise which are basic and fundamental rights of every defendant.
I would also say that this is not a case where the "rule" should be relaxed because this is not a case where the offending words have not been published yet and publication is only threatened as in British Data Management Plc v Boxer Commercial Removals Plc, or the words have been published, but the plaintiff has not seen it, as in Collins v Jones in which event the court may relax the rule and instead allow the words complained of to be set out with "reasonable certainty" in the statement of claim. I do not find this to be the case here because here the 4 publications have been published, they were known and were obtainable before the commencement of this action. As the Court of Appeal said in Karpal Singh's case (at p 3648 (AMR); p 890 (MLJ)):
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It is understandable that where the words have not been published, it is not possible to plead the actual words. So the test of "reasonable certainty" is a correct test to apply in such a case. But, where the words have been published and are obtainable before the commencement of the action, on the authorities, it appears to me that the actual words must be pleaded. [emphasis added] |
The plaintiff has attempted to justify his having pleaded only the translated version of the actual words complained of by contending that Order 92 r 1(2) of the RHC states that in the case of Sabah and Sarawak, any document required for use in pursuance of the rules shall be in the English language. Therefore the plaintiff contends that firstly, it would be against the above rule to plead the original words in Chinese in the statement of claim; and secondly, if the original words had been pleaded in Chinese, the judge would be unable to come to any decision simply because he himself was unable to understand it. In support, counsel for the plaintiff cited Syarikat Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1993] 2 AMR 2154; [1994] 2 MLJ 420. I do not agree with this submission. It lacks any substance. I am here concerned with a matter of pleadings in a libel suit, and what words need to be pleaded in a statement of claim. I am not concerned with the language in a document required for use as an exhibit, which is what Order 92 r 1(1) and (2) are concerned with. As far as the former of the two matters just mentioned is concerned, the authorities all show that if the defamatory words are alleged to have been spoken or written in a language other than the language of the court these words must be set out in their original form in the pleadings and in addition a translation of them into the language of the court should be pleaded. As far as the case of Syarikat Telekom Malaysia Bhd is concerned, it is of no assistance to the plaintiff here because what was said in that case is irrelevant here. In that case a book compiled, published and printed in the Chinese language was produced as an exhibit in an application for an injunction. The Supreme Court held that Order 92 r 1 of the RHC "is a mandatory provision which requires that any document not in the national language or in the English language be translated into the national language before it could be admitted as an exhibit. Therefore, in this case, the book could not be admitted as an exhibit and without it, the appellant's claim failed".
In the course of his submissions counsel for the plaintiff referred me to Tiong King Sing v Justine Jinggut [2003] 6 AMR 110; [2003] 7 CLJ 433, where the Miri High Court held that a failure to plead the actual words used in the language they were used is not fatal in a libel action. With respect, for the reasons I have already given I respectfully decline to follow that decision. The court there held that the question whether the exact words complained of, which were in Chinese, should be set out in the statement of claim is not an issue for determination under Order 18 r 19(1)(a) RHC, but I am here determining an issue under Order 14A. Also, the learned judge in that case felt bound by Hassan v Wan Ishak. I do not feel so bound because I am more persuaded by the reasoning of the court in Karpal Singh. I also find that Hassan v Wan Ishak is distinguishable.
Here the defendants have taken the point of pleading as a preliminary issue. The matter has not gone to trial yet and so I am not concerned with what needs to be proved at the trial which is what the court in Hassan concerned itself with and formed the basis of its decision. Further, in this case, unlike the situation in Hassan's case, the defendants question the accuracy of the translation, and they dispute that any words they have written or published are defamatory or capable of bearing defamatory meaning.
For all the above reasons I find, in the circumstances disclosed in this case, that the failure of the plaintiff to plead the actual words complained of in their original language to be fatal to his case; it has caused substantial prejudice and occasioned substantial injustice to the defendants in the preparation of their defence. On this ground alone the plaintiffs claim must be dismissed with costs as disclosing no reasonable cause of action and which might embarrass the fair trial of the action.
Second question of law
With regard to the second question which the court was asked to determine, namely, whether the statements and words which the plaintiff complains of as being defamatory of him (a translation of which are set out in paragraphs 7, 11, 16 and 19 of the statement of claim) were published by the defendant? It is well settled that one of the elements in an action in libel which a plaintiff must prove, is that the words complained of were published by the defendant. In this regard l refer to Gatley on Libel and Slander, 7th Edn at pp 103 and 104 where paragraph 221:
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221. |
General principles No civil action can be maintained for libel or slander unless the words complained of have been published. "That material part of the cause of action in libel is not the writing, but the publication of that libel". By "publication" is meant "the making known of the defamatory matter, after it has been written, to some person other than the person to whom it is written". |
Useful reference may also be made to Halsbury's Laws of England, 4th edn, vol 28 at p 32 at paragraph 60 which states:
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60. |
Need for Publication No action or prosecution for libel will lie unless there has been a publication. In a civil action for libel the plaintiff must allege and prove that the defendant published or caused to be published "of and concerning the plaintiff", the words complained of to a third person, namely of some person other than the plaintiff. [emphasis added] |
The above general principles regarding the requirement for a publication by a defendant of the defamatory words complained of is also a part of the law of defamation in Malaysia and this is well illustrated in the cases of Ayob Saud v TS Sambanthamurthi [1989] 1 MLJ 315 and S Pakianathan v Jenni lbrahim [1988] 2 MLJ 173 at p 178.
Given the fact that here the plaintiff has not set out in his statement of claim the actual words which he complains is defamatory of him, but only a translation thereof, I just do not see how he can maintain that the defendants published or caused to be published the words complained of or how he is able to prove the publication of the offending words when he has not even set them out in his statement of claim. Accordingly I agree with Mr. Sim Hui Chuang of counsel for the defendants that no action for libel will lie against the defendants since the plaintiff will be unable to prove that the defamatory words which he complains about have been published when those words are not set out in his statement of claim. On this ground too the plaintiffs claim must be dismissed with costs as disclosing no reasonable cause of action.
In an attempt to get himself out of the difficulty he faces because of his failure to plead the actual words used in the language in which they were used, the plaintiff affirmed an affidavit on June 9, 2005 and produced as exhibits cuttings of 4 newspaper articles in Chinese which allegedly contain the first, second, third and fourth publications and also supplied their translation in English. According to the plaintiff he produced the 4 newspaper cuttings "to remove beyond all possible doubts as to the fact of their publication".
With all respect I think the plaintiff has missed the point. The law is that he must first plead the actual offending words in their original language before he can prove that those words were published. By simply producing the cuttings of 4 newspaper articles in Chinese in which the 4 offending publications are allegedly found, I do not see how such production helps the plaintiff to overcome the fundamental flaw in his pleadings because he still has not pleaded anywhere in his statement of claim the actual words in the language in which they were used. Put in another way, it is futile to try to prove the publication of words which have never been pleaded in the first place.
Since the determination of these two core issues is sufficient to determine the entire claim of the plaintiff I do not see any need to go any further to consider the (iii), (iv), (v), (vi) and (vii) issues which the defendants have asked the court to decide.
In the result I would, in the exercise of the powers vested in the court by Order 14A of the RHC, and for the reasons given, dismiss the plaintiffs claim with costs.
Cases
Abu Samah Omar v Zainal Montel [2004] 5 MLJ 377, HC; Ayob Saud v TS Sambanthamurthi [1989] 1 MLJ 315, HC; British Data Management Plc v Boxer Commercial Removals Plc [1996] 3 All ER 707, CA; Bruce v Odhams Press Ltd [1936] 1 All ER 287, CA; Collins v Jones [1955] 1 QB 564, CA; Darbyshire v Leigh [1896] 1 QB 554, CA; Hassan v Wan Ishak [1961] MLJ 45, CA; Karpal Singh Ram Singh v DP Vijandran [2001] 3 AMR 3625; [2001] 3 CLJ 883, CA; Lim Kit Siang v Ling Liong Sik [1975] 5 MLJ 523, HC; Pakianathan, S v Jenni lbrahim [1988] 2 MLJ 173, SC; Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2003] 5 AMR 697, CA; Syarikat Telekom Malaysia Bhd v Business Chinese Directory Sdn Bhd [1993] 2 AMR 2154; [1994] 2 MLJ 420, HC; Tiong King Sing v Justine Jinggut [2003] 6 AMR 110; [2003] 7 CLJ 433, HC; Workers' Party v Tay Boon Too [1975] 1 MLJ 47, HC
Legislations
Federal Constitution: Art.10
Rules of the High Court 1980: Ord.14A, Ord.18, Ord.33, Ord.92
Rules of the Supreme Court [England & Wales]: Ord.14A
Authors and other references
Gatley on Libel and Slander, 7th edn
Gatley on Libel and Slander, 9th edn
Halsbury's Laws of England, 4th edn, vol 28
Representations
CF Siew (Awang Chua Voon Ting Ronald & Co) for plaintiff
HC Sim (Reddi & Co) for first, second, & third defendants
Notes:-
This decision is also being reported at [2006] 3 AMR 596.
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