Nagandran A/L Kalianna Gaundar v Melinda Alison Monteiro, 28-03-2011
| Judge | Rosilah Yop |
| Judgment Date | 28 March 2011 |
| Court | High Court (Malaysia) |
| Record Number | S4-23-42-2003 |
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
WILAYAH PERSEKUTUAN
[BAHAGIAN SIVIL]
GUAMAN NO: S4-23-42-2003
ANTARA
NAGANDRAN A/L KALIANNA GAUNDAR …PLAINTIF (berniaga dibawah RAJU RESTOREN)
DAN
1 MELINDA ALISON MONTEIRO
2 TBWA, ISC MALAYSIA SDN BHD
3 BANK OF AMERICA MALAYSIA BERHAD …DEFENDAN
GROUNDS OF JUDGMENT
Brief facts
The Plaintiff is suing the Defendants for defamation as a result of the alleged statements made by the 1st Defendant published in the Internet on 5 November 2001. The Plaintiff is the sole proprietor of a restaurant known as Raju Restaurant. The 1st Defendant is the employee of the 2nd Defendant The 2nd Defendant is a company incorporated under the Companies Act 1965.
Alleged Defamatory Statements
The alleged defamatory statements are as set out in Para 6(b) of the Statement of Claim. The statements are in the form of an e mail and marked as ID3.
The Law
In Progressive Insurance Sdn Bhd v. RM Insurance Underwriting Agency Sdn Bhd & Ors [2003] 5 CLJ 321, Ramly Ali J has referred to the decision by Mohamed Dzaiddin J (as he then was) in the case of Ayob Saud v. TS Sambanthanmurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321 as having clearly laid down the necessary burden in establishing a claim for libel. In that case, His Lordship Mohamed Dzaiddin J had stated the law to be as follows:
In our Law on libel, which is governed by the Defamation Act, 1957, the burden of proof lies on the Plaintiff to show:
i) the words are defamatory;
ii) the words refer to the Plaintiff; and
iii) the words were published.
The Plaintiff must first discharge the onus of proving that the statements complained of were defamatory of the Plaintiff. Only upon the Plaintiff establishing this would the burden then rest on both Defendants to prove that those statements are in substance and in fact true. (See: Supreme Court decisions in S Pakianathan v. Jenni Ibrahim [1988] 1 CLJ 771; [1988] 1 CLJ (Rep) 233 and Abdul Rahman Talib v. Seenivasagam & Anor [1966] 1 LNS 5; [1966] 2 MLJ 66).
Only if these elements are established, then it can be said that prima facie the words are defamatory of the Plaintiff. Only then would it become necessary to consider the defences and the Plaintiff's answers thereto.
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Were the statements defamatory of the Plaintiff?
In this case it was established that the statements complained of was in the e mail, ID3, refers to the Plaintiff’s business since the Plaintiff was referred to by his business name.
It is disputed that the e mail, ID3, was sent out by 1st Defendant and was published to the third person. So the first issue was whether the statements are defamatory of the Plaintiff? There are a long line of authorities on what test to be applied to determine whether the statements are defamatory or not. In Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56, wherein Mohamed Azmi J (as His Lordship then was) states:
Thus, the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right thinking members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.
In Dato' Musa bin Hitam v. S.H Alattas & 2 Ors [1991] 2 CLJ; 487 (Rep); [1991] 1 CLJ 314, under held (1), Lim Beng Choon J held:
The test as to whether the words complained of were defamatory or not is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libelous sense. The test is objective and the question is what the words mean as word and not what the defendant in his own mind meant by them or intended to mean. The fact that the person to whom the words were published might not believe them to be true is irrelevant and does not affect the right of action although it might affect the question of damages.
Admissibility of ID3
Before I proceed to consider the issues raised, it is pertinent for me to keep in mind the principles of law governing the admissibility of evidence. In particular this relates to document marked ID3 in this action.
The crux of the claim is found at Para 6 of the Statement of Claim. It is pertinent to note that, ID3 is the most crucial document and the Plaintiff is relying on this document to prove his claim.
It cannot be denied that during the trial, the Plaintiff has referred to an e mail, ID3, the document which was marked as ID. It is so because the maker of this document was not called as a witness. But oral evidence was led by counsel for the Plaintiff with regard to this document. The question is, without proving the content of the document (ID3) can the oral evidence be admitted in evidence?
In Allied Bank (M) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33 at page46, states that:
“It is settled law that where a document is sought to be proved in order to establish the truth of the facts contained in it, the maker has to be called (see R v. Gillespie [1967] 51 Cr App Rep 172; R v. Plumer [1814] R & R 264; Hill v. Baxter [1958] 1 QB 277; R v. Moghal [1977] Crim LR 373). Non compliance with this rule will result in the contents of the documents being hearsay. The evidential effect of a document which has not been properly proved was described by Abdoolcader J (as he than was) in PP v. Datuk Hj Harun Hj Idris & Ors [1977] 1 LNS 92; [1977] 1 MLJ 180 at page 183 in the following terse terms:
“It is necessary to refer to certain exhibits which have been put in the course of these proceedings for identification but have not in fact been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely, D41 and D43 which were both put in for identification only ... As these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall accordingly disregard references to them and also all oral testimony as well adduced in relation thereto ..”
PW, that is the Plaintiff himself testified in examination in chief that:
“…by a letter dated 23.5.2002(P2) Bank of America disclosed that the 1st Defendant has an e mail address as Alison@iscbwp.po.my and upon the same being checked by my accountant, it was discovered that it was the 1st Defendant’s e mail address provided by 2nd Defendant as an employee.
…………
I have many Chinese customers who patronize my restaurant. One of them was Mr. Teh Yoong Yang and Cheang Hung Kok. …After having their lunch, Mr. Teh Yoong Yang paid the bill and gave me a copy of an e mail address to him and Mr. Cheang Hung Kok .
He ( Mr. Teh Yoong Yang ) told me that the e mails sent to his e mail at Bank of America. He downloaded a copy and photostatted the same to be given to me.”
Mr. Teh Yoong Yang who gave a copy of the e mail which forms the subject document in the Plaintiff claim was never call as a witness.
Lord Normand in Teper v. Regina [1952] 2 All ER 447 and Lord Reid in Myers v. Director of Public Prosecution [1964] 2 All ER 881 reminds of the dangers of relying on hearsay evidence, more so in the case of oral evidence. The rule against hearsay is generally invoked to exclude evidence as proof of a fact which has been stated by a third person who is not called as a witness and cannot be tested by cross-examination.
As for the evidence of PWI, it falls foul of the rule of hearsay in so far as ID3 is concerned. It is PW1’s evidence that ID3 was given to him by Mr. Teh Yoong Yang who was not call to give evidence.
Mr. Teh Yoong Yang must be called by the Plaintiff as a witness. PW1 does not have personal knowledge regarding the transactions of the said e mail. Thus, the evidence of Mr. Teh Yoong Yang is the most important being the backbone of the Plaintiff’s case.
There was no evidence adduced that an attempt had been made to locate Mr. Teh Yoong Yang.
In the premises the evidence of Mr. Teh Yoong Yang is critical for the Plaintiff not only to establish that ID3 was given to him but the Plaintif has to prove that Mr. Teh Yoong Yang is the person who downloaded it from the computer and gave it to him.
It is the Plaintiff evidence that the content of the e mail which was given to him by Mr. Teh Yoong Yang that defamed him. Further, there was no evidence adduce whether, it was the same e mail tendered in court.
It was the Defendants who challenged the truth of the content of ID3. The onus therefore was on the Plaintiff to adduce evidence otherwise.
The fact remained that the court at the end of the whole case, had to determine the truth of the content of ID3 and the weight to be given to it.
As he is not available to give evidence on these matters, I disregard ID3 as well as the oral evidence relating to the same.
Based on the decision in the case of PP v. Allied Bank and Datuk Hj Harun above, this court rejected ID3 as evidence on the ground that Mr. Teh Yoong Yang was not called to give evidence as such ID3 is hearsay and cannot be admitted as evidence. As such the Plaintiff...
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