HER CHOR SIONG 1. ) CUSCAPI BERHAD 2. ) ANTHONY GERALD A/L R. VICTOR

WA-22NCvC-542-09/2023 Kand. 53 26/04/2024 08:30:57 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL SUIT No: WA-22NCvC-542-09/2023 BETWEEN HER CHOR SIONG [NRIC No: 720526-01-5713] … PLAINTIFF AND 1. CUSCAPI BERHAD [COMPANY No: 198701006160/43190-H] 2. ANTHONY GERALD A/L VICTOR [NRIC No: 700113-10-6141] … DEFENDANTS DECISION [1] The Plaintiff filed a suit for defamation against the Defendants based on a letter dated 24.9.2018 from the First Defendant signed by the Second Defendant (the Chief Executive Officer at the material time). The letter was addressed to Hitachi Limited Tokyo (Hitachi Tokyo) and its wholly owned subsidiary Hitachi Systems Digital Services Pte Ltd Singapore (Hitachi Singapore). The letter was a complaint and a ‘Without Prejudice’ proposal to the litigation initiated by the latter against the First Defendant 1 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal (and also Cuscapi Malaysia Sdn Bhd (CMSB)) under Kuala Lumpur Suit No. WA-22NCvC-399-09/2018 (Suit 299) which was filed two weeks prior. The Plaintiff took offence to the following contents in the said letter: • “Her Chor Siong (HCS) the former Chief Executive Officer of CP and a director of CMSB, was working together with Ong Chin Hui (“Joshua”), a director of Hitachi Singapore, to defraud CB & CMSB; • That there is a large amount of secrecy surrounding the 23/9/2016 “Agreement”. The usual formalities are not preset, for example, witnesses; • Joshua and HCS had teamed up to earn a secret profit at the expense of CMSB and CB; and • Hitachi Singapore, together with Joshua, assisted HCS in his breach of fiduciary duties to CMSB and CB.” [2] This letter was sent pursuant to Suit 339 which was a claim for a sum of approximately RM3,600,000 against the First Defendant as the corporate guarantor for the purchase of REV tablets by CMSB vide an agreement dated 23.9.2006. The corporate guarantee was signed by the Plaintiff for the First Defendant. The purpose of the letter was for a constructive resolution to the legal suit – Suit 339. There was no resolution. Then a month later, on 29.10.2018 the First Defendant (together with CMSB) filed its Defence and Counterclaim against Hitachi Singapore, the Plaintiff and Joshua. The Defence and Counterclaim reiterated the statements above. As a public listed company, the First 2 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant had also made an announcement on 29.10.2018 of its pending litigation. The statements in the letter were repeated. On 28.12.2018 the First Defendant (together with CMSB) lodged a police report. They further lodged a complaint with the Malaysian Anti-Corruption Commission (MACC) on 11.4.2019. In this suit, the Plaintiff alleged that All these actions showed malice and bad intentions on the part of the Defendants to harm his reputation and defame him. [3] On 31.12.2020 after a full trial of Suit 339, the High Court had allowed Hitachi Singapore’s claims and dismissed the First Defendant’s (and CMSB’s) counterclaim. Presently criminal proceedings pursuant to a charge pursuant to MACC’s investigation against the Plaintiff is on-going. The Second Defendant was called as a witness for the Prosecution on 6.11.2023 to 8.11.2023. Just before that, the Plaintiff filed this suit. The counsel for the Defendant submitted that the Plaintiff knew that the Second Defendant was to testify in the prosecution against him when the Plaintiff filed this action on 29.9.2023. [4] As informed by the First Defendant to the Plaintiff in response to the latter’s letter of demand prior to the filing of this suit, the allegation of defamation was refuted as the words and the contents of the letter are protected by absolute privilege. Hence, this application by the Defendants vide Enc 9 to strike out the Plaintiff’s suit on the grounds that it does not disclose a reasonable cause of action. This is because the foundation of the Plaintiff’s cause of action for tort of defamation heavily rested on the alleged defamatory words contained in the letter. 3 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal Absolute privilege [5] In assessing whether the Defendant’s submission that absolute privilege is a complete defence to the alleged defamatory words in the letter, this Court considered the well-established legal principles enunciated in Royal Aquarium v Parkinson [1892] 1 QB 431 at p451: “The authorities establish beyond all question that neither party, witness, counsel, jury, nor judge, can be put to answer civily or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel ,witnesses, or parties, for words written or spoken in the course of any proceedings before any court recognized by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will, to check any abuse of it by those who appear before them. It is, however, a privilege that ought not to be extended. It belongs in my opinion, to courts recognized by law, and to such courts only.” [6] This principle extends from all that are uttered, testified, commented on, and adduced in/during legal proceedings. The letter, which was issued pursuant to the legal proceedings Suit 339 commenced by Hitachi Singapore falls squarely within the scope of absolute privilege. The letter 4 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal arose from Suit 339; the contents showed that the letter would not be issued otherwise. Opposed from what the Plaintiff has submitted which was the principle was meant to cover the solicitors involved and thus the principle did not apply to the letter, the principle of absolute privilege is a protection for the parties too. An excerpt of the decision in Lincoln v Daniels [1961] 3 All ER 740 at p749 is reproduced for easy reference as follows: “How, then, is it contended that its proceedings are affected by absolute privilege enjoyed by the Bench of an Inn? The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v M’Ewan, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White, the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.” 5 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal [7] Our Court of Appeal in S Ashok Kandiah & Anor v Dato Yalumallai Muthusamy & Anor [2011] 1 CLJ 460 at p470-472; [2010] 3 MLRA 109; affirmed that absolute privilege is attached to statements made in the course of judicial proceedings – whether oral or written, whether the proceedings take place in open court or in private, whether the proceedings were before a court of justice or tribunal exercising such function, or whether they are of final or preliminary character. The Court of Appeal’s decision further illustrated the extent of the legal principle of absolute privilege – the defence applies no matter whether the statements were made maliciously. At p472 the Court of Appeal acknowledged that: “It is ideal to remember that the legal consequence of absolute privilege is this. That whether the words are relevant or irrelevant, true or false, malicious or bona fide, the action must be regarded as baseless and frivolous (Fitzherbert v Acheson [1921] NZLR 265, 269 SC).” [8] The counsel for the Plaintiff in objecting to the Defendants’ application to strike out his suit argued that the letter was not written by their solicitors addressed to his solicitors. This Court does not find any merit in that argument. As per the authorities above and in particular the Court of Appeal’s decision, any letter that was produced pursuant to legal proceedings as with the letter here, is an absolute privilege. It is not a requirement that the letter must be authored by a solicitor or addressed to another. The penultimate issue is whether the contents of the letter were made in the course of judicial proceedings which in this case, was with no doubt whatsoever. The Plaintiff’s submission that the letter was a personal letter and that it was not a pre-cursor to the Counterclaim filed in Suit 339 belied the facts at hand. The letter was considered and specifically 6 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal mentioned in the High Court’s grounds of judgment for Suit 339. The position of the First Defendant was never inconsistent. It had pleaded the same facts stated in the letter in his Defence and Counterclaim in Suit 339. It must be accorded the liberty to put up its defence and position for the court to adjudicate Suit 339, without fear that it would be liable for defamation suit. The principle of absolute privilege acknowledges this public policy consideration. [9] The Federal Court in Noor Azman bin Azemi v Zahida bt Mohamed Rafik [2019] 3 MLJ 141; [2019] 3 CLJ 295; [2019] 2 MLRA 259; [2019] 2 AMR 421; upheld that the defence of absolute privilege provides a complete defence and the action ought to be struck out for disclosing no reasonable cause of action. In that case, the respondent had lodged a police report against the appellant for the contended missing moneys and thereafter responded to reporters as she left the police station by repeating the contents of her police report. Those words eventually metamorphosed an article in one of the newspapers. The appellant sued the respondent for defamation and the High Court had ruled in his favour. The Court of Appeal overturned the High Court’s decision on the basis that the words in the police report which were regurgitated in the newspaper article attracted the same privilege as the police report. The appellant thereafter obtained leave from the Federal Court for the question of law as to whether the publication of the contents of a police report by its maker to the public at large was protected by absolute privilege. At p153, the Federal Court ruled: “An important point to note is that the preset appeal is solely focused on the defendant’s defence of absolute privilege as encapsulated in the question of law. 7 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal In considering this appeal, at the outset, it is necessary to bear in mind that the law recognizes that on public policy consideration, on certain occasions a person should be able to speak or write freely and should be free from accountability by way defamation suit even though it was published with full knowledge of its falsity and even with the intention of injuring the plaintiff. When the defence of absolute privilege applies in certain situations, it offers complete protection and the defamation action will be struck out for disclosing no reasonable cause of action. If the occasion is absolutely privileged, then it will be complete defence to a defamation action even if the statement was actuated by malice…” [10] The doctrine of stare decisis results in this Court applying that principle of absolute privilege with regards to the letter which formed the basis of the Plaintiff’s suit here. This means the Plaintiff has no reasonable cause of action and this suit ought to be struck out. Refer to Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; [1993] 1 MLRA 611 and Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1; [2016] 2 MLRA 263; [2016] 3 CLJ 1; [2016] 2 AMR 795. The letter and all the other documents reiterating the said contents that the Plaintiff categorically termed as malicious actions are all inherently related to the judicial proceedings of Suit 339. They all (the reports and announcement) can be said to arose out of or was incidental to or ancillary to Suit 339. As decided in Chan Tse Yuan & Co v Yap Chin Gaik, Elaine & Ors [2017] MLJU 1459 at para 112-115: “Thus, regardless of the alleged merits of the plaintiff’s claim for defamation, if the situation or occasion is one which the law 8 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal recognizes as being protected by absolute privilege, then the defence of absolute privilege would be denuded and emasculated if the plaintiff’s action for defamation is not struck out and dismissed summarily. The judgment of Ma JA in Roger Wong’s case, makes it clear that the defence of absolute privilege is, “as the name suggests, absolute privilege in nature. It will provide a complete answer to any claim for defamation even where the relevant remarks are completely untrue or made with malice.” Thus, it is the law that a claimant in a suit for defamation will be without a remedy if absolute privilege succeeds. There is no purpose in going for trial, when the facts/events in support of the defence of absolute privilege are undisputed. This brings me to the issue of whether the plaintiff had notified D3 that they had applied for and received the refund of the stamp duty sum. This may be seen from the plaintiff’s letter dated 21 July 2016, where the plaintiff appears to have notified Fantastic Megaway Sdn Bhd that they had received the stamp duty of RM8,445,561.00 and that they had deducted a sum of RM2,368,582.29 and that the balance sum of RM6,076,978.71, will be held in a fixed deposit account pending instructions for the release of the balance sum. ~ To conclude, in the present case, for the reasons as discussed above, I am impelled to the view that the defence of absolute privilege applies to protect the defendants from liability for defamation arising out of publication of the impugned letter to Messrs. Chew Biman as it:- 9 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) arose out of or was incidental to or ancillary to the taxation OS and was necessary to uphold the public interest in the administration justice; (b) a letter which is the precursor to and which initiated suit 810; (c) necessary to prevent a flank attract being made by the plaintiff against D3 in the taxation OS or by way of the instant action in defamation,” [11] The counsel for the Defendants had also submitted at length on qualified privilege in the event this Court was not agreeable to the application of absolute privilege. This Court deems it is not necessary to address that as it finds absolute privilege applies in this case. For the record, the High Court in Suit 339 had dismissed the First Defendant’s Counterclaim. The Plaintiff can be said to have been vindicated. Yet, he had chosen to launch this suit on the contents stated in the letter that are shielded by absolute privilege. So, the Plaintiff’s suit tantamount to an abuse of court process and rightly ought to be struck out under Order 18 Rule 19 Rules of Court 2012 (RoC). [12] This Court finds a peculiar feature to the Plaintiff’s suit. His SoC that pleaded the alleged defamatory contents of the letter was said to have been published to the two addressees – Hitachi Tokyo and Hitachi Singapore. The Plaintiff claimed that the words inferred he was a cheat who had embezzled money, that he had abused his position when he had executed the corporate guarantee for the First Defendant sans witnesses 10 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal and without the approval from the Board of Directors, that he was not morally sound, and had breached his fiduciary duties amongst others. However, the contents of the letter were reiterated in the Defence and Counterclaim, referred to in the High Court’s grounds of judgment, and also summarized in the announcement. All these are published to a wider audience, so to speak, as opposed to the publication of the letter which was addressed to Hitachi Tokyo and Hitachi Singapore. What is in the public domain is that the contents of the letter were not proven and thus not successfully proven against him according to the finding of the High Court in Suit 339. In other words, the High Court had adjudicated the matter and made a finding in the Plaintiff’s favour. The Plaintiff was a litigant in Suit 339. He cannot pursue a subsequent action for defamation based on the matters that formed part of the fact in issue/subject matter of Suit 339 that were determined after a full trial. [13] The Defendants’ application to strike out the Plaintiff’s suit is allowed. With absolute privilege applied to the letter, the Plaintiff has no reasonable cause of action. In awarding costs, this Court took into account the facts and circumstance of this suit and the proceedings of the Defendants’ application to strike out the suit. The award for costs is not meant to punish the Plaintiff but must be reflected reasonably in the circumstances. The counsel for the Defendants prayed for an amount of RM30,000 which was based on a client-solicitor basis. They had reminded that the criminal action is still on-going and thus the Plaintiff had abused the court process by alleging mala fide on the part of the Defendants for lodging complaints to the police and MACC. This Court considered the Defendants’ submissions and also the Plaintiff’s plea that RM5,000 would 11 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal be sufficient. It is ordered that costs of RM10,000 is granted to each of the Defendants. DATED 4 APRIL 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR For the Plaintiff: Chew Kok Soon & Tan Yee Chian T/n KS Chew & Associates For the Defendants: Mohamed Izzul Faris Mohd Ghani & Muhammad Nabil Nafis T/n Syed Ibrahim & Co. 12 S/N RYq4UMRtHkOxh5OLljRutw **Note : Serial number will be used to verify the originality of this document via eFILING portal