DALAM MAHKAMAH TINGGI MALAYA DI ALOR SETAR DALAM NEGERI KEDAH DARUL AMAN [GUAMAN SIBIL NO: 22-86-2008]

ANTARA KULDIP SINGH ATMA SINGH DAN 1. 2. KANASON KRISHNASAMY TAN SIE ENG DEFENDANDEFENDAN PLAINTIF

CIVIL PROCEDURE: Pleadings - Defence - Alternative defence Defendants denied publishing notice and any defamatory meaning attached to it - Whether if defendants denied putting up notice, they ought to not have an alternative - Whether defendants' alternative pleading was consistent with their earlier response - Whether an alternative defence was permissible TORT: Defamation - Defamatory statements - Whether defendants wrote and put up a notice outside the front wall of their house next to plaintiff's house - Whether notice was defamatory - Whether notice referred to plaintiff - Whether notice was published by defendants to a third party - Defendants denied writing notice - Whether such notice existed - Whether others could have had opportunity of putting up notice outside defendants' house - Whether defendants had reason for such a notice as no incidence of lost letters - Whether element of publication proved [P!"#$%#&&'( )"(* +#(,#((*+ -#%. )/(%(.] 0"(*1(2 3*&*33*+ %/: Abdul Khalid Khalid !afri bin "a#ar $hah v% Party &slam $e 'alaysia ( )rs *+,,+- . '/! .0, (refd)
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1ho# 2oo 1how v% 3he 1hina Press *.444- . 1/! 50. (foll) /ee Ah /an v% /ee Kim /an 1onstructions &ndustries $dn "hd ( Anor *+,,6- . '/! 5,4 (refd) O%.*3 (/43)*1(2 3*&*33*+ %/: Gatley, /ibel and $lander Ninth edition 1998, page 7

GROUNDS OF 5UDGMENT 1. Plaintiff and Defendants stay in houses next to each other, Plaintiff in

house No. 391 and Defendants who are hus and and wife in house No. 39!. "heir houses in relation to each other and the neigh ourhood are as shown in #undle $, page 1. Plaintiff is suing Defendants for defa%ation. &n paragraph ' of (tate%ent of $lai% Plaintiff says in Dece% er )!!7 Defendants wrote and put up a notice outside the front wall of their house next to Plaintiff*s house +the notice,. "he notice is worded as follows-.
73n% Posman, $ila masu##an surat #ami dalam peti pos pintu gate sebelah% Di sini 8iran mencuri surat-surat #ami% Dua bulan sudah tida# ada surat9%

2.

/ photograph of the notice is in #undle D1, page 1. Defendants oxes. 1 gate faces 0alan 1e%uning 121!

house has ) gates and ) letter

which is a dead end and the other 0alan 1!. /ccording to 3irst Defendant +D1, ased on the photo in undle D1, page 1 the notice was put up on the pillar to the gate facing 0alan 1e%uning 121!.

6.

Plaintiff clai%s the words in their natural and ordinary %eaning %eant

or were understood to %ean he had stolen their letters or was a thief and refers to hi% as he is the neigh our. &t also has the effect of lowering his reputation. &n paragraph 8 of (tate%ent of $lai% Plaintiff then states his reputation and credi ility as the director of a well 4nown co%pany with clients worldwide had een in5ured and he had een su 5ect to ridicule, conte%pt, distress and e% arrass%ent. Plaintiff thus see4s inter alia general, special, aggra6ated and exe%plary da%ages.

7.

Defendants deny writing and putting up the notice and that the notice

refer to Plaintiff.

8.

&t is well settled law that in order to pro6e a clai% on defa%ation 3 e esta lished . +1, the state%ent %ust e defa%atory, +), e

ele%ents %ust

the state%ent %ust refer to Plaintiff and +3, the state%ent %ust pu lished y Defendants to a third party.

.*%.*3 %.* $/%#)* +*&","%/39 6. /s to what constitutes defa%ation & refer to Gatley on /ibel and

$lander Ninth edition 1998 at page 7-.

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."% #( +*&","%/39 . "here is no wholly satisfactory definition of a defa%atory een particularly influential- +1, 8ould the

i%putation. "hree for%ulae ha6e

i%putation tend to 7lower the plaintiff in the esti%ation of right.thin4ing %e% ers of society generally9:; +), 8ould the i%putation tend to cause others to shun or a6oid the plaintiff:; and +3, 8ould the words tend to expose the plaintiff to 7hatred, conte%pt or ridicule9:9.

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<ence in the $ourt of /ppeal case of 1ho# 2oo 1how v% 3he 1hina

Press =1999> 1 $?0 @A1 the $ourt said at page @A7-.

7%%% the test which is to be applied lies in the :uestion; do the words published in their natural and ordinary meaning impute to the plaintiff any dishonourable or discreditable conduct or motives or a lac# of integrity on his part< &f the :uestion invites an affirmative response, then the words complained of are defamatory%9%

8.

/pplying the principles in =atley and 1ho# 2oo 1how >supra? the

words 7mencuri surat-surat #ami9 carries the connotation the person in Buestion is a thief and would i%pute to that person a dishonoura le or discredita le conduct or %oti6e or a lac4 of integrity there y lowering hi% in the esti%ation of right.thin4ing %e% ers of society generally. "he notice is therefore defa%atory.

.*%.*3 %.* $/%#)* 3*&*3( %/ P!"#$%#&& ;. "he notice uses the words 78iran mencuri surat-surat #ami9 . Plaintiff ac4 row there are @ houses. &n

stays next door to Defendants and their house is at the corner. /long their row there are ) other houses and at the Abdul Khalid Khalid !afri bin "a#ar $hah v% Party &slam $e 'alaysia
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( )rs =)!!)> 1 C?0 1A! it was stated that it was not necessary that the words should refer to the plaintiff y na%e, pro6ided that the words would e understood y reasona le people to refer to the plaintiff. & would say that Plaintiff eing the only i%%ediate neigh or to Defendants is the 78iran9 referred to in the notice. /s such the notice refers to Plaintiff.

.*%.*3 %.* $/%#)* -"( <4=!#(.*+ =9 D*&*$+"$%( %/ " %.#3+ <"3%9 10. Plaintiff states Defendants wrote and put up the notice so%eti%e

>se#itar? in Dece% er )!!7. &n the light of Defendants denial of ha6ing written the notice the $ourt has first to consider whether there was indeed such a notice. 11. &t is Plaintiff*s e6idence he saw the notice so%eti%e in late Dece% er

)!!7 . DE/ )3 of 8itness (tate%ent +P1,. &n DE/ 31 and 3) he lodged a police report on 1).1.)!!8 +P', and the reason he too4 so %any days was he was usy and had clients fro% o6erseas. 8hen cross exa%ined on when so%eti%e in Dece% er he saw the notice, he said this was around )! t h or )1 s t . 8hen referred to his police report where he said 7early Dece% er9, his reply eca%e 7early Dece% er and late Dece% er9. 8hen as4ed further he said so%eti%e in Dece% er. "o a Buestion whether it was late or early Dece% er he answered he could not re%e% er the date ut it was early Dece% er. 12. Plaintiff had in6ited P83 +(ara6anan a2l (u ra%ania%, to his house

in Dece% er )!!7 and P83 saw the notice. "his was after $hrist%as, on )A th or )7 t h .
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P8) +Pardip (ingh Casawan a2l 1uldip (ingh, Plaintiff*s son, said he

saw the notice so%eti%e in late Dece% er )!!7. P8) also has a house in Penang and off and on he stays at his parents house. <e was una le to re%e% er the exact date he saw the notice or if it was early or late Dece% er ut it was efore $hrist%as. 8hen P83 was in6ited to the house around $hrist%as he was there. 17. P83 is Plaintiff*s client who% he has 4nown since 1993. <e said

so%eti%e in Dece% er )!!7 when he was with Plaintiff going to Plaintiff*s house in Plaintiff*s car he saw the notice. &n cross exa%ination he saw the notice on )7.1).)!!7. Fn that day there was no function or party and P8) was there. <e first said he went in his own car and par4ed opposite the neigh our*s house. <e then said he went in Plaintiff*s car. 18. D81 +/h%ad GHHat in &s%ail, stays at house No. 389 at the ac4 of

Defendants house. <e and D1 are acti6e %e% ers of the neigh ourhood Iu4un "etangga. <is e6idence in chief is he did not see the notice. &n cross exa%ination he said the notice would Defendants house through the front entrance. 16. D8) +<er%ara5an a2l Cuniandy, stays at house No. @!1 0alan e at the gate facing ?orong ecause he did not enter 1e%uning 1 and agreed he did not see the notice

1e%uning 1! opposite Defendant. <e and D1 are acti6e %e% ers of the neigh ourhood Iu4un "etangga. <is e6idence in chief is he did not see the notice. &n cross exa%ination he said he goes to Defendants house on an a6erage of ).3 ti%es e6ery %onth. <e went in late )!!7 ut was not sure how %any ti%es a wee4 he went. <e uses the %ain gate. <e
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disagreed in late )!!7 he did not use Defendants %ain entrance when 6isiting and disagreed he did not use the road at 0alan 1 1e%uning. <e further disagreed he did not see the notice ecause he did not go there. &n re exa%ination he said he went to Defendants house to discuss on %atters pertaining to Iu4un "etangga as he was the "reasurer and D1 the $hair%an. 1:. D83 +1hairol NiHa% in Nahar, was the post%an in "a%an

1e%uning which is part of the $3 Hone in 1uli% in Dece% er )!!7. <e has een a post%an since )!!@ and was wor4ing in $3 Hone for a out a year efore his transfer in 3e ruary )!!8. <e 4nows (econd Defendant as she signs the registered letters. &n respect of house 39! there are ) letter ox at 0alan 1e%uning 121! and 0alan 1e%uning 1!. <e uses the ) as at his con6enience. 8here there are no letters for the residents of 0alan 1e%uning 121! he will put letters at the letter ox at 0alan 1e%uning 1!. <e did not see the notice. D18 is the letter of confir%ation as a post%an. "here were no co%plaints of lost letters. 18. &n cross exa%ination he said he could not produce the duty roster to

confir% what he stated. <e agreed he was not a le to recall what happened as he was 5ust told of the case. &n re exa%ination he said the duty roster was arranged y the <ead. <e confir%ed not ha6ing seen the notice at any ti%e while deli6ering letters. 1;. D8@ +Custafa in Cd 0a4aria, stays at house No. @!! in front of

?orong 1e%uning 1. <e and D1 are acti6e %e% ers of the neigh ourhood Iu4un "etangga. <is e6idence in chief is he did not see the notice. <e
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identified D83 as the post%an for the area. &n cross exa%ination he said the notice would e at the %ain gate and agreed he did not see the notice ecause he did not enter Defendants house through the front entrance. 20. #oth Defendants denied putting up the notice. Naturally they also

denied ha6ing seen such a notice. #oth their cars are par4ed inside the house and in the course of co%ing in and out of the house they didn*t see any notice. "he ) letter ox are for their con6enience and the post%an. &n Dece% er )!!7 they had no pro le%s recei6ing letters. &n 0anuary 1998 the ) gates were already there when they %o6ed in. 21. "here was dia%etrically opposing e6idence fro% oth parties and

their witnesses. /s

etween Plaintiff, P8) and P83 they saw the notice

on different dates. "his difference is not critical as the assertion is the notice was put up in Dece% er )!!7 and they could ha6e seen it on different days. & will not e considering the e6idence of P8@ who saw the notice on 1@.1.)!!8 and P8' on '.1.)!!8. 22. <owe6er the discrepancy in dates as to when Plaintiff saw the notice

is critical as he is the one who clai%s to e defa%ed and the notice is the core issue. "his goes towards his credi ility. Plaintiff first says so%eti%e in Dece% er )!!7, then )! t h or )1 st , then early and late Dece% er, followed y can*t re%e% er ut early Dece% er. Plaintiff*s police report puts it as early Dece% er. &f & ta4e early Dece% er as the date on which Plaintiff saw the notice, the Buestion arises whether it is possi le for P8) and P83 to ha6e seen it on the %entioned dates. "his is ecause no e6idence was led as to how long the notice had een left there since it was
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put up in Dece% er )!!7. "he Buestion also arises why Plaintiff too4 his ti%e to lodge a police report. &f indeed he had een 7accused9 of stealing letters he should ha6e not ha6e let wor4 stand in his way of lodging a police report. 26. "urning now to the e6idence of Defendants, & will not ta4e into

consideration the e6idence of D81 and D8@ who agreed they did not see the notice at the %ain gate as they used the side gate. D8) stood his ground and said he did not see the notice and that he used the %ain gate. & then had the e6idence of the post%an D83 who did not see the notice. Plaintiff tried to challenge his e6idence y his <ead. 3urther he had y Buestioning his ina ility to eing arranged y D8@ as the post%an for produce the duty roster. D83 was a le to explain this as een identified

their area. /s for D83 agreeing he could not recall what had happened as he was 5ust told of the case, he had also said he 4nows the case. & do not accept Plaintiff contention Defendants had told D83 what to say as there is no reason why he should do that. & do not dou t his e6idence and ha6e no difficulty in accepting it coupled with the fact of hi% eing a disinterested party. "he e6idence of D8), D83 and that of Defendants point towards there eing no notice. 27. 3or the a o6e reasons, as etween the e6idence of Plaintiff and

Defendants & prefer that of Defendants*. "here was no such notice. 28. 3urther the fact that the notice was outside Defendants house does

not necessary %ean they put it up. "his is ecause others could also ha6e the opportunity of doing so. 3urther there was no reason for such a notice
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to e put as there were no incidents of lost letters and this is supported y the e6idence of Plaintiff, Defendants and D83.

26.

/s for Plaintiff*s contention the ) nd letter ox was put up as the notice ox at the %ain gate, this is not supported y the

had co6ered the letter e6idence.

2:.

Plaintiff also su %itted that Defendants in their reply to the Notice of

De%and had denied the defa%atory %eaning and now in their Defence are putting up an alternati6e. &f they did not put up the notice they ought not to ha6e an alternati6e and y so doing goes towards their credi ility. ?oo4ing at the reply in undle #, page 19 Defendants ha6e denied pu lishing the notice and any defa%atory %eaning attached to it. "heir alternati6e pleading is consistent with their earlier response and there is nothing wrong in an alternati6e defence. &n /ee Ah /an v% /ee Kim /an 1onstructions &ndustries $dn "hd ( Anor =)!!3> 1 C?0 @!9 an issue for the court*s deter%ination was whether the application of second defendant to a%end would pre5udice the first defendant*s defence. /t page @1' the court said-.
7... the second defendant as a party is perfectly entitled to arrange or conduct her defence or pleadings in the est way to ser6e her interest as the ut%ost priority, and indeed without any due regard whatsoe6er to the interest of any other party.9.

(o also in this case.

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0/$)!4(#/$ 28. /s the third ele%ent of pu lication which is writing of the notice has

not een pro6ed Plaintiff*s case is dis%issed with costs .

D"%*+: )@ /PI&? )!11

1SEE MEE 0HUN2 Pesuruh5aya 1eha4i%an Cah4a%ah "inggi /lor (etar

2or the plaintiff - @archaran $ingh Aa8ar $inghB 'Cs Deenath, Kirpal ( @archaran Pegua% ela dan Pegua%cara (uite 1.!), 1 s t 3loor, (ri 8eld 3/ Peng4alan 8eld 1!3!! Pulau Pinang 2or the defendant - K Kumaran >!annu "ab8an with him?B 'Cs Kumar ( 1o Pegua% ela dan Pegua%cara No. 1!, #ishop (treet 1 s t 3loor, (uite 1 1!)!! Pulau Pinang

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