Jurisdiction: MALAYSIA

IN THE HIGH COURT IN SABAH & SARAWAK

AT KUCHING

Parties: Plaintiff: ELVIN TOH CHEN VIN (M)

Defendants: (1) SIN CHEW MEDIA

CORPORATION BERHAD
(2) EDITOR, SIN CHEW DAILY

File Number: CIVIL SUIT NO. 22-114-2007-III

Issues: (1) Is there a need to set out the exact defamatory

words in the statement of claim.

(2) Principle of striking out pleadings discussed.

Hearing Dates: 8/1/2008; 14/3/2008; 27/5/2008

Date of Decision: 27/5/2008

Judge: YA TUAN DAVID WONG DAK WAH

Representation: For Plaintiff: Mr. Mohd. Ivan Bin Hussein

Messrs Ivan Hussein & Co.
Advocates
Kuching

For Defendants: Mr. Sim Hui Chuan

Messrs Reddi & Co. Advocates
Kuching
 [S-22-114-2007-III]

JUDGMENT

Application

The Defendants have taken out an application to have certain questions

determined under O. 14A, or alternatively to have the Writ and Statement of

5 Claim struck out under O. 18, r. 19 Rules of the High Court, 1980. The

questions of law are as set out by learned counsel for the Defendants as

follows:-

1. Whether the actual words complained of or alleged to be

defamatory and published by the Plaintiff in paragraphs 3 to 11 of
10 the Statement of Claim, must be pleaded or set out in the original
language (i.e. in Mandarin) in the Statement of Claim;

2. Whether the various alleged causes of action based on the matters

complained of in paragraphs 3 to 9 respectively, in the Statement
of Claim, are barred by the Limitation Ordinance (Cap.49) of
15 Sarawak ; and

3. Whether the said words pleaded in paragraph 12 by the Plaintiff

have been sufficiently pleaded and if so whether they are or are not
capable of any one or more or which of the meaning or meanings
attributed to them, as their natural and ordinary meaning.
20
Question 1 Must the words complained of be set out in the Statement of
Claim.

Mr. Sim Hui Chuang, counsel for the Defendant, submitted that the law

25 specifies that the alleged defamatory words must be clearly set out in the
2
 [S-22-114-2007-III]

Statement of Claim. As authorities, he cited the case of Karpal Singh Ram

Singh v D.P. Vijandran [2001] 3 CLJ 871 at 890 and 891 where Abdul Hamid

Mohamad JCA said:

It is understandable that where the words have not been

5 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
10 pleaded. .........

So, besides the Court of Appeal judgment in Hassan & Anor v.

Wan Ishak & Ors [1961] 27 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.

15 Mr. Sim also referred to the judgments of Clement Skinner J in Ng Kim Ho v

Chai Sze Shin & 2 Ors Suit 22-25-2005-I and Sulaiman Daud J (as he then

was, now JCA) in Dato Seri Tiong King Sing v Datuk Justine Jinggut (2003) 7

CLJ 433.

In the Dato Seri Tiong King Sing v Datuk Justine Jinggut (supra), the learned

20 Judge decided that the omission to plead the actual words so spoken or

published was not a fundamental defect nullifying the pleadings and that

although the alleged defamatory words were not stated in the Statement of

3
 [S-22-114-2007-III]

Claim in the original language of publication, such publication was specifically

referred to in the Statement of Claim.

In the Ng Kim Ho v Chai Sze Shin & 2 Ors (supra), the learned Judge took a

different view and his reason can be seen in his judgment at page 22:

5 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
10 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.
15
Applying the principle of substantial prejudice as set out by Clement Skinner J,

I am of the view that the Plaintiff had not caused such prejudice to the

Defendant as the Plaintiff had annexed copies of the publications to the

Statement of Claim. I cannot think of any other way how the Plaintiff could

20 have set out the original words in the Chinese language in the Statement of

Claim.

Accordingly I find that the Defendants application to strike out the Plaintiffs

Statement of Claim on the just mentioned ground to be without merit.

4
 [S-22-114-2007-III]

Question 2 Should the alleged causes of action set out in paragraph 3 to 9

of the Statement of Claim be struck out on the ground that
they are statute barred.
5
From the outset, Mr. Sim set out the dates of publications as follows:

Paragraph in
Date of alleged publications
Statement of Claim
3 25.1.2005
4 25.1.2005
5 26.1.2005
6 26.1.2005
7 27.1.2005
8 29.1.2005
9 1.2.2005

These dates are not disputed by the counsel for the Defendant, Mr. Mohd. Ivan

Bin Hussein and since this Suit was commenced on 16.7.2007, which is over 1

10 year, Mr. Sim submitted that these causes of action are statute barred as Item 10

of the Schedule to the Limitation Ordinance specifies that for compensation

for libel the period of limitation is one (1) year and time from which the period

begins to run is when the libel is published.

Mr. Mohd. Ivan however pointed out that there were two other publications

15 which appeared in Sin Chew Daily on 20.7.2006 and 20.1.2007 (paragraphs 10

and 11 of the Statement of Claim) and these claims are not statute barred. Based

on that he submitted that if one reads paragraph 10 of the Statement of Claim

5
 [S-22-114-2007-III]

carefully, it refers to earlier publications, hence the publications on 20.7.2006

and 20.1.2007 cannot be read in isolation. Further he submitted that the

Defendant is estopped from pleading limitation in respect of the publications in

paragraphs 3 9 of the Statement of Claim by virtue of its conduct and relied

5 on the case of Alfred Templeton & Others v Low Yat Holdings Sdn. Bhd. &

Anor [1989] 2 MLJ 202.

The principle as to when the Court will strike out pleadings is well established.

Suffice for me to say that the Court will only exercise that power only in plain

and obvious case. In my view, Mr. Mohd. Ivan has shown that this is not a

10 plain and obvious case. Not only that, I am of the view that even if I strike out

paragraphs 3 9 of the Statement of Claim, this Court will still need to have a

full trial to dispose of this case. And if the Plaintiff appeals to the Court of

Appeal against that decision, this case will no doubt be delayed. It would be

more economical for the Court and the parties involved to deal with the whole

15 case in one installment and that is what I intend to do. Furthermore no prejudice

is caused to the Defendant as it will be able to raise the same argument in the

trial as I have not yet made any decision as to the issues raised.

6
 [S-22-114-2007-III]

Question 3 Whether the said words pleaded in paragraph 12 have

been sufficiently pleaded if so, whether they are capable of
any of the meaning(s) attributed by the Plaintiff.

5 In my view, the said words could only mean what had been set out in the

particulars of paragraphs 3 11 of the Statement of Claim. As to whether they

are capable of the meanings attributed by the Plaintiff is an issue which should

be left for the full trial.

Conclusion
10 In view of my conclusion to the above issues, the Defendants Summons in

Chambers dated 25.9.2007 is dismissed with costs to be taxed unless agreed to

the Plaintiff.

15
(Y.A. TUAN DAVID WONG DAK WAH)
High Court Judge

20

Notice: This copy of the Court's Reasons for Judgment is subject to formal
25 revision.