GS Realty SDN BHD V Lee Kong Seng

Date and Time: Tuesday, 5 November, 2019 10:39:00 PM MYT
Job Number: 102028040
Document (1)
1. GS Realty Sdn Bhd v Lee Kong Seng

[2018] MLJU 1902
Client/Matter: -None-
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GS Realty Sdn Bhd v Lee Kong Seng
[2018] MLJU 1902
Malayan Law Journal Unreported
HIGH COURT (KUALA LUMPUR)

DARRYL GOON JC
CIVIL SUIT NO WA-23NCVC-44-11 OF 2017
11 December 2018
Yee Mei Ken (Tan Caitlin with him) (Shearn Delamore & Co) for the plaintiff.
Fong Fook Chuen (Fong Law Office) for the respondent.
Darryl Goon JC:

JUDGMENT
[1]This was an action in defamation brought by the Plaintiff against the Defendant in respect of publications in what
is commonly known as the social media. These alleged publications were posted on the Defendant’s Facebook
Page under his username “Vincent Lee” with the URL address being https://www.facebook.com/vincent.lee.752.
Facebook is a website that facilitates and allows social networking through the internet and the Defendant has a
Facebook account under which he maintains a Facebook Page.
The Plaintiff’s Case
[2]The Plaintiff was described as a company carrying on business, among other things, as a real estate agent. The
Plaintiff’s business model was such that it appoints many agents to represent it. The Defendant was an ex agent of
the Plaintiff.
[3]There are two categories of agents appointed by the Plaintiff. There are those who are known as Junior Agents.
There are also those who are known as Leaders and Pre-Leaders. A Leader is a senior real estate agent who has
achieved a certain sales target. A Leader has under him several Junior Agents. Among a Leader’s task is the
recruitment of a team of Junior Agents and to provide guidance and training for them. As a reward, and incentive, a
Leader is allowed a percentage of the commissions earned by his team of Junior Agents. Thus, the Plaintiff’s
business model would be highly dependent on a pyramid of individuals and the cooperation, trust and loyalty of
these individuals.
[4]On the 29th of May 2017, the Defendant was alleged to have published, of and concerning the Plaintiff, on his
Facebook Page the following in Mandarin which, as agreed by the parties and based on an official translation,
translates into the following in English:
No Time & Date The Defamatory Statements in

Mandarin & the English Translation
1. 29.5.2017 and 30.5.2017 by the “Mandarin texts”
Defendant
“Such a respectable public listed
company - Mandarin texts ((Mandarin
texts) G S Realty) can even be so greedy
for just a small sum of money! Not long
ago, for the company’s annual dinner, it
was made clear that if those leaders and
potential leaders who did not attend
would be fined RM500.00, a lot of the
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....

leaders indeed got angry but dared not
speak out, hence asked me to plead with
the company. I had since been sacked
due to this incident, subsequently it also
needed me to put forward my resignation
letter to state that it was me who wanted
to leave only then my salary would be
paid! After I have left Mandarin texts (
(Mandarin texts) G S Realty) , the
company yet kept on trying all sorts of
reasons in refusing to pay my salary!
Firstly they said: “heard from a lot of the
old leaders that you have asked them to
job-hop to your new company, hence the
company has decided to stop all the
leader and organization commission of
yours!” (What a real joke! Is there such a
life and death agreement signed between
others and you) It seems this reason is
rather too lame, now Dato you moreover
have said: “Ah! As the agent who had
worked together with you in the project
previously had advance from the
company, the company forgot to deduct
their commission from their salary, hence
now wanted to deduct your commission!”
your account department slept over it had
got nothing to do with me? Furthermore
these agents still have many more
salaries yet to be paid, that can be
deducted by then! Isn’t that the agent
who was assisting me in the project was
also people of the company? Why made
my life difficult through all means???
Initially when you were a nobody, who did
the hard work for you? You have said so
in your memoir that it was the Melaka
Hatten project that made (Mandarin texts)
G S famous, only then came along with
the subsequent projects continuously!
Who did all the front work for you? Once
you have succeeded, can you then just
forget the origin? Actually I have no
intention to claim any credit, but why
being so aggressive? I am also the
brother who shared the hard times with
you at one time indeed! What is this
about man as the principal, trust comes
first? It is indeed with a mouthful of virtue
and morality, but somehow full of tricks
behind! Surely I won’t let the matter go at
that!”
”
[5]The foregoing words, which shall be referred to as the “primary statements”, were also reproduced and published
by the Defendant in several other Facebook Pages with some differences in the opening sentence. The other
Facebook Pages in which it was said the Defendant had posted the primary statements were “Property KL”,
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....
“Investor Property”, “KL Blow Water Station”, “Melaka Top Property Investment Group” and “Hot Properties in Klang
Valley”. Many of these Facebook Pages were connected with real estate and thus, obviously, of concern to the
Plaintiff.
[6]To the primary statements published by the Defendant were responses posted by third parties, plus subsequent
additional postings and responses thereto, by the Defendant himself. They too were in Mandarin and were pleaded
in paragraph 8 of the Statement of Claim. I shall refer to these statements as the “secondary statements”. The
English language translations of the secondary statements agreed to by the parties and pleaded in the Statement of
Claim were the following:

2. 29.5.2017 by Kenny Koet in response to “Mandarin texts”
the Defendants post on 29.5.2017
“Very well worded! Some companies just
like black society, only can go in but no
way out! Stingy, not broad minded!”
3. 5.6.2017 by Anthony Chin in response to “Mandarin texts”

“If you don’t intend for the next person to
be victim, then just SHARE out fully let
him to be well known [an old fox who is
expert in eating Agent’s money] As the
boss but in fact said so in the public
social network, it is really not proper for
your status indeed! In fact I don’t want to
tell, looking at big brother Vincent’s
condition, I have to put a hand in to help
you to promote indeed! What big brother
Vincent said is absolutely correct! Yours
Mandarin texts ( (Mandarin texts) G S
Realty) indeed fond in eating! Eat! Eat!
Every one of the Agent once gets in for
sure the commission will be eaten up!
Cat Chee is able to eat so very much
nowadays, from whom she learnt from?
Having this kind of master, surely she
had done well indeed! So fatten up! And
also that busybody-LILY CHEW,
currently you are just a mere account
people! Why are you so concerned
about? Holding chicken feather but is
regarded as an arrow of authority! Is that
so what was eaten by NELSON, you
were also having a share? I think that
should be the case! Otherwise why is
this act of a hero slanting up and talking
nonsense for your good boss! When
talked about Mandarin texts (GS)’s
account, will spit! Pui! Pui! Pui! The
worst is cheating! When Agent happens
to see you, the first thing is to give you 2
slaps! Leader sees you would want to
give you 2 strikes! You better shut up! If
you were to continue saying nonsense,
uncle Lim will give you back properly!
You are fighting hard to draw attention,
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....

is that so, you want to be the No 4 of the
fucking god? Be good sisters with CAT
CHEE? I am telling you that for your
quality, actually it is no need to fight!
Now the No 5 is already in existence,
that young model.
Mandarin texts ( (Mandarin texts) G S

Realty) s Account Lily Chew! Never
come across such a person who is
handling Account like you, to be so
aggressive! Ah you think so others are
indebted to you? If it is not us - the
Agents doing the job, would you then be
able to enjoy your overseas tour to the
maximum every time? You better be
polite to your rice bowl when you talked
to them please!
It was indeed due to the group of evil

horse of you all that harmed us dared
not step in the real estate field anymore!
You - the fucking god, even had eaten
the leader’s overwriting! As the bosses,
it should be good enough for you all to
earn what is entitled for bosses! Working
for the company of you all, it is needed
to wait for a year for the commission!
Sometime 2 years! Like that we won’t be
able to leave your company forever?
You have cleverly worked it out! In that
case who else dared to get in to your
company anymore? Everything would be
eaten by you, isn’t it? I am not interested
on how much money that the company
of you all made!
The money which was entitled to us that

should be given it back to us! Yet dared
to eat the leader agent’s overwriting, yet
dared to issue Memo? You are regarded
as the most powerful indeed! For
exciting story please go to the bottom
Link to get to know the conducts of G S
Realty’s boss who is eating people, do
not spit out the bones (ruthless and
greedy) and the exciting comments! Yet
using the wife’s account to scold others!
Nonsense! What a pity to YY who had
been regarded as chess for so long yet
just kept silent”
4. 30.5.2017 by the Defendant “Mandarin texts”
“love you a little bit more everyday The

company had made it compulsory for
Agent to attend Annual Dinner
To be sent out by the Company’s

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Accountant [photo] [message]
Vincent Lee: Do everybody dare get in

(Mandarin texts) G S anymore?
I indeed had been kicked out from the

Leader Group like this, at the boss level,
those who submit will prosper; those
who resist shall perish!!!”
[Photo(s)] “love you a little bit more

everyday ( (Mandarin texts) G S YY sent
to me)”
6. 31.5.2017 and 1.6.2017 by the “Mandarin texts”

Defendant
“love you a little bit more everyday
First copy, Accountant dared say still

issuing Overriding
Have a look at the 2nd copy! And try to

ask the leader who has left (Mandarin
texts) G company whether he/she had
ever received overriding?”
7. 31.5.2017 by Canny Wong in response “Mandarin texts”

to the Defendants post on 31.5.2017
“Once got in to the gate of a noble house
is deep as the sea! Anymore Agent dare
join (Mandarin texts) G S?! The previous
hard earned Overriding can even be
seized! For those who are leaving
(Mandarin texts) G S felt painful as no
overriding”
“... I asked you, for Agents’ education

fee (those who newly join (Mandarin
texts) G company will collect 65%,
completed 15k outstanding achievement
will collect 70%, when Agent collected
65%, the company will take out RM500
as education fee)”
9. 3.6.2017 by the Kah Mun in response to “Mandarin texts”

“Aiyoyo after walloping the money did
not even blink, you can’t wrap fire in
paper, (Mandarin texts) G boss’ mask
will eventually be exposed one day. Let
everybody to clearly look at his true face,
is he human or ghost, can see clearly at
a glance!”
10. 4.6.2017 by Hor Tong Liat in response to “Mandarin texts”

Page 6 of 18
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the Defendants post on 4.6.2017 “This company haha has some bad
reputation”
[7]Although in paragraph 96 of his defence the Defendant denied publishing the impugned statements, including
those made by him, in the course of his cross-examination he acceded to the fact that he did post the primary
statements as alleged. The primary statements from the Defendant’s Facebook Page were set out in a Bundle
Marked as B1(A). The documents in this bundle were of the Defendant’s Facebook Page and other Facebook
Pages, with English translations of the impugned words. These documents were admitted into evidence on the
basis that their authenticity was not disputed but their contents were not admitted. The primary statements were set
out at the top of page 4 of Bundle B1(A). Under cross-examination, the Defendant stated thus:
“YMK Ok, look at page 4. The top post is your post, correct?
Lee Yes.
YMK This is the article that GS is suing you now for defamation. Do you know that?
Lee I know”
(see Notes of Evidence, for 14.8.2018 at p 19)
Bundle B1(A) also sets out in page 1, the Defendant’s Facebook Page. Under cross-examination, the Defendant
testified as follows:
“YMK Now Mr Lee, look at your witness statement, I am going to take you through it and at the same time referring to the
bundles. Please look at Bundle B1A. B1A, My Lord. I am referring the wintess to Bundle B1A of the defamatory statements
together with the translations. Can you please turn to page 1, Mr Lee? - Page 1 of the bundle. Can you please confirm that
this is your Facebook page?
Lee Yes, I confirmed, Yang Arif.
YMK And can you also confirm that photograph is yourself?
Lee Yes, I confirmed.”
(see Notes of Evidence for 14.8.2018 at pp 12 to 13)
Along similar lines, the Defendant did not deny the other postings under his name in the various Facebook Pages
referred to above.
[8]In addition to the foregoing, the Plaintiff also placed reliance on section 114A of the Evidence Act 1950. Section
114A(1) states as follows:
“ A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host,
administrator, editor or sub- editor, or who in any manner facilitates to publish or re-publish the publication is presumed to
have published or re-published the contents of the publication unless the contrary is proved.”
[9]The primary statements and the secondary statements were the only impugned statements pleaded by the
Plaintiff in the Statement of Claim. Read together and in context, the Plaintiff contended that the words published
clearly referred to the Plaintiff. Having regard to the English translation of the primary statements, which is not in
dispute, there are express references to “GS Realty”. It has to be pointed out however that, often, parts of the
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impugned statements would vacillate to other individuals such as a “Dato” in the primary statements and then to
one “Lily Chew” and a “NELSON” in the secondary statements.
[10]It was the Plaintiff’s contention that the impugned statements in their natural and ordinary meaning, and as a
whole, meant and were understood to mean that:
(a) Plaintif ialah sebuah syarikat yang mengaibkan;
(b) Plaintif menipu dan menyeleweng komisen agen hartanah;
(c) Plaintif mempunyai polisi yang tidak munasabah dan bertujuan untuk menjadikan agennya mangsa dengan
mengenakan denda;
(d) Plaintif menganiaya agennya dan menahan pembayaran sah seperti komisen dan komisen bertingkat daripada
agennya;
(e) Plaintif merupakan satu syarikat yang menyeleweng wang dan dana yang diperoleh oleh agennya;
(f) Plaintif ialah satu syarikat yang dikendali dengan buruk oleh bahagian akaun yang tidak kompeten;
(g) Plaintif merupakan satu syarikat yang dimiliki oleh orang yang tamak dan dengan tabiat menyeleweng wang
orang lain;
(h) Plaintif ialah satu syarikat yang beroperasi secara tidak profesional seperti satu organisasi jenayah; dan
(i) Plaintif telah melakukan kesalahan jenayah dan pecah amanah dengan menyeleweng wang sah kepunyaan
agen.”
“ English Translation:
(a) The Plaintiff is a dishonorable company;
(b) The Plaintiff cheats and embezzles commission of the real estate agents;
(c) The Plaintiff has unreasonable policy and is set to victimize its agents by imposing fines;
(d) The Plaintiff ill-treats its agents and withholds legitimate payments such as commission and overriding
commission from its agents;
(e) The Plaintiff is a company that embezzles money and funds earned by its agents;
(f) The Plaintiff is a badly managed company with an incompetent accounts department;
(g) The Plaintiff is a company owned by people who are greedy and are in a habit of embezzling monies of others;
(h) The Plaintiff is a company that operates unprofessionally like a criminal organization; and
(i) The Plaintiff has committed criminal offence and breach of trust by embezzlement of legitimate monies belonging
to the agents.”
This was pleaded in paragraph 14 of the Amended Statement of Claim. The Plaintiff contended that the impugned
statements were thus clearly defamatory of the Plaintiff.
[11]Having regard to the foregoing, the Plaintiff maintained that the tort of defamation was proved as the three
ingredients that needs to be proven, namely, that the words complained of were published, referred to the Plaintiff
and were defamatory, had been established (see Ayob Bin Saud v TS Sambanthanmurthi [1989] 1 MLJ 315 and
Dato’ Sri Dr Mohamad Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [2018] 9 CLJ 285).
The Defendant’s case
[12]The defences mounted against the Plaintiff’s claim were that the words complained of were not defamatory as
alleged, that some of the impugned statements were not published by the Defendant and in any event, the
impugned statements published by the Defendant were justified. The Defendant also pleaded a set-off against
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commissions owed to him by the Plaintiff in the event the Defendant is held liable and damages are awarded
against him.
[13]In seeking to justify his publications the Defendant sought to dissect the impugned statements into various parts
and then to justify those individual parts.
[14]In the primary statements was a reference to a fine of RM500.00 that the Plaintiff would levy against Leaders or
potential Leaders who did not attend the Plaintiff’s Charity Award Night. This was the apparent primary cause of the
subsequent postings by the Defendant which are the subject matter of this libel action. The Defendant, did not
attend the Charity Award Night. On 9th February 2017, the Finance Manager of the Plaintiff one Chew Thoo Lai
(also known as “Lily”) had sent to the GS WeChat Group informing the participants of that group that all Leaders
and Pre-Leaders were encouraged to attend the GS Charity Award Night and KL Leaders and Pre-Leaders who
were absent would be fined RM500.00. WeChat is an application that admits of a group of persons to chat by
means of text messages via their mobile phone. The Defendant maintained that when he questioned this new
policy, he was removed from the GS WeChat Group.
[15]The Defendant maintained that by his removal from the GS WeChat Group, the Defendant was in fact
terminated as an agent of the Plaintiff. The basis for the Defendant’s contention seems to be that his removal from
the GS WeChat Group effectively cut him off from all communication with the other Leaders of the Plaintiff. Being
cut-off, the Defendant was thus no longer able to obtain information of new projects and he would no longer be part
of the Plaintiff. The Plaintiff, however, maintained that the Defendant was only temporarily removed and was
subsequently added back to the GS WeChat Group.
[16]The Defendant also sought to prove that his commission was withheld pending his cessation as an agent with
the Plaintiff. The Defendant maintained, somewhat inconsistently, that he was told by one of the Plaintiff’s
employees, Jasmine Lee, that he either resign or be terminated as an agent. Pending his decision, the Defendant
maintained that he did not receive any of the commissions that he was entitled to. The Defendant maintained that
his wife was also removed from the GS WeChat Group and she too did not receive her commissions. The
Defendant maintained that eventually he and his wife tendered their resignations. The Defendant claimed he was
subsequently told to backdate his resignation to 15th February 2017 in order to reverse the RM500.00 fine imposed
on him. The Defendant maintained that he complied with this request and that was why there were two resignation
letters from him, one dated 15th February 2017 and another dated 1st March 2017.
[17]The Defendant then claimed that he was accused of approaching other agents of the Plaintiff to leave and to
join him in a rival agency known as Rina Properties. The Defendant also contended that advances that he had
given to his junior agents, before their commissions were received, were wrongly deducted from his own
commissions by the Plaintiff. Much of the Defendant’s evidence related to the alleged deduction or withholding of
his commissions.
The claim in defamation
[18]It was not disputed that the primary statements and the secondary statements referred to the Plaintiff. In any
event, based on the translations agreed to by the parties, reference to the Plaintiff was clear and so too, when the
impugned statements are considered as a whole and in context.
[19]Mohamed Azmi J (as his Lordship then was) in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad
& Anor [1973] 2 MLJ 56 at p 58 stated in clear terms that:
“… 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.”
[20]In Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393; Richard Malanjum J
(as his Lordship then was) held that the approach for considering words alleged to be defamatory:
“… is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and
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common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from
which persons can reasonably draw.”
The meaning that the impugned words convey is the ordinary and natural meaning that would be understood by
reasonable members of the public who would read them, within the context in which they appear (see Zahida bt
Mohamed Rafik v Noor Azman bin Azemi [2018] 3 MLJ 534; Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992]
2 SLR 310).
[21]Were the primary statements defamatory of the Plaintiff? As intimated, the primary statements were not wholly
of and concerning the Plaintiff. However, in the primary statements, there were indeed also allegations against the
Plaintiff and they were that the Plaintiff was greedy for a petty sum of money i.e. the RM500.00 fine, was arbitrary in
wrongfully sacking the Defendant and withholding and refusing to pay the Defendant’s “salary”. These allegations, I
would agree, meant and would be understood to mean that the Plaintiff:
(a) was a dishonourable company,
(b) had unreasonable policy and victimizes its agents by imposing fines, and
(c) ill-treats its agents and would withhold legitimate payments such as commission and overriding
commission from its agents.
[22]I do not agree however, that the primary statements went as far as to mean or could be understood to mean
that the Plaintiff company had indulged in any criminal activities as alleged, such as embezzling money or
committing breaches of trust.
[23]Of the secondary statements, the statements posted by Kenny Koet on 29th May 2017, by Anthony Chin on 5th
June 2017, by Canny Wong on 31st May 2017, who is the Defendant’s wife, and by Hor Tong Liat on 4th June 2017
could also be understood to bear the meaning referred to above.
[24]Were the defamatory imputations justified? In this regard, it is necessary to bear in mind section 8 of the
Defamation Act 1957 which provides as follows:
“8. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a
defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be
true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”
[25]In Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242,
Abang Iskandar JCA (as his Lordship then was) stated as follows:
“In relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true
or are substantially true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely
than not to be true. … A defendant is required to prove the substance of the allegation. “
[26]With regards to the fine of RM500.00, there was evidence led by the Plaintiff that this fine was intended to
encourage Leaders and Pre- Leaders of the Plaintiff to attend its GS Charity Award Night. Indeed, under cross-
examination, Lee Kong Fai the Defendant’s witness “DW3” who was a former Leader with the Plaintiff, agreed that
the RM500.00 fine was intended to encourage the attendance of Leaders. Mak Hon Leong, the Chief Executive
Officer of the Plaintiff who testified as “PW1” testified that this was very common in the real estate industry. He also
testified that fines collected would be used towards paying for overseas vacations and incentive trips for the benefit
of Leaders and Pre-Leaders although what had been collected in the past had not been sufficient, even for a single
trip. Thus, every year, the Plaintiff would have to top up the amount required for its Leaders and Pre-Leaders to
have a trip. There was, however, no evidence that the Plaintiff had collected fines and kept the money for itself to
suggest that it was “greedy”. Under cross-examination the Defendant admitted that there already existed fines
imposed for failure to attend meetings.
[27]Thus the imposition of a fine was not something entirely new to the Plaintiff. However the Defendant remained
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defiant of the idea that the Plaintiff’s imposition of the RM500.00 was not the product of greed. The following was
his response under cross-examination:
“YMK RM500. Mr Lee, I am putting it to you that it is untrue and it is also illogical for GS to be greedy for this RM500 fine.
Do you agree? GS does not, it’s illogical for GS to be greedy for this RM500.
LEE I disagree.
YMK Disagree. I am suggesting to you that this fine of RM500 was only to encourage the attendance of leaders to the
Award Night. Do you agree?
LEE I disagree.
YMK Because you know that any fine collected by the Company will be used for incentive and not for profit of the
Company. Do you agree?
LEE It’s not actually true.
YMK No.
YMK It will be used, the fine will be used for incentive for the leaders later.
LEE Not sure”
The RM500.00 that had been deducted from the Defendant’s sales commission was however refunded to the
Defendant when he left. This was admitted by the Defendant under cross-examination:
“YMK Can you please look at page 565 of B3? This is the payment voucher for refund of RM500 to you. Yes? You can
confirm that?
LEE Yes I confirm.
[28]Was the Defendant “sacked” when he queried the issue of the RM500.00 fine imposed by the Plaintiff? There
were in evidence two letters of resignation tendered by the Plaintiff. As mentioned above, the first was dated 1st
March 2017 and the second was dated 15th February 2017. Learned counsel for the Defendant contended that
when the Defendant was removed from the GS WeChat Group, that was tantamount to a termination of the
Defendant. From a practical point of view, that exclusion may mean that the Defendant was cut off from a line of
communication with the Plaintiff and its community of agents and thus, from being privy to the information
exchanged among the participants of the Group. If this was a constructive or implied termination of the Defendant,
such must surely be overridden by the Defendant’s tendering of his letters of resignation. By tendering his letters of
resignation, the Defendant must be taken to mean that his appointment was still subsisting and that he was putting
an end to it. In fact, the Defendant himself volunteered the following evidence:
“YMK When did you start?
LEE When I was kicked out from the group. When they already kicked me out from the group, it is so meaningless to
remain there. Then, I confirmed to leave the company. I’m telling the truth.”
This evidence, again, pointed to the fact that the Defendant left, rather than was terminated and this is consistent
with the Defendant tendering his letters of resignation. In fact, if true, the Defendant’s version of being given an
ultimatum to either resign or be dismissed meant that it was he who chose to resign rather than be dismissed.
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Having regard to the evidence, I do not see that there was any justification for the Defendant to assert, as set out in
the primary statements, that he was dismissed or “sacked” by the Plaintiff.
[29]There was then the allegation that the Plaintiff had failed or refused to pay him his commissions and/or had
made wrongful deductions from his commissions. In relation to the Defendant’s commissions, there was in evidence
payment of commission and overriding commission up to May 2017. There was then the issue of an advance of
some RM179,299.52 sought and received by the Defendant from the Plaintiff sometime in February 2016. Under
cross-examination the Defendant admitted to seeking this sum as an advance from the Plaintiff because he needed
the money. The Defendant however contended that this sum of RM179,299.52 was a total amount owed to him by
several other agents of the Plaintiff and there were still commissions due to these agents. As such, the Defendant
sought an arrangement with the Plaintiff that the Plaintiff would recover this sum of RM179,299.52 advanced to him
by deducting the commissions due to the agents concerned.
[30]However, at the time the Defendant resigned, there was still a sum of RM89,558.80 owing by the Defendant to
the Plaintiff. Therefore the Plaintiff deducted this sum of RM89,558.80 from the Defendant’s commission. The
Plaintiff maintained that it could not verify the amounts owed by the other agents to the Defendant. The Plaintiff’s
concern was that upon the Defendant’s leaving, they had no way of verifying the debts or amounts owed by the
other agents to the Defendant and would not be able to deduct their commissions for debts they owed to the
Defendant as these were not debts owed to the Plaintiff. There was a list with the names of the agents concerned
and the amounts owing, but this was prepared by the Defendant and within his personal knowledge. The Plaintiff
maintained that their concern was real as there was an incident where deductions were made from one Sunny
Yong’s commission towards discharging the Plaintiff’s advance to the Defendant. Sunny Yong disputed the
deduction and when asked to produce proof of the advance to Sunny Yong, the Defendant was not able to do so.
Chew Thoo Lai, who testified as “PW2”, testified that when the Defendant left the Plaintiff, several agents under him
also left. This, it was contended, also made it difficult for the Plaintiff to verify the amounts that remained owing to
the Defendant by these agents and to make the correct deductions.
[31]In his evidence, the Defendant also accused the Plaintiff of failing to pay his overriding commission. An
overriding commission is a commission that agents in senior positions, such as Leaders and Pre- Leaders, are
entitled to in the form of a percentage of the commission earned by the junior agents in their team.
[32]By a memorandum dated 1st November 2016, issued well before the Defendant’s letters of resignation, the
following was announced:
“MEMORANDUM
Please be informed that with immediate effect Negotiator who has resigned or has been terminated, he/she will not entitled
for overriding.
However, the Negotiator is still entitled to claim the commission for the sales that are made within his/her appointment
period in GS Realty Sdn Bhd.
Thank you.”
Despite this, the Defendant was still paid his overriding commission in April of 2017, even though he had tendered
his resignation. The following was the Defendant’s testimony under cross-examination:
“YMK Mr Lee, we were on the issue of payment of overriding commission to you. I just want to refer you very quickly to the
document. Look at page 565 of B3.
LEE Yes.
YMK Yes. You saw this yesterday. This was GS payment of overriding commission to you in April 2017. Correct?
LEE Yes
…
Page 12 of 18
....
YMK And, you can also confirm that this was paid before your writing of the article on 29th May?
LEE Correct.”
Therefore the Defendant was paid his overriding commission.
[33]The Defendant called six witnesses. They were mainly supporters of the Defendant who, like the Defendant,
had left the Plaintiff to join Rina Properties. They, however, provided no material evidence in regard to the
justification pleaded by the Defendant specifically in regard to the primary statements made by the Defendant.
[34]Ultimately I find that the Defendant’s plea of justification was not established. I find that the claim in defamation
was therefore made out by the Plaintiff against the defendant, in so far as the primary statements are concerned.
The 3rd party postings
[35]In the Defendant’s Facebook Page, there were also the secondary publications which included postings by third
parties. Is the Defendant to be responsible for the postings of others in his Facebook Page?
[36]Godfrey v Demon Internet Ltd [1999] 4 All ER 342 was a case concerning an internet service provided, which
offered a Usenet facility. Usenet was the precursor of the many internet fora that are widely used today. It facilitates
discussions and sharing of files via newsgroups. Authors would submit articles, which were also known as postings,
to the Usenet server based at the local service provider, who then disseminates the postings via the internet. These
postings would then be placed on a “newsgroup”, which would ultimately be distributed and stored in the servers of
other service providers. In his judgment at p 347 of the report, Morland J stated as follows:
“At common law liability for the publication of defamatory material was strict. There was still publication even if the publisher
was ignorant of the defamatory material within the document. Once publication was established the publisher was guilty of
publishing the libel unless he could establish, and the onus was upon him, that he was an innocent disseminator.
The principle in Day’s case was applied by the Court of Appeal in Emmens v Pottle (1885) 16 QBD 354 at 357, where Lord
Esher MR said:
‘But the defendants did not compose the libel on the plaintiff, they did not write it or print it; they only disseminated that
which contained the libel.
The question is whether, as such disseminators, they published the libel? If they had known what was in the paper,
whether they were paid for circulating it or not, they would have published the libel, and would have been liable for so
doing. That, I think, cannot be doubted. But here, upon the findings of the jury, we must take it that the defendants did
not know that the paper contained a libel.’
In the golf club notice board case, Byrne v Deane [1937] 2 All ER 204 at 212,; [1937] 1 KB 818 at 837, Greene LJ said:
‘Now, on the substantial question of publication, publication, of course, is a question of fact, and it must depend on the
circumstances in each case whether or not publication has taken place. It is said that, as a general proposition, where
the act of the person alleged to have published a libel has not been any positive act, but has been merely the
refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general
proposition. It may very well be that, in some circumstances, a person, by refraining from removing or obliterating the
defamatory matter, is not committing any publication at all. In other circumstances, he may be doing so. The test, it
appears to me, is this: having regard to all the facts of the case, is the proper inference that, by not removing the
defamatory matter, the defendant really made himself responsible for its continued presence in the place where it had
been put?’
Page 13 of 18
....
In my judgment the defendant, whenever it transmits and whenever there is transmitted from the storage of its news server
a defamatory posting, publish that posting to any subscriber to its ISP who accesses the newsgroup containing that posting.
Thus every time one of the defendant’s customers accesses ‘soc.culture.thai’ and sees that posting defamatory of the
plaintiff there is a publication to that customer.”
(Emphasis added)
[37]Godfrey was cited with approval in Stem life Berhad v Mead Johnson Nutrition (Malaysia) Sdn Bhd & Anor
[2013] MLJU 1582. However, the decision in Godfrey was distinguished in Bunt v Tilley and others [2006] 3 All ER
336 at p where Eady J held as follows:
“[21]
In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus
on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant’s knowledge
can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when
there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should
not accrue. So too, if the true position were that the applicants had been (in the claimant’s words) responsible for ‘corporate
sponsorship and approval of their illegal activities’.
[22]
I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of
words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has
long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC
549 at 562:
‘A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the
contents. The appellant in this case never intended to publish.’
In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day.
It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that ‘publication’.
[23]
Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still
less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of
knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of
publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.
(See also in this context Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR.)”
(Emphasis added)
Bunt was a case where the libelous statements were posted on websites and apart from those who posted the libel,
liability for libel was also sought against the internet service provided. The Court in Bunt struck out the claim against
the internet service provider.
[38]Closer to the facts of the case at hand is the case of Murray v Wishart [2014] NZCA 461;; [2014] 3 NZLR 722.
Wishart wrote a book called Breaking Silence. It was about a woman named Macsyna King. King was the mother of
twins who died from non-accidental injuries. The twin’s father was charged with their murder but was acquitted. The
murder trial generated considerable public interest. Murray learned of Wishart’s book and he established a
Facebook Page called “Boycott the Macsyna King book”. He then posted comments on his Facebook Page and
also on twitter criticizing Wishart and King. Comments were also posted in his Facebook Page by other people.
Page 14 of 18
....
Murray and his wife were sued. One of the causes of action pleaded against Murray was in respect of third party
statements made by persons posting comments on his Facebook page. Murray applied to strike out this particular
cause of action. The High Court at first instance refused to do so. It drew an analogy with a noticeboard and held
that the person with the power over it will be liable if they knew of the defamatory statements, or ought to have
known of the statements, and did not remove them within a reasonable time. On this issue the Court of Appeal
concurred, in part, with the decision of the High Court but held that constructive knowledge was not sufficient to affix
liability. In the judgment of O’Regan P and Ellen France J:
“[144] These concerns lead us to conclude that the actual knowledge test should be the only test to determine whether a
Facebook page host is a publisher. That is consistent with at least some of the authorities to which we have referred,
(Sadiq v Baycorp (NZ) Ltd,95 A v Google New Zealand Ltd96 and Davison v Habeeb97) and with the Law Commission’s
analysis.98 It conforms with the approach in Byrne v Deane, which is, we believe, the most appropriate analogy and with the
decision in Urbanchich v Drummoyne Municipal Council.”
[39]In eschewing the constructive notice or “ought to know test”, the Court of Appeal in Wishart itemized several of
its concerns. These were set out in its judgment as follows:
“Our concerns about the ought to know test
[136] Having determined that there is no precedent requiring us to adopt the ought to know test, we now turn our attention
to the desirability of doing so. We have a number of concerns about applying the ought to know test to the host of a
Facebook page.
[137] The first concern is that, as Mr Rennie submitted, the ought to know test puts a Facebook page host who does not
know of a defamatory comment on the page in a worse position than a host who actually does know. The latter will not be a
publisher of the comment until a reasonable time for its removal has elapsed (and will not be a publisher at all if he or she
removes it in that time). The former will be a publisher from the moment the comment is posted and unable to avoid that
consequence by removing the comment from the Facebook page.
[138] The situation will be more complicated when a Facebook page host who ought to know of a defamatory comment on
the page actually becomes aware of the comment. On the actual knowledge test, he or she can avoid being a publisher by
removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it
will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the
ought to know test he or she is a publisher as soon as the comment is posted. This seems to us to make the test very
difficult to apply.
[139] The second concern is that the ought to know test makes the Facebook page host liable on a strict liability basis,
solely on the basis of the existence of a defamatory comment. Once the comment exists, he or she cannot do anything to
avoid being treated as its publisher.
[140] It can be argued that the ought to know test is not entirely a strict liability one, because it applies only where the
circumstances are such that the host should reasonably anticipate the posting of a defamatory statement. That is akin to
making the host liable for the defamatory comment because he or she has been negligent in not taking steps to prevent the
defamatory comment being made. Imposing liability for damage to someone’s reputation on the basis of negligence rather
than an intentional act is contrary to the well-understood nature of the tort of defamation as an intentional tort.92
[141] The third concern arises from s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Defining the boundaries
in this area of the law must be done with proper regard to the need to balance the right of freedom of expression affirmed in
s 14 against the interest of a person whose reputation is damaged by another. In 92 Bell-Booth Group Ltd v Attorney-
General [1989] NZCA 9;; [1989] 3 NZLR 148 (CA) at 155-156. our view the imposition of the ought to know test in relation
to a Facebook page host gives undue preference to the latter over the former.
[142] The fourth concern is that the ought to know test is uncertain in its application. Given the widespread use of
Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can
regulate their activities to avoid unanticipated risk.
Page 15 of 18
....
[143] The fifth concern is that the innocent dissemination defence provided for in s 21 of the Defamation Act would be
difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all
aimed at old media and appear to be inapplicable to internet publishers. This problem was highlighted by the Law
Commission, which recommended that the defence be extended to ISPs.93 That has not been done and, in any event, a
Facebook page host is not an ISP and so would not benefit from such a change even if it were made. This can be
contrasted with the law of Hong Kong, as described in the Oriental Press Group Ltd case.94 There, the host of the internet
discussion forum was found to be a publisher, but was able to invoke the common law innocent dissemination defence. The
unavailability of the defence is a factor in favour of limiting the scope of the concept of “publisher” in the present factual
context.”
The third concern, the balancing of the right to freedom of speech and the right of an individual not to be defamed,
expressed by the Court in Wishart is of equal importance to us as both freedom of speech and the law of
defamation are enshrined in our Federal Constitution.
[40]In Wishart, the Court of Appeal found that closely analogous to postings on a Facebook Page are postings on a
wall in a club, which is under the control of the club such as was in the case of Byrne v Deane [1937] 1 KB 818. In
Byrne the English Court of Appeal held that there was publication by the club’s secretary who admitted seeing the
defamatory statement on the wall of the club but saw no harm in allowing it to remain for some days. Although
Byrne was not held applicable to internet platform providers by the Hong Kong Court of Final Appeal in Oriental
Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47, it nevertheless recognised Byrne as authority for
the following propositions:
“44. The Byrne v Deane line of cases may therefore be viewed as authority for the following propositions:
(a) Where a third person writes or affixes a statement defamatory of the plaintiff on the occupier’s property without
the occupier’s knowledge, the occupier is not treated as a publisher of that statement prior to his becoming aware
of it.
(b) Once the occupier discovers its existence, he may be treated as a publisher but only if, having the power to do so,
he does not remove or obliterate the offending statement in circumstances which justify inferring as a matter of
fact that by his inaction he has consented to or ratified its continued publication.
(c) Where the occupier becomes aware of the libel but the circumstances show that removal or obliteration is very
difficult or very expensive, the fact that the defamatory statement is not expunged may well not justify the
inference that it remains in place with his approval.”
[41]In respect of postings on Facebook Pages, the noticeboard analogy and the principle enunciated in Wishart is
compelling. In addition, this Court also shares the concern that there must be a careful balance between the
freedom of speech and the right not to be defamed.
[42]In this case however, it is clear beyond peradventure that the Defendant was well aware of the secondary
statements posted by third parties on his Facebook Page and did not remove them. These third parties were people
known to the Defendant. Suffice it to say that the Defendant knew of the secondary statements posted, did nothing
to remove them, and was entirely recalcitrant about it. In fact the postings by the third parties were specifically in
response to the Defendant’s own postings and, in the circumstances of this case, it could also be maintained that
the Defendant had caused the publications by the third parties.
[43]Having regard to the foregoing, I hold the Defendant liable for publishing the secondary statements that were
posted on the Defendant’s Facebook Page. The postings by Kenny Koet on 29th May 2017, Anthony Chin on 5th
June 2017, Canny Wong on 31st May 2017 and Hor Tong Liat on 4th June 2017 were, in my view, defamatory of
the Plaintiff in the sense that they had portrayed the Plaintiff as a dishonourable company, one that would withhold
the payment of commissions and it had a bad reputation.
Damages
[44]Defamatory postings on a Facebook Page are regarded as libel (See Tony Pua Kiam Wee v Dato’ Sri Mohd
Page 16 of 18
....
Najib bin Tun Haji Abdul Razak [2018] 3 CLJ 522; Godfrey v Demon Internet Ltd [1999] 4 All ER 342; Ansari
Abdullah v Shalmon Sanangan [2016] 7 CLJ 73). Libel, is actionable per se. No actual damage need be proven. In
Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] MLJU 61, Suraya Othman JCA
stated as follows:
“[90] In Jameel (supra), Lord Scott had gone to great lengths to espouse both the law and policy behind the time-honoured
rule that a plaintiff company need not be required to show actual damage to obtain damages for libel. It was agreed in this
case that it is the reputation of the corporate body which is the asset of value which if it has been tarnished by the libel need
to be compensated for. The case of English and Scottish Co- operative Properties Mortgage and Investment Society Ltd v
Odhams Press Ltd [1940] 1 KB 440 was cited where the dictum of Goddard LJ was emphasized that the primary purpose
of an award of damages in a libel action, where no actual damage caused by the libel has been pleaded or proved, is not
compensation but vindication of reputation:
“119 Defamation constitutes an injury to reputation. Reputation is valued by individuals for it affects their self-esteem
and their standing in the community. Where reputation is traduced by a libel “the law presumes that some damage will
flow in the ordinary course of things from the mere invasion of the plaintiff’s rights”: Bowen LJ in Ratcliffe v Evans
[1892] 2 QB 524, 528. It is accepted that the rule applies and should continue to apply to individuals. But it is argued
that it should no longer be applied to corporations. Corporations, it is said, have no feelings to be hurt and cannot feel
shame. If they are to sue for libel they should be required to show that the libel has caused them actual damage.
These arguments, in my opinion, miss the point. The reputation of a corporate body is capable of being, and will
usually be, not simply something in which its directors and shareholders may take pride, but an asset of
positive value to it.” (emphasis added).
121 It seems to me plain beyond argument that reputation is of importance to corporations. Proof of actual damage
caused by the publication of defamatory material would, in most cases, need to await the next month’s financial
figures, but the figures would likely to be inconclusive. Causation problems would usually be insuperable. Who is to
say why receipts are down or why advertising has become more difficult or less effective? Everyone knows that
fluctuations happen. Who is to say, if the figures are not down, whether they would have been higher if the libel had
not been published? How can a company about which some libel, damaging to its reputation, has been published ever
obtain an interlocutory injunction if proof of actual damage is to become the gist of the action?
123 English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1
KB 440 was a case in which a society registered under the Industrial and Provident Societies Act 1893 (56 & 57 Vict c
39) complained of an article in the “Daily Herald” commenting on the way in which the society had kept its accounts
and insinuating that the figures had been deliberately falsified and that the society had carried on business “by
dishonest methods”: p 450. Slesser LJ commented that ‘A more terrible indictment of a society of this kind it is difficult
to imagine’: pp 450-451. The jury found these insinuations to be false. But the society had neither alleged nor proved
any special damage and the jury, inadequately directed by the trial judge, had awarded damages of one farthing. The
society successfully appealed and the case was remitted for a retrial limited to the issue of quantum of damages.
Slesser LJ said, at p 455:
“I cannot help feeling that … the jury must have come to the conclusion that in so far as they were not satisfied
that the company had lost any business, they must treat the damages as quite nominal or trivial. If they did go
into their deliberations with that view they were entirely in error. A libel by the invasion of a legal right gives a right
to damages. It is the duty of a jury to assess those damages, which may be punitive or contemptuous, or, in an
ordinary case, may be such as would recompense the plaintiff for the wrong done to his reputation.”
Goddard LJ said, at p 461:
“There is no obligation on the plaintiffs to show that they have suffered actual damage. A plaintiff may, if he can,
by way of aggravating damages, prove that he has suffered actual damage. But in every case he is perfectly
entitled to say that there has been a serious libel upon him; that the law assumes that he must have suffered
damage; and that he is entitled to substantial damages.”
Page 17 of 18
....
All of this was said of a corporate industrial and provident society whose reputation had been besmirched by
the libel. And it is to be borne in mind that the primary purpose of an award of damages in a libel action,
where no actual damage caused by the libel has been pleaded or proved, is not compensation but vindication
of reputation.” (emphasis added).
[91] The importance of the policy of vindication is echoed in Applause Store Productions v Raphael [2008] EWHC 1721
where the court held that since a company stands in a slightly different position than an individual claimant as it has no
feelings to hurt, a company can only recover for general damages and not for aggravated damages.
“76. Of course, a company stands in a slightly different position, for it has no feelings to hurt, and it follows that
considerations of aggravation which might be relevant if the claimant is an individual do not apply. However, the
entitlement of a company to recover general damages has recently been affirmed by the House of Lords: see Jameel
v Wall Street Journal [2007] 1 AC 359. A company’s good name is a thing of value, but it can only be hit in its pocket,
and there is no evidence here of actual financial loss. That is not to say that it may not merit vindication…”
[45]In Chin Choon v Chua Jui Meng [2005] 2 CLJ 569, Gopal Sri Ram JCA (as his Lordship then was) reproduced
from a publication, a list of factors to be considered when assessing damages:
“In Defamation Law, Procedure & Practice by Price & Duodu (3rd edition, para 20-04 at p. 208) the learned authors set out
the several factors that a court must take into account in assessing compensatory damages. This is what they say:
The amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of
factors:
1. The gravity of the allegation.
2. The size and influence of the circulation.
3. The effect of the publication.
4. The extent and nature of the claimant’s reputation.
5. The behaviour of the defendant.
6. The behaviour of the claimant.
This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court
may take into account when making an assessment.”
[46]A helpful list of cases was cited by learned counsel for the Plaintiff providing what was submitted to be a trend
with damages awarded ranging from RM100,000.00 to RM250,000.00.
[47]However, the concern for maintaining an appropriate balance between freedom of speech and the right not to
be defamed mentioned in Wishart, demands consideration even when assessing damages. It is important that an
appropriate quantum of damage be awarded, for too much may stifle free speech and too meagre an award would
render impotent the tort of defamation. This is an issue of particular concern in the face of the increasing use of
social media to transmit one’s views to the world at large or to a designated group. There are now many cases in
our Courts brought in respect of defamation on the social media. They range from very petty to grave defamatory
imputations; but they are all actionable as the law stands.
[48]The ease and availability of access through social media to inform and also to ventilate grievances have
expanded the avenue for freedom of speech and have thereby extended that freedom as never before. However, it
seems to me that society cannot expect greater freedom of speech without a corresponding and comparable
increase in tolerance. The greater the assertion of freedom of speech, the greater will be the demand for tolerance
and one avenue for the law to require that tolerance is through its expression in the damages it presumes to have
been suffered. Freedom of speech is checked by the law of defamation, but any gain in that freedom should not be
Page 18 of 18
....
extinguished by disproportionate awards of damages to the extent that the gain becomes illusory. This, however, is
not to mean that the responsibility in the exercise of that freedom is to be tolerated any more than what the law
affords on the issue of liability.
[49]In this case, the Defendant was obstinate and recalcitrant. When testifying, he was at times almost impudent, if
not actually so. So too were some of his witnesses. There was a plea of justification that failed, there was lack of
remorse on the Defendant’s part and he offered no apology. There was also evidence that the Defendant posted
the primary statements in other property websites. He did nothing to remove his impugned postings. In light of these
factors, it is not surprising that the Plaintiff asserted that aggravated damages were warranted in this case.
[50]Yet these are ordinary individuals who have had issues with their principal. Complaints about superiors at work
and complaints by ex- employees are commonplace. The third parties who contributed to the secondary statements
pleaded were all from within the Defendant’s circle. The danger of stifling legitimate workplace complaints is a factor
of concern. In the circumstances and having regard to the natural and ordinary meaning of the impugned
statements, I do not see that much damage would be caused to the reputation of the Plaintiff and indeed no actual
damage was alleged to have been caused in this case. As was stated by Goddard LJ (supra), where no actual
damage is suffered, damages in defamation are to vindicate and not compensate. Although transmission in the
social media can spread like wildfire and reach many in a short space of time (see National Union of Bank
Employees v Noorzeela Bt Lamin [2014] 7 MLJ 31), much also depends on whether the general public would have
any real interest in the type of workplace or employment related complaints, such as those in this case.
[51]Having regard to the circumstances of this case, and considering the nature of the libel, it is ordered as follows:
(i) damages, including aggravated damages, against the Defendant of RM50,000.00 together with interest at
the rate of 5% per annum from the date hereof until the date of full realisation;
(ii) a prohibitory injunction against the Defendant from publishing the defamatory statements set out in
paragraph 8 of the Statement of Claim or words of similar effect either as postings on any website or
otherwise howsoever;
(iii) that the Defendant remove or delete or cause to be removed or deleted the defamatory statements set out
in paragraph 8 of the Statement of Claim from his Facebook Page and from any other Facebook Page or
website on which the Defendant has posted any of the said defamatory statements; and
(iv) Costs of RM40,000.00 to the Plaintiff.
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Date and Time: Tuesday, 5 November, 2019 10:39:00 PM MYT

Job Number: 102028040

1. GS Realty Sdn Bhd v Lee Kong Seng

HIGH COURT (KUALA LUMPUR)

Darryl Goon JC:

The Plaintiff’s Case

No Time & Date The Defamatory Statements in

No Time & Date The Defamatory Statements in

No Time & Date The Defamatory Statements in

3. 5.6.2017 by Anthony Chin in response to “Mandarin texts”

No Time & Date The Defamatory Statements in

Mandarin texts ( (Mandarin texts) G S

It was indeed due to the group of evil

The money which was entitled to us that

4. 30.5.2017 by the Defendant “Mandarin texts”

“love you a little bit more everyday The

To be sent out by the Company’s

No Time & Date The Defamatory Statements in

Vincent Lee: Do everybody dare get in

I indeed had been kicked out from the

5. 30.5.2017 by the Defendant “Mandarin texts”

[Photo(s)] “love you a little bit more

6. 31.5.2017 and 1.6.2017 by the “Mandarin texts”

First copy, Accountant dared say still

Have a look at the 2nd copy! And try to

7. 31.5.2017 by Canny Wong in response “Mandarin texts”

8. 3.6.2017 by the Defendant “Mandarin texts”

“... I asked you, for Agents’ education

9. 3.6.2017 by the Kah Mun in response to “Mandarin texts”

10. 4.6.2017 by Hor Tong Liat in response to “Mandarin texts”

No Time & Date The Defamatory Statements in

(see Notes of Evidence, for 14.8.2018 at p 19)

Lee Yes, I confirmed, Yang Arif.

YMK And can you also confirm that photograph is yourself?

Lee Yes, I confirmed.”

(see Notes of Evidence for 14.8.2018 at pp 12 to 13)

(a) Plaintif ialah sebuah syarikat yang mengaibkan;

(b) Plaintif menipu dan menyeleweng komisen agen hartanah;

(a) The Plaintiff is a dishonorable company;

The Defendant’s case

The claim in defamation

LEE It’s not actually true.

LEE Not sure”

LEE Yes I confirm.

“YMK When did you start?

Therefore the Defendant was paid his overriding commission.

The 3rd party postings

“Our concerns about the ought to know test

Goddard LJ said, at p 461:

2. The size and influence of the circulation.

3. The effect of the publication.

4. The extent and nature of the claimant’s reputation.

5. The behaviour of the defendant.

6. The behaviour of the claimant.

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