RM100 million is like 10 sen to Taib's son, says ex-wife

RM100 million is like 10 sen to Taib's son, says ex-wife

Five awarded RM4.06mil over unlawful detention under ISA - Nation | The Star Online

Five awarded RM4.06mil over unlawful detention under ISA - Nation | The Star Online

COURT FEES HIKE PUT ON HOLD

from www.nst.com.my

COMING SOON: Subject to changes to Subordinate Courts Act 1948

PUTRAJAYA: COURT fees, which saw a 100 per cent hike under the Rules of Court 2012 that came into effect on Aug 1, have   reverted to the old rates.

Chief Justice Tun Arifin Zakaria confirmed that the new fees had been put on hold, pending amendments to the Subordinate Courts Act 1948.

"For now, the old fees will be retained but this will change in the near future. I cannot give you an exact date as it is subject to the amendments to the Subordinate Courts Act 1948.

"The new fees will be in tandem with the expanded jurisdiction of the Sessions and magistrate's courts when the new amendments to the Subordinate Courts Act 1948 are enforced."

The Rules of Court 2012, which combine the 1980 High Court Rules and the 1980 Subordinate Courts Rules, are to facilitate and standardise civil cases' procedures in court. They place emphasis on simplicity, uniformity and address issues on technicalities.

The current court fees, which were fixed in 1991, range from RM2 to RM300, depending on the type of documents filed. "The court fees have not been revised in the last 11 years and we believe it is high time to do so," Arifin said.

Citing an example, he said the impending increase in cost to file a writ of summons to initiate action in a magistrate's court, would double from RM50 to RM100. Sealing an originating summons could see a hike from RM80 to RM160.

Arifin said the courts felt that the new rates were reasonable, although the quantum in percentage might sound huge.

"In fact, the amount is still relatively low. Once the amendments to the Subordinate Courts Act are enforced, the majority of Sessions and High Court cases will be presided by the subordinate courts.

"The new fees will also discourage people from filing unnecessary applications as these can be settled out of court."

Read more: New court fees put on hold - General - New Straits Times http://www.nst.com.my/nation/general/new-court-fees-put-on-hold-1.138135#ixzz25fSc6V1l

BUMI 50% REQUIREMENT BANK PANELSHIP FOR LAWYERS Bernama Agency

http://www.bernama.com/bernama/v3/printable.php?id=261877

KUALA LUMPUR, May 14 (Bernama) -- Several members of the Dewan Negara today voiced their support towards the policy of Malayan Banking Bhd (Maybank) in requiring legal firms to have 50 per cent Bumiputera interest for them to become its panel of solicitors.

The bank should continue with the policy and not to bow to pressures from any quarters who were unhappy with it, they said.

Senator Datuk Syed Ali Alhabshee described the policy as positive to narrow the gap between the Bumiputeras and non-Bumiputeras in terms of the number of legal firms that were made panels of solicitors in the banking sector.

"I want to ask Hong Leong Bank and Public Bank, how many bumiputera legal firms have they appointed as their panels," he said when debating the motion of thanks for the royal address.

He said the decision by Maybank to impose the 50 per cent requirement was appropriate to enhance Bumiputera interests in legal firms involved in the banking sector.

He said that all the while, it was difficult for Bumiputera legal firms to get contracts or deal with other banks and Maybank's move should not be regarded as racist.

Senator Datuk Azizah Abd Samad also supported the move and described it as the bank's social obligation to the Bumiputeras.

"The decision was made by the management of Maybank without pressure from any quarters and as such should be respected and not questioned by any quarters at any forum," she said.

On May 4, Maybank issued a statement that any legal firm wishing to do business with the group must have to have three partners, including a Bumiputera with 50 per cent equity in the company.

The Dewan Negara sits again tomorrow.

-- BERNAMA

The circulation to over 33,000 people and the publication carried with it far greater connotations and implications than if they had been uttered by an ordinary man in the street. Pua, in his statement of defence, denied saying the defamatory words

Justice Amelia Tee Hong Geok Abdullah, The High Court Judge today ordered Petaling Jaya Utara Member of Parliament Tony Pua Kiam Wee to pay RM200,000 to Syarikat Bekalan Air Selangor Sdn Bhd (Syabas) over defamatory statements.

Amelia J said the circulation to over 33,000 people and the publication carried with it far greater connotations and implications than if they had been uttered by an ordinary man in the street.

"The public looks up to the defendant as their 'wakil rakyat'(MP) and his utterances would carry far greater conviction. In such circumstances, it is incumbent upon the defendant, in carrying out his many and varied duties, to ensure that in speaking about and disseminating information which are of public interest to his constituents and the general public, that he does so with a firm resolve to disseminate the information fairly and with no omission of facts which may render a statement to be defamatory.

Pua, in his statement of defence, filed on March 14 last year, denied saying the defamatory words .

The defendant had failed to file his Defence on time and his application for extension of time to do so had been dismissed with costs. What then is the effect of the defendant not having a Defence before the Court? A sum of RM 300,000.00 for general damages and another RM 200,000.00 for aggravated damages would be a fair and proper to reflect the damage that has been caused by the publication of the defamatory words

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) 

GUAMAN SIVIL NO:S23NCVC-6-2011

ANTARA

DATO’ MOHAMAD SALIM BIN FATEH DIN

DAN

NADESWARAN A/L RAJAH

GROUNDS OF DECISION

1. The plaintiff, Dato’ Mohamad Salim bin Fateh Din’s claim against the defendant, Nadeswaran a/l Rajah, is, inter alia, for general, special and exemplary damages for damage caused to him as a result of the defendant‟s publication of defamatory statements against him. The Writ of Summons and Statement of Claim of the plaintiff was filed on 31.1.2011.

2. On 28.2.2011, the defendant was granted leave to enter conditional appearance and to apply to set aside the service of the Writ of Summons and Statement of Claim on him inter alia on the ground that despite the plaintiff‟s solicitors having been informed in writing about the defendant‟s address in the United Kingdom, the documents had been served at the address of the defendant‟s parents-in-law in Petaling Jaya.

3. On 11.5.2011, the defendant‟s application to set aside service of the Writ and Statement of Claim (enclosure 6) was withdrawn with costs of RM 2000.00 to be costs in the cause. At the same time, the plaintiff‟s application for leave to issue a Concurrent Writ of Summons for service out of jurisdiction was allowed. The said Writ was served on the defendant at his address at 387, Ilford lane, IGI 2SL Ilford, Essex, England on 7.6.2011. Appearance was entered on 20.6.2011.

4. On 4.7.2011, the case was called for Case Management in the presence of Mr. Dhinesh Bhaskaran for the plaintiff and in the absence of the defendant. However, the Court was informed by the plaintiff‟s solicitors that they had mistakenly informed defendant‟s solicitors that the Case Management date was on 7.7.2011. They then sought another date and undertook to inform defendant‟s solicitors of the next date.

5. The case was called again for Case Management on 27.7.2011 in the presence of Mr. Dhinesh Bhaskaran for the plaintiff. Defendant‟s solicitors were again absent despite a written notice to them which was acknowledged received by their legal firm. Since the defendant was served on 7.6.2011, the defendant had 21 days to enter appearance and thereafter 14 days to serve his Defence. The Court was informed that the time for filing and serving the Defence had expired on 12.7.2011. In light of the fact that no Defence had been served on the plaintiff as at 27.7.2011, counsel for the plaintiff had asked the Court to set the case down for hearing. The Court then fixed 20.10.2011 for Full Hearing and 23.8.2011 for Case Management for the plaintiff to file his Bundle of Documents.

6. When the case was called for Case Management on 23.8.2011, the Court was informed by counsel for the defendant that they would be filing an application for abridgement of time. Following that, the defendant through Messrs T. K. Wong, Tan & Associates, had filed a Summons in Chambers (Enclosure 18) on 26.8.2011 for the Court to approve the filing of the Defence on 19.8.2011.

7. On 26.8.2011, the Court had dismissed the defendant‟s application in Enclosure 18. Following that decision, on the hearing date, the trial progressed without there being any Defence filed for the defendant. The Court notes that the defendant was physically absent from Court on the hearing date.

8. At the outset, the Court had asked parties to address the Court as regards the effect of there being no Defence in this case. From the authorities, it is clear that where the defendant has failed to serve a Defence or where a Defence has been struck off, the defendant would be deemed to have admitted the averments of the plaintiff. The defendant would be allowed to testify but only to mitigate as to damages.

9. The Court agrees with the submissions of learned counsel for the plaintiff that there is no doubt as to what the law is. Since there is no Defence filed, there is therefore no dispute as to the fact that defamatory statements were made, that the statements were published, and that the plaintiff had suffered damage to his reputation. The defendant‟s cross-examination would thus have to be limited to mitigating damages only.

10.Whilst agreeing that he could not present evidence to push forward the defendant‟s defence, learned counsel for the defendant had submitted that the defendant should be allowed to cross-examine the plaintiff on contradictions between his evidence and documentary evidence in respect of the defamatory evidence.

11.On this issue, the Court had found that the authorities cited and before the Court are clear and unambiguous. When there is no Defence before the Court, the defendant is now deemed to have admitted each and every averment in the Statement of Claim. As such, the Court found that it was not open to the defendant in this case to either tender the proposed witness, Mohd Kamil Ismail, or to cross-examine the plaintiff‟s witnesses as regards any positive averments in the Statement of Claim. All that the defendant would be allowed to do is to cross- examine the plaintiff and his witnesses only as regards the issue of quantum of damages.

12.The Court also notes a number of attempts made by Defence Counsel to delay the hearing. There was a submission that since the claim is a mixed claim, the plaintiff should have applied by way of Motion. The Court found this suggestion to be without merit as this is not a situation where the plaintiff is applying for Judgment in Default but rather a full hearing of an action commenced by Writ.

13.Learned counsel for the defendant had also made an oral application for the Judge to recuse herself on the ground that she had “pre-judged the whole matter”. The Court disallowed this application as it was found to be totally without basis. The only reason why the case had reached such an impasse with the defendant not having a Defence before the Court is because counsel had admittedly failed to file the Defence on time. And in his affidavit in support of Enclosure 18, counsel had clearly admitted that he was at fault. The Court had thus viewed the recusal application as being made mala fide.

The Plaintiff’s Case

14.The plaintiff called his son, Mohd Imran bin Mohamad Salim (PW 1), a Director of GTC Global Sdn Bhd which is part of the Gapurna group of companies. PW 1 has a Twitter account of which he admits to being a frequent Twitter user. He describes Twitter as a free internet mass-messaging service which can be used to post messages to a network of contacts known as “followers”. A message sent to your Twitter account would result in its being distributed to all your followers. A “Tweet” is a message limited in length to 140 characters that is sent through Twitter. Tweets can also be “Retweeted”, that is, a recipient of a Tweet can forward the message to all his followers at the click of a button.

15.According to PW 1, he is a follower of the defendant‟s Tweets. Thus, every time the defendant posts a message on his Twitter website, it would appear on PW 1‟s Twitter home page in real-time. It was thus that he first saw the defendant‟s 1st and 2nd Statements when the defendant posted them on his Twitter website.

16.The 1st defamatory statement is the statement that was made and published by the defendant on 12.7.2010 via his Twitter account to “tonypua”. The 2nd defamatory statement is the statement that was made and published by the defendant on 22.12.2010 via his Twitter website to “TerencetheSUN”.

17.According to PW 1, the 1st and 2nd statements are not only viewable by the defendant‟s followers. He explained that when a person opens a Twitter account, he has the option of keeping the Twitter account public where it is visible to everyone or else protecting his Tweets such that it would be visible only to his followers. The defendant‟s Twitter account is public. This would mean that his tweets are visible to everyone and not just to his followers. Thus a person who is not a follower of the defendant could still view his Tweets by simply accessing the Twitter website on the internet.

18.At Answer 7(iii) of his witness statement, PW 1 states that all the Tweets on the defendant‟s Twitter account at pages 1-3, 5-6 and 12-17 of the Ikatan Dokumen Plaintiff and in pages 1-324 of the Ikatan Dokumen Tambahan are Tweets sent by the defendant to his followers. As at 22.12.2010, the defendant had 1822 followers. As at 26.9.2011, he had 4113 followers and 4231 followers as at 19.10.2011. This means that every time that the defendant sends out a Tweet, it will automatically be sent to his followers in real-time. And these followers will have the option of retweeting the defendant‟s Tweets to all their own followers.

19.It is PW 1‟s evidence that among the defendant‟s followers are prominent corporate figures, politicians and media personalities. According to him, the defendant‟s 1st and 2nd statements have remained on the defendant‟s Twitter website right up until the date of the hearing on 24.10.2011 and could be read by anyone.

20.The plaintiff, Datuk Mohamad Salim bin Fateh Din (PW 2) testified that he is a businessman and the Managing Director and shareholder of Gapurna Sdn Bhd, the holding company of the Gapurna group of companies. The Gapurna group is involved in property development, construction, information & communications technology and security services. He is also the director and/or shareholder of an impressive list of companies as set out in the plaintiff‟s Bundles.

21.The plaintiff describes the largest project undertaken by the Gapurna group as the construction and leasing of a new Shell office building to Shell People Services Asia Sdn Bhd for a lease rental of approximately RM 1.1 billion over 15 years. This is a joint venture with Malaysian Resources Corporation Berhad.

22.The plaintiff has also highlighted some of his own personal achievements. He is the Chairman of Giant TMC (Malaysia), Chairman of the Malaysia-Pakistan Business Council, Honorary Investment Counselor for the Board of Investment of the Government of Pakistan and a member of the Boards of Trustees of Yayasan Pendidikan Cheras and Yayasan Amal Wangsa, He has also received honorific awards from His Majesty the Yang Di Pertuan Agong in 2011, from the Sultan of Selangor in 2005, from the Sultan of Pahang in 2000 and the Yang Di Pertua Pulau Pinang in 1997.

23.The plaintiff describes the defendant as a journalist with the Sun newspaper who writes a column under the byline of “Citizen Nades”. His claim against the defendant is for damages for two defamatory statements that were made by the defendant against him.

The 1st Defamatory Statement

24.The 1st defamatory statement is a download from the internet at http://twitter.com/CitizenNades” which shows that the following statement was made by the defendant on 12.7.2010 to “tonypua”. The 1st statement reads as follows:

6

“What is Sgor exco‟s connection to sec 52 dvlment and Salim Fatih Din? Paki masqrding as bumi ...”

25.According to the plaintiff, the 1st statement is defamatory of him as it means or suggests that the plaintiff conceals his heritage; is a dishonest person; is not a bumiputra; and deceives people into believing that he is a bumiputra. The plaintiff states that the 1st statement is untrue because whilst his grandparents were from Pakistan, both his parents were born in Malaya. The plaintiff himself was born in Malaya before Independence Day. The plaintiff states that he had never concealed his Pakistani heritage and that his appointment as the Honorary Investment Counselor for the Board of Investment of the Government of Pakistan and the Chairman of the Malaysia-Pakistan Business Council which were widely covered by the media would be evidence of that fact.

The 2nd Defamatory Statement

26.The 2nd defamatory statement is another download from the defendant‟s Twitter website which shows a further statement made by the defendant on 22.12.2010 to “TerencetheSun” which reads as follows:

“brightening to note that tentacles of Paki land thief has entered the PKR heartland! Did we say too much at meeting with AA?”

This was followed by another statement to “@nikazmi” as follows:

“FMT story on RM 2 company given contract makes interesting reading. No wonder all support re-development next to PJ Hilton”.

27.According to the plaintiff, the “FMT story on RM 2 company given contract” refers to an article published in Free Malaysia Today on its website at www.freemalaysiatoday.com on 21.12.2010 entitled “A case for Selcat: RM 2 firm gets rich contract”. The article states inter alia that the Selangor government has awarded a contract to build 9 blocks of high rise buildings in section 52, Petaling Jaya currently occupied by PKNS to Puncak Wangi Sdn Bhd, a RM 2 company without calling for tenders. A source claimed that Azmin Ali had allegedly pressured the Selangor Menteri Besar to award the project to Puncak Wangi. According to the records of the Companies Commission of Malaysia, Puncak Wangi was registered under the names of S. Vasanthi and Cheong Yoke Ling on 25.9.1995. However a week after the registration, the duo resigned as directors and were replaced by Nurulhaini Rosli, Mahinder Kaur Teja Singh and Zubaidah Ahmad Tajuddin. Out of Puncak Wangi‟s 200,000 shares, Azmin Ali owns 10,000 shares, Krushiah 5,000 shares whilst the rest belongs to Gapurna Sdn Bhd, a company headed by the millionaire Mohd Salim Fateh Din. A check with the Selangor Lands and Mines office reveals that Mohd Salim also owns Bisraya Construction Sdn Bhd which has placed a caveat on the PKNS land in May the previous year.

28.The plaintiff‟s complaint is that the 2nd statement is defamatory of him as it means or suggests that –

i.

ii.

he is a land thief and has stolen land; he has acquired land illegally and is involved in illegal land deals; he has acquired land through corrupt dealings with, amongst others, Azmin Ali, the deputy president of PKR; and

He has secured a contract to build 9 blocks of high rise buildings in section 52 Petaling Jaya illegally; he is associated with Azmin Ali and has used his association to secure the contract; he has caused Azmin Ali to pressurize the Menteri Besar into awarding him the contract; he is involved in corrupt practices with Azmin Ali and has acquired the contract through corrupt practices and by supporting PKR.

29.The plaintiff has testified that the 2nd statement and the contents of the FMT article are not true. He categorically states that he is not a land thief as alleged by the defendant.

Publication

30.On the issue of publication, the plaintiff states that the defendant‟s Tweets can be read by anyone who receives his Tweets or who surfs the Twitter website. No password is needed to access or view the defendant‟s Tweets. Until the date of the hearing, the 1st and 2nd statements remain on the defendant‟s Twitter website and have not been removed by him and as such, even up to the date of the hearing, the two statements could still be read by anyone. The plaintiff thus contends that the two defamatory statements have definitely been read by a substantial number of individuals who read or follow the defendant‟s Tweets.

Damage

31.The plaintiff testified that the two statements had definitely affected his reputation. He had received enquiries from friends, relatives and business acquaintances regarding the two statements. As the defendant is a journalist, people would tend to assume that there is some truth in the statements. As such, the plaintiff claims that he has undergone extreme embarrassment and distress.

32.It is the plaintiff‟s belief that the defendant has published the two defamatory statements in order to damage his personal and business reputation. He based his belief on the fact that despite letters from the plaintiff‟s solicitors to immediately cease and desist in publishing the two statements and to publish a full and unequivocal written apology and retraction of the statements or else the plaintiff would commence legal proceedings, the defendant had, instead of complying with the demand, made the following statement to “TerencetheSUN" :

“hv checked and rechecked! The land thief is trying intimidation! I love a good battle! War is now declared! I‟ll take him on”.

33.The plaintiff states that this 3rd statement was made to further disparage him and that all three statements were made in order to increase his popularity on the Twitter website. Further, the defendant had gone out of his way to prolong the proceedings as can be seen by the sequence of events following the filing of thus suit.

34.As such, the plaintiff is claiming general, aggravated and exemplary damages, a full and unequivocal public retraction and apology from the defendant and an injunction to restrain the defendant, his servants or agents from further defaming him.

35.During cross-examination, PW 2 denied that he had not suffered any damage through the statement “Paki masqrding as bumi”. He explained that people with whom he did business and interacted think that he had deceived them. However, he admitted that there was no evidence before the Court from these people as to their feelings of being deceived.

36.The plaintiff also disagreed with the suggestion that he had not suffered any damage as a result of the 2nd statement. He testified that he had suffered humiliation as a result of being called a land thief who was stealing people‟s land and acquiring land illegally. He disputed that the 2nd statement did not refer to him specifically as it referred to a “Paki land thief” and not to a Malaysian Malay.

37.The plaintiff agreed that the “FMT” story refers to an article published by Free Malaysia Today. Whilst he agreed that he had not taken any action against the publishers of Free Malaysia Today, he disagreed that he could not recover damages from the defendant unless he has taken action against Free Malaysia Today

38.As regards the 3rd statement which makes reference to the ethnicity of the land thief, the plaintiff was of the view that the comments referred to him as the Defendant‟s Tweet came immediately after the plaintiff‟s solicitors had sent the defendant an e-mail letter of demand.

39.The plaintiff agreed that he did not have any documents to show that he had lost any projects, bids or tenders as a result of the defamatory statements. He had not been removed as a director from any of the companies of which he is a director as a result of the defamation. Neither had he been removed as the Honorary Investment Counselor for the Board of Investment of the Government of Pakistan or as a member of the Suruhanjaya Kommunikasi & Multimedia as a result of the defamation.

Findings and Decision

40.In coming to a decision, the Court has carefully considered the Statement of Claim of the plaintiff supported by the evidence of the plaintiff himself and that of his son, PW 1. From the outset, it must be stated that the defendant had failed to file his Defence on time and his application for extension of time to do so had been dismissed with costs. What then is the effect of the defendant not having a Defence before the Court?

41.In the case of Tan Sri Dato’ Vincent Tan Chee Yioun v Haji Hasan bin Hamzah & Ors [1995] 1 MLJ 39, Mokhtar Sidin J had cause to deal with this question. In that case, the 1st to 6th defendants had not filed their Defence even though the Writ and Statement of Claim were served on them. There was no application by them for extension of time to file their Defence. And at page 49, His Lordship had held as follows:

“As such, for all intents and purposes, there is no defence filed by these defendants. Since no defence has been filed, the defendants are deemed to admit the averments pleaded by the plaintiff. Though the first, second, third, fifth and sixth defendants gave evidence in court, I have allowed them to do so only for the purposes of mitigating the damages against them and not as evidence as to their defences. “. (Emphasis added)

42.In the case of MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & other appeals [1995] 2 MLJ 493, the Court of Appeal had dealt with the issue of the 1st defendant‟s default in delivering a defence. The Court of Appeal said that when faced with the 1st appellant‟s default in delivering a defence, the respondent had two choices. The first choice was to enter interlocutory judgment and then move on for an assessment of his damages. Alternatively, he could have set the action down for trial. As stated by His Lordship Gopal Sri Ram JCA at page 511,

“In my judgment, a plaintiff in a libel action is not bound to enter default judgment. I certainly see no such compulsion in the language of O. 19 r. 7 of the Rules of the High Court 1980. He is entitled to proceed and to set the action down for hearing for the purpose of vindicating his reputation and to have his damages assessed. I do not think it lies in the mouth of a defendant who has publicly assailed a person‟s character to suggest that vindication ought not to be properly obtained.”.

43.In Thuan Lor Holdings Sdn Bhd v Khairoon Bee bte Abdul Karim [1995] MLJU 472, the defendant had filed its Defence and Counterclaim on 1.2.1992. Meantime, the plaintiff had failed to file its Defence to the defendant‟s Counterclaim. In dealing with the issue of the effect of the plaintiff not having served a Defence to the Counterclaim, His Lordship T Selventhiranathan J had this to say:

“Maka pada pendapat saya penghakiman yang diperolehi oleh defendan atas tuntutanbalasnya disebabkan keingkaran pembelaan adalah suatu penghakiman yang teratur (regular Judgment). Dalam buku mereka “Commercial litigation”, edisi 1987, Goldrein dan Wilkinson mengatakan seperti berikut dimukasurat 370:

“1. The rule of implied admissions. The defendant must serve his defence before „the expiration of the period fixed by or under these Rules for service of defence‟: see Order 19, rules 2-7. The failure to serve any defence brings into play the so-called „rule of implied admission’ under which everything in the statement of claim is deemed to be admitted by the defendant unless expressly denied. So a failure to serve a defence amounts to an admission by the defendant of everything in the statement of claim: see Order 18, rule 13 and Cribb v Freyberger [1919] W@N 22 (CA).”

44.Other authorities in similar vein cited by learned counsel for the plaintiff are Chang Kow Chin v Kammala Kumarasamy & Ors [2000] 2 CLJ 167 where Abdul Malik Ishak J held that the effect of a defendant admitting the facts as pleaded in a Statement of claim is that the trial would be shortened as no evidence would be led in relation to those admitted facts; Aetna Universal Insurance Sdn Bhd v Fire Accident & Marine Sdn Bhd [2001] 4 CLJ 753 where T Selventhiranathan J found that there may be deemed admissions by virtue of the rules where there is inter alia a default of defence; Global Destar (M) Sdn Bhd v Kuala Lumpur Glass Manufacturers Co Sdn Bhd [2004] 5 CLJ 167 where Abdul Malik Ishak J held that admissions may be made where there is a default of defence.

45.As such, on the strength of the wealth of authorities as set out above, the Court is satisfied that as the defendant has served no Defence in this case, he is deemed to have admitted each and every averment as contained in the plaintiff‟s Statement of Claim. Consequently, the Court will thus only have to deal with the issue of the amount of damages to be awarded to the plaintiff.

46.In the case of MGG Pillai (supra), the Court of Appeal quoted with approval the decision of the Learned Judge of the High Court as to the factors to be considered when assessing damages. The following were found to be relevant factors:

i. The position and standing of the plaintiff; ii. The gravity and seriousness of the libel; iii. The mode and extent of the publication;

iv. The mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel;

v. The uncertainty undergone in litigation; vi. The conduct of the defendants from the time of the libel down to the

very moment of the verdict; and vii. The absence or refusal of any correction, retraction or apology.

The Court will deal briefly with each of these factors in turn.

(i) Thepositionandstandingoftheplaintiff

47.Who is the plaintiff? This issue is relevant as the position and stature of the plaintiff who has been defamed is relevant in considering the amount of damages to be awarded in this case. The plaintiff had recounted at length on his position as the Managing Director and shareholder of Gapurna Sdn Bhd, the holding company of the Gapurna Group of companies and the various types of businesses that the Gapurna Group is involved with. The plaintiff has also testified as to the many large scale and billion ringgit projects undertaken by the Group.

48.Equally pertinent are the plaintiff‟s personal achievements. He is the Chairman of Giant TMC (Malaysia), Chairman of the Malaysia-Pakistan Business Council, Honorary Investment Counselor for the Board of Investment of the Government of Pakistan and a member of the Boards of Trustees of Yayasan Pendidikan Cheras and Yayasan Amal Wangsa, He had also received numerous honorific awards from His majesty the Yang Di Pertuan Agong in 2011, from the Sultan of Selangor in 2005, the Sultan of Pahang in 2000 and from the Yang Di Pertua Pulau Pinang in 1997.

49.The Court is thus left in no doubt that the plaintiff is a man of standing and importance in business, both locally and regionally/internationally, and in society. Accordingly, the Court has no hesitation in accepting that the plaintiff is a prominent person with a good standing and who holds key positions in society and business, a person who is held in high esteem and whose reputation would be seriously damaged by the defamatory statements.

(ii) Gravity and seriousness of the defamation

50.The gravity and seriousness of the defamatory statements can be seen from the two statements. In the 1st defamatory statement, the plaintiff is referred to by name as a “Paki masqrding as a bumi”. This statement would mean that the plaintiff is not a Bumiputra, he is dishonest and deceives people into believing that he is a Bumiputra and that he conceals his Pakistani heritage.

51.The Court accepts the evidence of the plaintiff that although his grandparents were Pakistanis, both his parents as well as the plaintiff himself were born in Malaya/Malaysia. As such, the Court has no reason to doubt that the plaintiff is a Bumiputra of Pakistani descent. Further, the Court accepts that the plaintiff has not concealed his Pakistani heritage as can be seen in his involvement as the Honorary Investment Counselor for the Board of Investment of the Government of Pakistan and as Chairman of the Malaysia-Pakistan Business Council. The Court accepts that by virtue of Article 160 of the Federal Constitution, the plaintiff is a Malay and consequently a Bumiputra. It follows there from that the plaintiff could not be masquerading as a Bumiputra.

52.As regards the 2nd statement, the Court finds that this defamatory statement has a more serious and damaging effect. The words “Paki land thief” denotes a dishonest person who is a land thief and who has stolen land; a person who has acquired land illegally or who is involved in illegal land deals. The Court finds that the imputations from this statement and the phrase “Paki land thief” to be severely damaging, especially to a person such as the plaintiff who is actively involved in the business of property development and construction which would by necessity require land.

(iii) The mode and publication of the defamation

53.The two defamatory statements were posted on the defendant‟s Twitter website. As at 26.9.2011, the defendant had 4,113 followers. The Court notes that as at 27.4.2012, the defendant has 4997 followers. The defendant‟s Tweets would be distributed real time to all his followers. These followers could then re-Tweet the defendant‟s postings to their own followers. In addition, since the defendant has kept his Tweets public, this would mean that his Twitter website and his Tweets would be accessible to anyone who goes into his website.

54.As such, the Court agrees that the extent of publication of the defamatory statements goes far in excess of the 4113 followers as at 26.9.2011 or the 4997 followers as at today.

(iv) Mental distress, hurt, anxiety and mental anguish

55.The plaintiff has testified that as a result of the defendant‟s publication of the two defamatory statements, he had been injured in his personal and business reputation and had undergone extreme embarrassment and distress. He has been exposed to hatred, contempt and ridicule and suffered damage.

56.It is his evidence that some of the followers who follow the defendant‟s Twitter account had contacted the plaintiff after reading the two defamatory statements. He had had to explain that the allegations were baseless. It is his evidence that he had suffered damage because his business partners, people whom he ndeveloped for, people whose companies he chaired, and government people to whom he submitted his forms, all think that he had deceived them.

57.Learned counsel for the defendant has submitted that the defendant has not provided any evidence of the loss and damage that he had suffered. He has not lost any of his appointments or directorships. He has not suffered any losses to his businesses. As such, the defendant contends that the plaintiff has not sustained any loss or damage from the defamatory statements and as such only nominal damages should be awarded.

58.In this context, the Court relies on the case of MGG Pillai v Tan Sri Vincent Tan (supra) where the Court of Appeal held as follows:

“Counsel for the respondent, in answer to the submission made on behalf of the appellants, relied on the following passage from Lachman v Pyarchand AIR 1959 Raj 169, at p 175 which, in my view correctly states the law:

In the second place, the learned civil judge seems to have thought that the plaintiff had failed to prove the damages claimed by him and therefore he was not entitled to claim any. Now, so far as this aspect of the case goes, I desire to say, first that damages are of two kinds: general and special, and the learned civil judge does not appear to have appreciated the distinction between them, and second, that while special damages are required to be specifically pleaded and proved general damages are not.

General damages are damages which the law presumes to flow from, and as if it were the natural and probable consequence of the defendants‟ act. Therefore general damages need not be pleaded specifically nor need any evidence be produced to prove them as such. I have no doubt that having regard to the pleadings of the plaintiff in the present case, what he really claimed for was general and not special damages.”

59.As such, relying on the authority as cited above, the Court finds that there is no merit in the defendant‟s submissions that since the plaintiff has not proven the quantum of the losses that he had suffered as a result of the defamatory statements, he should not be entitled to the damages sought.

(v) The uncertainty of Litigation

60.On the uncertainty undergone in litigation, learned counsel for the plaintiff has submitted that the plaintiff has had to endure the litigation and the various attempts by the defendant to delay the litigation. The Court agrees that there is uncertainty in all litigations. In this case, this has been compounded by the various delays caused by the diverse attempts to serve the defendant.

(vi)The conduct of the defendant from the time of the libel 61.Vide a letter dated 30.12.2010, the plaintiff‟s solicitors had written to the

defendant to cease and desist from further publishing the 1st and 2nd defamatory statements and to publish a full and unequivocal apology and retraction. The plaintiff also indicated his intention to commence legal proceedings against the defendant in respect of the defamatory statements. Not only did the defendant fail to reply to the said letter but instead he had further published another statement on his Twitter website which would suggest that he had no intention to cease and desist. The Court agrees with learned counsel for the plaintiff that the words in the said statement: “The land thief is trying intimidation! I love a good battle! War is now declared! I’ll take him on” would reflect the defendant‟s arrogance and dismissive of the plaintiff‟s efforts to resolve the matter. The Court is of the view that this factor would clearly lend towards a higher amount in damages.

(vii) Absence of correction, retraction or apology

62. And lastly, the Court has considered the absence of any attempt by the defendant to correct his statements, to retract his statements or else to offer or publish an apology. These steps, had they been done, would have gone a long ways towards reducing the quantum of damages. Here, not only was there no retraction or apology, the defendant was in fact priming himself up for a “battle”. This, more than anything else, would reflect the absence of any intention to retract or to apologize. On the contrary, the defendant‟s Tweets remains on his Twitter website right up to the date of the hearing.

Damages

63.The Court has duly considered all the aforestated factors and is of the view that aggravated damages can be awarded in light of the defendant‟s conduct in failing to make any apology, failure to withdraw the offending statements from his website thus allowing the defamatory statements to continue to be published right up to the date of the hearing.

64.In considering the amount of damages and aggravated damages to be awarded in this case, the Court has considered that the defendant is a journalist whose column Citizen Nades garners a healthy following. The defendant‟s column regularly deals with issues of public interests which invites discussions and thought amongst his readers. His Twitter website with more than 4000 followers and any number of casual drop-ins would naturally see heavy traffic. The Court is thus of the view that the defendant should have exercised a greater degree of care over his Tweets knowing full well that it could and would be seen by many. Where he fails to exercise a proper degree of care with his postings and in the process injures another with his defamatory postings, he must be held accountable and responsible to pay for it. The amount of damages and aggravated damages must be such as to send a strong message to those who are in a position to disseminate information widely, whether though the printed media or through the internet, that they must exercise a proper degree of care and diligence not to injure others. They must curb and regulate themselves so as not to run afoul of the law.

65.In all the circumstances of this case, the Court is of the view that a sum of RM 300,000.00 for general damages and another RM 200,000.00 for aggravated damages would be a fair and proper to reflect the damage that has been caused by the publication of the defamatory words. The Court has not awarded exemplary damages as it is unable to see any basis in awarding any damages under this head which has not been already awarded under general and aggravated damages. The Court also grants an injunction to restrain the defendant whether by himself, his servants or agents from further publishing or causing to be published the 1st and 2nd statements or any similar words defamatory of the plaintiff in whatsoever manner. In light of the fact that an injunction is now granted and damages and aggravated damages awarded, which amount is sufficient to vindicate the plaintiff, the Court has not granted prayer (iii). The Court awards interest on the general and aggravated damages at the rate of 4% per annum from the date of judgment until the date of full payment. Costs are to be taxed unless otherwise agreed between the parties.

Amelia Tee Hong Geok bt Abdullah)

Hakim NCvC 4 KUALA LUMPUR 27.4.2012

Mr. Dhinesh Bhaskaran and Ms Denise Tan Kae Ji (Messrs Shearn Delamore & Co) for the plaintiff.

Mr. G. Mahendran and Mr. Ashokvijay Sanghirajka (Messrs Mahendran & Aravind) for the defendant.

Mr. Will Sen Kwan (Messrs Skrine) for the defendant.

Judicial Review:- tender exercise must be within the performance of a public duty

MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) 

RAYUAN SIVIL NO. W-01(IM)-88-2011

FOO AH CHIN (No. K/P : 410704-05-5002)

vs

1. PENGETUA SEKOLAH MENENGAH KEBANGSAAN ST. JOHN KUALA LUMPUR

2. PENGARAH JABATAN PELAJARAN WILAYAH PERSEKUTUAN KUALA LUMPUR

3. NAJIBAH BINTI MOHAMMAD (NO. K/P : 570905-02-2580)

4. KERAJAAN MALAYSIA

CORAM

Ramly bin Haji Ali, JCA Linton Albert, JCA Balia Yusof Haji Wahi, JCA

JUDGMENT

The Appellant was an unsuccessful tenderer. She had submitted her tender for the rental and operation of the canteen for the school of which the 1st Respondent was the Principal. The 1st Respondent had called for tenders for the operation of the school canteen for the period 1-12-2010 to 30-11-2012 by way of a notice placed at the notice board at the school.

The notice stipulated that tenders were to be submitted to the School Canteen Tender Committee whose decision was final and could not be questioned.

By a letter from the 1st Respondent dated 23-11-2010 the Appellant was informed of the decision of the School Canteen Tender Committee not to award the tender to her. Dissatisfied with the decision, the Appellant sought to apply for judicial review but her application for leave was refused by the learned high court Judge. Hence this appeal.

The relief the Appellant intended to ask for relevant to this appeal were these:

1.The order of certiorari to quash the decision of the School Canteen Tender Committee not to award the tender to her vide the 1st Respondent’s letter dated 23-11-2010;

2.A declaration that the Appellant was the successful tenderer;

3.An order of mandamus directing the 1st and 2nd Respondents to award the rental and operation of the school canteen to the Appellant.

The learned Judge was correct in refusing leave to apply for an order of certiorari on the basis that the impugned decision was in relation to a tender exercise and not the performance of a public duty. The situation in the instant appeal is analogous to that which was determined in DR. AMIR HUSSEIN BIN BAHARUDDIN V. UNIVERSITI SAINS MALAYSIA [1989] 3 MLJ 298 where leave to apply for judicial review was refused. The applicant there had been appointed dean of the School of Social Science for several consecutive terms but was not re-appointed thereafter. His application for leave to apply for an order of certiorari to quash that decision not to reappoint him was refused. In refusing leave, Edgar Joseph Jr. J (as he then was) said at p301:

“Thus, in the present case, the question whether the applicant should have been reappointed dean following the expiry of his term, by the vice-chancellor pursuant to the powers conferred by s 18 of the Constitution was exclusively a domestic matter involving academic judgment, to be resolved internally.”

The tender exercise was no less a domestic matter and leave was correctly refused.

In relation to an application for an order of mandamus, the relevant provision in section 44 of the SPECIFIC RELIEF ACT 1950 states:

“(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:

Provided that 

(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;

(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character;

(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;

(d) the applicant has no other specific and adequate legal remedy; and

(e) the remedy given by the order applied for will be complete.”

The learned Judge found that the Appellant had failed to satisfy the requirements of sub-sections (a) and (b) of Section 44(1) of the SPECIFIC RELIEF ACT 1950 because it was not shown how the Appellant’s property, franchise or personal right could be injured if an order of mandamus was not made nor could the School Canteen Tender Committee be said to be subject to any law imposing on it a duty to deal with the matter complained of by the Appellant.

The court must be satisfied that all the conditions laid down in the proviso to section 44(1) of the Act are complied with. (See NG BEE v. CHAIRMAN, TOWN COUNCIL, KUALA PILAH [1975] 1 MLJ 273 at p 275). The Appellant’s application premised as it was, solely on the expectation of being awarded the tenders albeit embellished with allegations of unfairness and mala fide cannot conceivably be said to fulfill the requirements of section 44(1) (a) and (b) of the Act.

Contract Law - prima facie case of unconscionability

Gammon Pte Ltd v. JBE Properties Pte Ltd (SCDA Architects Pte Ltd, third party) [2010] SGHC 130, where the court ordered the call on a performance bond to be deferred as a claim of unconscionability had been established.

The facts are these. The plaintiff was engaged by the defendant (a developer) to construct a building.       In the course of work, the defendant pointed out defects with the façade cladding of the building. The plaintiff undertook to rectify these defects.

The architect engaged by the defendant to supervise the works issued the completion certificate certifying completion (completion certificate), which also enclosed a schedule of outstanding classes of defects. The plaintiff failed to remedy the outstanding defects, despite reminders. The defendant then called on the performance bond to fund the completion of the rectification work by another contractor, engaged by the defendant.

The defendant claimed to have awarded the contract for the rectification works to Weng Thai Construction (WTC).

Though the plaintiff did not dispute that there were outstanding defects, it alleged that it would be unconscionable for the defendant to call on the performance bond from a bank.

The view taken by the court was that the plaintiff had established a strong prima facie case of unconscionability.

It was also noted by the court that the total amount which the defendant claimed the plaintiff owed mainly for defective works amounted to more than 25% of the original contract value which the defendant awarded to the plaintiff to contract the entire buildings. It seemed strange that the architects issued a completion certificate when such a large amount of rectification works remained outstanding.

The court thus ordered the call on the bond to be deferred until further order and for all rectification works to be completed by the plaintiff within six months.

The defendant’s appeal to the Court of Appeal in Singapore was dismissed.

The Court of Appeal upheld the High Court’s decision that the bond is question was not an unconditional on demand bond and that the plaintiff’s claim of unconscionability had been established

Potton Homes Ltd v. Coleman Contractors (Overseas) Ltd (1984) 28 Build L R 24 at page 28 where His Lordship said that:-

“.. in principle I do not think it possible to say that in no circumstances whatsoever, apart from fraud, will the court restrain the buyer. The facts of each case must be considered. If the contract is avoided or if there is a failure of consideration between buyer and seller for which the seller undertook to procure the issue of the performance bond, I do not see why, as between seller and buyer, the seller should not be able to prevent a call upon the bond by the mere assertion that the bond is to be treated as cash in hand.”.

easy reading .... 

SUMATEC ENGINEERING AND CONSTRUCTION SDN BHD v. MALAYSIAN REFINING COMPANY SDN BHD
FEDERAL COURT, PUTRAJAYA
ARIFIN ZAKARIA CJ, HASHIM YUSOFF FCJ, ABDULL HAMID EMBONG FCJ
[CIVIL APPEAL NO: 02 (i)-27-2011 (W)]
29 FEBRUARY 2012

The appellant (`Sumatec') was appointed by the respondent (`MRC') to be its contractor for a project (`the Structural Steel works contract'). Sumatec was to also provide a bank guarantee for the due performance of the contract. It was Sumatec's assertion that they had duly completed all works required of them by delivery of all agreed steel structure, which was confirmed by the respondent through the issuance of a Provisional Acceptance Certificate.

However, a dispute arose between the two parties and subsequently Sumatec was informed that MRC had proceeded to make a demand for payment or encashment of the bank guarantee. Sumatec contended that MRC's call on the bank guarantee amounted to unconscionable conduct and this in itself was sufficient ground to challenge the calling for payments under the said bank guarantee. In the High Court, Sumatec succeeded in obtaining an injunction to restrain the respondent from calling upon the bank guarantee issued by Bank Islam Malaysia Berhad (BIMB).

However, the Court of Appeal found that MRC was not guilty of any unconscionable conduct to restrain it from calling on the bank guarantee and had allowed MRC's appeal, concluding that the balance of convenience tipped in favour of MRC and that damages would, at the end of the day, be a sufficient remedy for Sumatec.

Herein, leave to appeal was allowed on the sole question namely, whether `unconscionable conduct' on the part of a beneficiary of a bank guarantee or a performance bond was a distinct ground, apart from "fraud", that entitled the court to restrain the beneficiary from calling on or demanding and receiving monies under the bank guarantee or performance bond.

Held (dismissing the appeal with costs)

Per Abdull Hamid Embong FCJ delivering the judgment of the court:

(1) The principle recognising unconscionability as a separate and distinct ground to restrain a beneficiary from making a call on a performance bond accorded with good commercial sense (Kejuruteraan Bintai Kindenko Sdn Bhd v. Nam Fatt Construction Sdn Bhd & Anor; Focal Asia Sdn Bhd & Anor v. Raja Noraini Raja Datuk Nong Chik & Anor). Thus, unconscionability may now be raised as a distinct ground. The determination on whether unconscionability applies in a particular case would therefore depend largely on the material facts. (para 40)

(2) Sumatec raised several incidences of the alleged unconscionable conduct on the part of MRC. These were factual matters which had been carefully evaluated and answered in the Court of Appeal. The learned judges had rightly concluded based on the materials before them, that unconscionability had not been proven to maintain the injunction granted. There were no reasons to justify an interference with the appellate judges' exercise of their discretion to set aside the injunction. It was unnecessary to add, minus or expand on the reasons given by the Court of Appeal to its negative finding of unconscionability on the part of MRC. Balance of convenience favoured refusal of the injunction. (para 43)

NAYATI'S HOME safe GOD BLESS

http://thestar.com.my/news/story.asp?file=/2012/5/4/nation/11230701&sec=nation 

http://www.themalaysianinsider.com/malaysia/article/nayati-back-with-family

http://thestar.com.my/news/story.asp?file=/2012/5/4/nation/11230701&sec=nation

Nayati Shamelin Moodliar, in Mont’Kiara, KL this morning. The auto used was a black Proton Gen 2. The tag number is WNH 1356. (Police have just verified that this is a false number plate). Anyway there were two dark-skinned male occupants seen abducting this kid. Please, if you have any news of this child, or car please call the Malyasian Police at 999, or the school at 0320938604

Piecing the Veil

A company is an independent legal entity,  that is, distinct from its members.

Lord Macnaghten in Salomon v A Salomon & Co Ltd that a 'company is at law a different person altogether from the subscribers to the memorandum'. In Adams v Cape Industries Plc [1990] Ch. 433, Justice Slade described subsidiary companies as being 'separate legal entities with all the rights and liabilities which would normally attach to separate legal entities' despite 'in one sense [being] creatures of their parent companies.

There is however, exception to this.

The House of Lords in Woolfman v Strathclyde Council held that it is the corporate veil can be pierced/lifted where the company is merely a 'façade concealing the true facts'.

In Gilford Motor Company v Horne [1933] Ch 935 , an injunction was granted against both Mr Horne and J.M. Horne and Co Ltd, a company owned by his wife and a friend. It was said that the company had been created as a 'cloak' under which Mr Horne had attempted to conceal his business activities.  Mr Horne had agreed with his previous employment that  he would not compete and solicit clients of his previous employer.

"The defendant company is the creature of the first defendant, a device and a sham, a mask which he holds before his face in an attempt to avoid recognition by the eye of equity."

.. Jones v Lipman [1962] 1 WLR

 Recent Decisions

The Courts in recent decision have now considered the event of a  'puppeteer' made be bound under a contract, which he is not privity to.

Antonio Gramsci Shipping Corp v Stepanovs [2011] EWHC 333

http://www.bailii.org/ew/cases/EWHC/Comm/2011/333.html

 VTB Capital plc v Nutritek International Corp [2011] EWHC 3107 (Ch)

http://www.bailii.org/ew/cases/EWHC/Ch/2011/3107.html