Robert Khoo Keat Hoe

[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 1

ROBERT KHOO KEAT HOE

v.
LEE WEI KEAT @ JERRY & ANOR

High Court Malaya, Kuala Lumpur

SM Komathy Suppiah JC
[Civil Suit No: 22NCVC-272-06/2014]
26 November 2014

Case(s) referred to:

Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd
[1993] 1 MLRA 611; [1993] 3 MLJ 43; [1993] 4 CLJ 7; [1993] 2 AMR 1969 (refd)
Hubbuck v. Wilkinson [1899] 1 QB 86 (refd)
Bank Negara Malaysia v. Mohd Ismail & Ors [1990] 4 MLRH 203; [1992] 1 MLJ
400; [1992] 2 CLJ 186 (refd)
Raja Zainal Abidin Bin Raja Haji Tachik & Ors v. British-American Life &
General Insurance Bhd [1993] 1 MLRA 372; [1993] 3 MLJ 16; [1993] 3 CLJ 606;
[1993] 2 AMR 2073 (refd)
Tractors Malaysia Bhd v. Tio Chee Hing [1975] 1 MLRA 106; [1975] 2 MLJ 1
(refd)
Dato' Seri Anwar Ibrahim v. Dato' Seri Dr Mahathir bin Mohamad [1999] 3
MLRH 82; [1999] 4 MLJ 58 (refd)
Dato' Sei Anwar Ibrahim v. Dato' Seri Dr Mahathir bin Mohamad [2000] 1
MLRA 837; [2001] 1 MLJ 305; [2001] 1 CLJ 519 (refd)
Dato' Saizo Abdul Ghani v. Celcom (M) Bhd & Anor [2007] 3 MLRH 205; [2008]
2 MLJ 931; [2008] 10 CLJ 169 (refd)
Ernest Cheong Yong Yin v. Low Kim Yap & Ors [2006] 2 MLRH 645; [2006] 5
MLJ 780; [2006] 6 CLJ 608; [2006] 6 AMR 431 (refd)
Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 1 MLRA
95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357 (refd)
Mallan v. A M Bickford & Sons, Limited [1915] SALR 47 (refd)
S Pakianathan v. Jenni Ibrahim [1988] 1 MLRA 110; [1988] 2 MLJ 173; [1988] 1
CLJ 233 (refd)
Watt v. Longsdon [1930] 1 KB 130 (refd)
Harrison v. Bush [1885] 5 E & B 344; 119 ER 509 (refd)
Adam v. Ward [1917] AC 309 (refd)
Reynolds v. Times Newspaper Ltd [2001] 2 AC 127 (refd)
Khalid Yusoff v. Pertubuhan Berita Nasional Malaysia (BERNAMA) & Ors
[2014] 6 MLRH 486; [2014] 8 CLJ 337 (refd)
Kearns v. General Council of the Bar [2003] 2 All ER 534 (refd)
Reynolds v. Times Newspapers Ltd [1999] 4 All ER 609; [2001] 2 AC 127 (refd)
Loutchansky v. Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805; [2002] 1
All ER 652; [2002] QB 783 (refd)
Lange v. Atkinson [2000] 8 BHRC 400 (refd)
Datuk Yong Teck Lee & Anor v. Datuk Harris Mohd Salleh [2014] 6 MLRA 99;
[2014] 6 CLJ 649 (refd)
 Robert Khoo Keat Hoe
pg 2 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

Horrocks v. Lowe [1975] AC 135 (refd)

Legislation referred to:

Rules of Court 2012, O 18 r 19(1), O 78 r 3(3)
Rules Of The High Court 1980, O 18 r 19 (1)(a), (b), (d)
Strata Titles Act 1985, s 44

Other(s) referred to:

Defamation Law, Procedure & Practice, 4th edn

Counsel:
For the plaintiff: Ong Yu Jian (James Joshua Paulraj with him); M/s Raj, Ong
Yudistra
For the defendant: Yee Mei Ken (J H Yee with him); M/s Shearn Delamore & Co

[The application and strike out the plaintiff's claim with costs of RM10,000.00.]

GROUNDS OF JUDGMENT

SM Komathy Suppiah JC:

Introduction

[1] The history of this acrimonious litigation began when a circular notice was
published by the management corporation of a condominium development in
Kuala Lumpur called Hampshire Park Condominium ("Hampshire Park").
The circular notice alluded to an incident that had allegedly taken place on 21
November 2013 where loud blaring music had come from one of the units
within the condominium for about one hour from 3 in the morning.

The Parties

[2] The plaintiff, Robert Khoo Keat Hoe, is a resident in Hampshire Park
occupying Unit B-16-2. The second defendant is the management corporation
of Hampshire Park whilst the first defendant is the resident manager of
Hampshire Park and an employee of the third defendant, Burgess Rawson
Management Sdn Bhd, a property management company, appointed by the
second defendant to manage and maintain the common property of
Hampshire Park.

The Libel Action

[3] The present libel action is founded upon the publication of a circular notice
dated 23 November 2013 entitled "Nuisance caused by B-16-2 parcel owner on
21 November 2013 from 3.00 am to 4.00 am" ("Notice"). The Notice was
issued by the management corporation in response to complaints it received
regarding the loud noise coming out from unit B-16-2 on 21 November 2013.
The first defendant had signed the notice on behalf of the second defendant,

[4] The plaintiff pleads that as unit B-16-2 belongs to him, the Notice referred
 Robert Khoo Keat Hoe
[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 3

to and was defamatory of him.

[5] In their defense, the defendants denied that the contents of the Notice were
defamatory and relied on the defense of justification, and in the alternative,
qualified privilege.

Notice

[6] The contents of the Notice that was put up on the notice board at
Hampshire Park are set out in para 12 of the statement of claim and was in
these terms:

"(a) "...Nuisance caused by B-16-2 parcel owner on 21 November 2013

from 3.00 am to 4.40 am...";

(b) "...to the incident of blaring stereo music permeating intermittently

from parcel B-16-2 during early hours of the morning";

(c) "... such an inconsiderate act has disrupted their peaceful stay at
Hampshire Park";

(d) "...lodged a report at Balai Polis Dang Wangi on the same day and
we have requested for their urgent assistance to look into our
complaint";

(e) "...We will continue to monitor the situation and if he persists with
his inconsiderate act, then we will immediately summon for police
assistance to confront him"; and

(f) "...we shall issue a stern warning letter to the parcel owner
reminding him to abide to:- (a) Hampshire Park By-laws, s 30, which
forbids from permitting any noise at such volumes that may cause a
nuisance or annoyance to any other occupiers of the building at all
times particularly after 12.00 midnight; and (b) by-law 2(e) of the third
schedule of the Strata Titles Act 1985 which states a parcel proprietor
shall not use or permit to be used in such a manner or for such a
purpose as to cause nuisance or damage to any other proprietor or the
families of such proprietor"."

The Application

[7] This is an application by the defendants under O 18 r 19(1) Rules of Court

2012, to strike out the plaintiff's writ of summons and statement of claim on
the basis that it is scandalous , frivolous or vexatious and/or an abuse of
process of Court. A striking out order is sought on the grounds that their
defenses of justification and qualified privilege were bound to succeed as they
could be proven by affidavit evidence.

The Parties' Contentions

 Robert Khoo Keat Hoe
pg 4 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

[8] The defendants contended that the claim should be struck out as the
plaintiff's claim that he has been defamed is bound to fail as the contents of the
Notice were not defamatory as they were true in substance and in fact. It was
argued that there was cogent and irrefutable affidavit evidence to show that the
incident alluded to in the Notice had taken place. The residents who lived in
the unit above and below the plaintiff's unit have affirmed statutory
declarations confirming the occurrence of the incident. Their evidence was
credible and supported by contemporaneous documents.

[9] It was argued that even if the court did not accept the defense of
justification, in any event, the defendants would succeed on the defense of
qualified privilege because they had a duty or interest to inform the residents of
incidents which threatened the peace at Hampshire Park and the residents had
a corresponding duty to know and receive information which affected their
right to live in peace in their respective units.

[10] The plaintiff, on the other hand, denied that the incident had taken place.
He relied on a statutory declaration affirmed by the security supervisor at
Hampshire Park , one Arjun Kumar Sunuwar ("Arjun") stating that the guard
on duty on the night in question had intimated to him that the incident did not
take place. It was argued that the question of whether the incident had taken
place is an issue of fact which cannot be decided by affidavit evidence at this
stage. There was a serious conflict of evidence on the affidavits which can only
be resolved by viva voce evidence and cross-examination of the relevant
witnesses at the trial as an O 18 r 19(1) application is not a trial by affidavit
evidence. The plaintiff must therefore be given the opportunity to challenge in
cross-examination the evidential material relied on by the defendants in
support of their defenses of justification and qualified privilege. He urged the
court to afford him the right to proceed with the action and prosecute it in the
usual way.

[11] The plaintiff also disputed the defendants entitlement to rely on the
defense of qualified privilege as it was only applicable to newspapers and to
media related entities.

Striking Out Principles

[12] The legal principles that govern a striking out application are well
established. For purposes of this judgment, it is sufficient to refer to the oft
quoted passage in the judgment of Mohamed Dzaiddin SCJ in Bandar Builder
Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA
611; [1993] 3 MLJ 43; [1993] 4 CLJ 7; [1993] 2 AMR 1969:

"The principles upon which the Court acts in exercising its power
under any of the four limbs of O 18 r 19(1) Rules of the High Court
are well settled. It is only in plain and obvious cases that recourse
should be had to the summary process under this rule (per Lindley M
R in Hubbuck v. Wilkinson [1899] 1 QB 86, p 91), and this summary
procedure can only be adopted when it can be clearly seen that a claim
or answer is on the face of it "obviously unsustainable"
 Robert Khoo Keat Hoe
[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 5

[13] The principle laid down in the passage quoted above is that it is only in
plain and obvious cases, a claim or defense can be struck out summarily. A
plain and obvious case would be a case where the claim or defense is obviously
unsustainable and bound to fail.

[14] In determining whether a claim is plain and obvious case, the courts have
stated that the trial judge has ample discretion to consider the affidavit
evidence at this interlocutory stage and make an assessment of whether there is
in fact a triable issue of fact or law meriting a full blown trial. In this regard, I
refer to three cases. The first, Bank Negara Malaysia v. Mohd Ismail & Ors
[1990] 4 MLRH 203; [1992] 1 MLJ 400; [1992] 2 CLJ 186, where the Supreme
Court held that (at 408):

"Where such assertion, denial or dispute is equivocal, or lacking in

precision or is inconsistent with undisputed contemporary documents
or other statements by the same deponent, or is inherently improbable
in itself, then the judge has a duty to reject such assertion or denial,
thereby rendering the issue not triable."

[15] In the next case, Raja Zainal Abidin Bin Raja Haji Tachik & Ors v. British-
American Life & General Insurance Bhd [1993] 1 MLRA 372; [1993] 3 MLJ 16;
[1993] 3 CLJ 606; [1993] 2 AMR 2073, the Supreme Court observed (at 24):

"In conclusion, with great respect, the learned judge could have
avoided the pitfall as described by the Privy Council in Tractors. The
lower court should have also scrutinized the evidence in order to
decide whether the action was bound to fail. If so, it would have been
found otiose to send the case back to its starting point to start its long
and expensive course albeit such a conclusion was reached on an
application filed under O 18 r 19."

[16] In the last case, Tractors Malaysia Bhd v. Tio Chee Hing [1975] 1 MLRA
106; [1975] 2 MLJ 1, the Privy Council held that (at 1):

"In refusing to submit the evidence to critical examination, however,

the Federal Court erred in law. This makes it necessary for their
Lordships to state briefly the facts disclosed by the evidence which, in
their view, lead to the conclusion that the New Action could not
possibly succeed."

Case Law

[17] The case-law is replete with examples where the courts have exercised the
jurisdiction to summarily strike out a plaintiff's claim in libel on the basis that
the defendant had proven ,on affidavit evidence, the defenses of justification
and/or qualified privilege. A few examples will be useful.

[18] In Dato' Seri Anwar Ibrahim v. Dato' Seri Dr Mahathir bin Mohamad
 Robert Khoo Keat Hoe
pg 6 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

[1999] 3 MLRH 82; [1999] 4 MLJ 58, Kamalanathan Ratnam J held (at 69, 72
and 73):

"the defense of justification is clearly open to the defendant and on this

ground alone this claim ought to be struck out...not only has the
defendant satisfied the requirements of the test as stipulated in
Reynolds, the very public or the interested parties of the public,
themselves, have sought explanation which the Prime Minister was
bound to provide... I have no hesitation in concluding that the
plaintiff's claim is one that is 'obviously unsustainable'. I therefore hold
that this is a frivolous and vexatious suit and an abuse of process of the
court. I grant the defendant's application and order the suit to be
struck out under O 18 r 19 (1)(a), (b), and (d) of the RHC and also
under the inherent jurisdiction of the court."

[19] In Dato' Sei Anwar Ibrahim v. Dato' Seri Dr Mahathir bin Mohamad [2000]
1 MLRA 837; [2001] 1 MLJ 305; [2001] 1 CLJ 519 , Ahmad Fairuz JCA held
that (at page 310):

"It is clear that the respondent was sheltered by the defenses of

justification and qualified privilege when he uttered the offending
words or the statement. It is very plain and obvious that the claim of
the appellant is obviously unsustainable."

[20] In Dato' Saizo Abdul Ghani v. Celcom (M) Bhd & Anor [2007] 3 MLRH
205; [2008] 2 MLJ 931; [2008] 10 CLJ 169 (at pages 943 to 944):

"There is also no doubt that based on Reynolds, the defendants are

protected by qualified privilege ...In respect of defamation, I am
therefore of the view that the plaintiff's claim against the defendant is
frivolous , vexatious and an abuse of the process of the court."

[21] In Ernest Cheong Yong Yin v. Low Kim Yap & Ors [2006] 2 MLRH 645;
[2006] 5 MLJ 780; [2006] 6 CLJ 608; [2006] 6 AMR 431 (at pages 615 to 617):

"I am in full agreement with the submission by counsel for the defense,
that the defense of qualified privilege is available to the defendants... I
find this to be plain and obvious case for the plaintiff's claim to be
struck off."

The Issues

[22] In the present application, in determining whether the plaintiff's claim is a

"plain and obvious" case, the following issues have to be addressed:

i) whether there is credible evidence to show that the incident

mentioned in the Notice had taken place; and

ii) whether the evidence establishes that the Notice was published on
 Robert Khoo Keat Hoe
[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 7

an occasion of qualified privilege

Issue 1: Whether the incident had taken place?

[23] I start with the defense of justification.

[24] It cannot be gainsaid that if the incident did in fact take place as alleged by
the defendants, the plaintiff's claim that the Notice is defamatory collapses for
the obvious reason that what is true cannot be defamatory. The defense of
justification requires the defendant to prove the truth of the defamatory
statements.

[25] In support of the defense of justification, the defendants relied principally

on statutory declarations made by the affected residents who had made
complaints to the management of Hampshire Park and their landlord's
representative, Ms Vivian Chan Yoke Fong. The deponents of these statutory
declarations alluded to their encounters with the plaintiff on that very night.
Statutory declarations were affirmed by the following residents:

(i) Mr Arthur Edwin Klink from unit B-15-2;

(ii) Mr Robert Veitch Tait from unit B-17-2;

(iii) Ms Teh Ai Poh from unit B-19-2; and

iv) Ms Vivian Chan Yoke Fong as the landlord representative.

[26] The material portions of the statutory declaration affirmed by Arthur

Edwin Klink read:

"I am an Engineer, and I have full knowledge of the details set out in
this declaration. I have been living at Hampshire Park Condominium
for the past 18 months.

I confirm that there has been loud music constantly played by Robert
Khoo's unit ("B-16-2") on past occasions and on about mid-year of
2012. I have personally verified the source of noise by visiting B-16-2.
On one such occasion I called on the door with loud blaring music
coming from within B-16-2 but there was no answer. I resorted to
sleep with ear plugs from then on.

On 21 November 2013, at about 3 am, I confirm that there was

intolerably loud, and pounding music played from B-16-2. The
vibration from the loud volume could be felt from my bedroom. I
proceeded to B-16-2 and called on the door. Similarly, there was no
one answering the door when the loud music was playing inside.

Then all of a sudden, the lift opened, I saw Robert Khoo in a state of
daze, barefooted, topless and only dressed in his shorts. He looked
panic and retreated back into the lift door. I then stepped into the lift
 Robert Khoo Keat Hoe
pg 8 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

hopefully to convince him to turn down his music. I could sense that
he was intoxicated and did not respond to my question about turning
down the loud music. When the lift door opened on the 15th floor,
Robert Khoo suddenly turned abusive and assaulted me and started
pushing me off the lift. He even hurled vulgar words to me, including
repeatedly shouting "Fxxx you" and "You don't talk like this"
incessantly. He then simply pressed the lift buttons to "G" and "P2".
My wife who heard the commotion was put under great fear and stress
by him.

He admitted that B-16-2 belongs to him, and I had requested him to

lower down the volume of his music. On or about 3.45 am, the
volume of the music was lowered down but it was turned up loud
again after half an hour."

[27] In addition to the statutory declarations, the defendants also relied on a

police report that had been lodged on the same day of the incident, and a letter
issued by the security company which provided security services in Hampshire
Park. It will be useful, if I set out the relevant portions in the police report and
the said letter as regards the incident. The police report read:

"Kami ingin membuat laporan keatas penghuni Unit B-16-2, En.

Robert Khoo Keat Hoe daripada Kondominium Hampshire Park, 6-8
Off Jalan Ampang, Persiaran Hampshire Park. Pada 21hb November
kira-kira pukul 3.00 pagi sehingga 3.30 pagi beliau telah dengan
sengaja meninggalkan tahap bunyi radio beliau sehinggakan terdapat
getaran yang boleh dirasai oleh para penghuni Tower B dari tingkat 15
hingga ke tingkat 19.

Pihak pengurusan telah menerima aduan daripada 5 jiran iaitu

daripada Unit B-15-2, B-17-2, B17-3, B-18-2 dan B-1902. Pada pukul
4.20 pagi beliau telah meninggalkan semula tahap bunyi radio beliau
hingga pukul 4.40 pagi.

Ini bukan kali pertama penghuni berkenaantelah berbuat demikian.

Pada 25 September 2012, 8 Oktober 2012, 26 Oktober 2012, 6
November 2012 dan tahun ini pula pada 14 Oktober 2013 dan 27
Oktober 2013 beliau telah dengan sengaja meninggikan tahap bunyi
radio beliau.

Kami dah lama kenal pasti bunyitersebut adalah dari penghuni Unit
B-16-2 kerana pengurus bangunan, En. Lee Wei Keat @ Jerry pernah
melawat kediaman tersebut dan mendapati bilik tidur beliau dipasang
dengan speaker radio yang canggih. Pengurus bangunan pernah
menasihatkan penghuni B-16-2 untuk merendahkan nada radio beliau
tetapi beliau tidak mengaku berbuat demikian walhal telah membuat
aduan ke atas penghuni Unit B-17-2, En Robert Tait yang dikatakan
telah mengeluarkan bunyi tapak kaki yang kuat dan lantaran telah
mengganggu ketenteraman beliau."
 Robert Khoo Keat Hoe
[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 9

[28] The letter issued by the security company, Yusof & Chew Sdn Bhd, is
dated 9 January 2014 and was to this effect:

"On 21 November 2013 at about 3.30 am, I received a phone call from
tenant of Parcel B-17-2, and he complaint that the stereo sound from
B-16-2 is too loud and he cannot sleep.

After the call from B-17-2, I immediately intercom to Unit B-16-2 at

3.35 am, the owner from B-16-2 picked up the intercom and I advised
him to stop playing the music. He did not say anything and later put
down the intercom handset. Then I immediately went to Tower B
level 17 and tenant of B-17-2 opened the door and the stereo noise can
be heard from level B-16-2. I explained that I had called B-16-2 and
informed him to stop. Shortly, afterwards the noise stopped.

Then I proceed to Level 15 for inspection purpose and I met with

tenant of B-15-2 and I also explained to him that I had called B-16-2
and informed him to stop playing the stereo so loudly. He nodded and
closed the door then. This took place around 3.50 am.

After that I walked down to the guard house and later went for
patrolling. Around 4.17 am Mr Robert Khoo came into the guard
house and demanded from my colleagues to see me. I returned to the
guard house to meet him. When I met him, he complained about the
past incidents of B-17-2 claiming he was making noises and no actions
were taken by the Management. He further enquired on the reasons
the guard had acted so efficiently to attend to his complaint lodged by
other residents."

[29] The defendants also relied on numerous emails sent by residents to the
management to complain about the incident on 21 November 2013.

[30] On the other hand, the plaintiff relied on his bare denial and the statutory
declaration of Arjun stating that the patrol guard on duty had informed him
that the incident did not take place. I am faced with two conflicting versions of
the facts.

[31] I accept that a court should not seek to resolve issues of fact without cross-
examination where there is credible affidavit evidence on each side. It would
follow the court need not hold a trial in circumstances in which, on a full
examination of the evidence, the evidence asserted in the affidavits on one side
is simply incapable of being believed.

[32] The question that needs to be addressed therefore is whether the evidence
asserted in the affidavits of the plaintiff is incapable of believe. In my view, the
answer is yes.

[33] In Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 1
MLRA 95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357, the Court
of Appeal held that a trial judge when deciding whether to accept or reject the
 Robert Khoo Keat Hoe
pg 10 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

evidence of a witness, is required to test it against relevant criteria. He must

take into account the presence or absence of any motive that a witness may
have in giving his evidence. Where contemporary documents exists, he must
test the oral evidence of a witness against this. He must also test the evidence
of a particular witness against the probabilities of the case.

[34] Applying these tests to the instant case, it is plain that the residents who
have affirmed the statutory declarations and sent emails to the management
have no reason or motive to concoct the story about the incident. There is no
evidence of any animosity between them and the plaintiff, and none is
suggested. In the circumstances, it is improbable that the residents and the
management would have fabricated this incident. They stand to gain nothing
by defaming him. The police report and the report by the security company
provides crucial support to the defendants version of the facts.

[35] In the face of this credible evidence, the plaintiff's bare denial that the
incident did not take place is incapable of belief. Arjun's statutory declaration
does not support the plaintiff's version of the facts as subsequent to his first
statutory declaration, he gave a further statutory declaration to deny his
version of the story given to the plaintiff by explaining that he did not
understand the contents of his statutory declaration which he had affirmed at
the plaintiff's behest. In his second statutory declaration, Arjun confirmed that
the incident had taken place according to the Incident Report.

[36] In respect of Arjun's retraction of his first statutory declaration, the

plaintiff argued that he had been coerced by the management corporation to
make the second statutory declaration. Arjun must therefore be examined at
the trial to determine which of his statutory declarations he chooses to stand
on. This argument, in my view, has no merit. It is evident that the testimony of
Arjun would carry no evidential value in this case as he was not present at the
time the alleged incident . His knowledge about the incident is limited to what
was purportedly conveyed to him by the patrol guard on duty. Arjun's
evidence is inadmissible hearsay for the purpose of proving that the incident
did not take place.

[37] I am satisfied on the affidavit evidence that defendants have made out
their defense of justification.

[38] In the light of my decision on the defense of justification, it is strictly not

necessary to address the defense of qualified privilege. However, I will address
it in deference to the detailed arguments received from both parties.

Qualified Privilege

[39] The common law defense of qualified privilege was succinctly described
by Lord Atkinson in Adam v. Ward [1917] A C 309 at 334:

"A privileged occasion is an occasion where the person who makes a

communication has an interest, or a duty, legal, social or moral, to
make it to the person to whom it is made, and the person to whom it is
 Robert Khoo Keat Hoe
[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 11

made has a corresponding interest or duty to receive it. This

reciprocity is essential."

[40] In Mallan v. A M Bickford & Sons, Limited [1915] SALR 47, the court held
that (at 84):

It may be accepted as a well-established rule that some duty or interest

must exist in the party to whom the communication is made as well as
in the party making it. The duty or interest may be common to both
parties, but this is not essential. It is enough if there is a duty or
interest on one side, and a duty or interest, or interest or duty (whether
common or corresponding or not) on the other.

[41] In S Pakianathan v. Jenni Ibrahim [1988] 1 MLRA 110; [1988] 2 MLJ 173;
[1988] 1 CLJ 233, the Supreme Court approved and applied the duty-interest
test. The Court observed (at 178):

"However, there are occasions upon which, on grounds of public

policy and convenience, a person may, without incurring legal
liability, make statements about another which are defamatory and in
fact untrue: Watt v. Longsdon [1930] 1 KB 130. These occasions are
called occasions of qualified privilege. A communication made bona
fide upon any subject-matter in which the party communicating has an
interest, or in reference to which he has a duty, is privileged, if made
to a person having a corresponding interest or duty although it
contains a criminatory matter which, without this privilege, would be
slanderous and actionable: Harrison v. Bush (1885) 5 E & B 344; 119
ER 509. The duty may be legal, social or moral, and the person to
whom the communication is made must have a corresponding interest
or duty to receive it. The reciprocity is essential: Adam v. Ward [1917]
AC 309 at 334.

[42] The plaintiff contended that that the defendants were not entitled to rely
on the defense of qualified privilege as they have failed to meet the two
requirements laid down in the case of Reynolds v. Times Newspaper Ltd [2001]
2 AC 127, and Khalid Yusoff v. Pertubuhan Berita Nasional Malaysia
(BERNAMA) & Ors [2014] 6 MLRH 486; [2014] 8 CLJ 337. The two
requirements that a party raising qualified privilege must prove (a) that the
publication concerned a matter of public interest; and (b) that the steps taken
to gather, verify and publish the information were responsible and fair.

[43] The plaintiff contended that the first requirement indicates that qualified
privilege is a form of defense available to a newspaper or other media-related
entities, tracing its roots to the basis of duty of the press to the public at large.
The defendants owed no such duty to the residents to publish notices as their
role is primarily to manage and maintain the condominium, not reporting
everything that goes on in its daily business.

[44] The plaintiff further argued that the second requirement was also not
 Robert Khoo Keat Hoe
pg 12 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

satisfied as the defendants failed to show that they had taken steps to gather,
verify and publish the information fairly and responsibly. The defendants had
issued the Notice without contacting him to verify the complaints or giving
him a fair opportunity to explain himself , and without conducting an
independent and impartial investigation. They also failed to interview his
immediate and nearby residents and had seen it fit to merely interview the
residents who had complained about the alleged incident to the management.

[45] The two contentions advanced by the plaintiff were addressed in Kearns v.
General Council of the Bar [2003] 2 All ER 534. The facts of the case are set out
in the head notes as follows. After receiving a request for guidance from a
member of the Bar on a recent and unfamiliar development in the way certain
barristers were being instructed, the head of the Bar Council's Professional
Standards and Legal Services Department, S, sent a circular letter to all heads
of chambers, senior clerks and practice managers, stating that the claimants
were not solicitors and that it would be improper for a barrister to accept work
from them unless certain specified conditions were satisfied. Two days later, S
sent a letter of apology and correction to all recipients of the original letter,
stating that the claimants were indeed a firm of solicitors, that they were
therefore entitled to instruct counsel and that the mistake had been due to an
administrative error on the part of the Bar Council. In subsequent proceedings
for defamation brought by the plaintiffs in relation to the original letter, the
Bar Council relied on the defense of qualified privilege. The plaintiffs did not
plead malice, and the Bar Council applied for summary dismissal of the claim.

[46] The judge granted the application, holding that the case was a classic one
of qualified privilege based on an existing relationship, and on a common and
corresponding interest in the subject matter of the letter, and that in such cases,
unlike those in which privilege was claimed on the basis of a moral or social
duty, it was not necessary to evaluate the quality of the information. The
plaintiff appealed. On appeal to the Court of Appeal, the plaintiffs contended
that the question whether qualified privilege attached to any particular
occasion or communication always depended on the facts. They relied in
particular on S's alleged failure to verify the information.

[47] The Court of Appeal made the following observations about Reynold's
case:

It is clearly established that in cases of publication to the world at large

'the steps taken to verify the information' (item 4 in Lord Nicholls of
Birkenhead's non-exclusive list of matters to be taken into account (see
Reynolds v. Times Newspapers Ltd [1999] 4 All ER 609 at 626, [2001]
2 AC 127 at 205)) together with other such circumstances concerning
the quality and reliability of the facts asserted, may be crucial in
deciding whether qualified privilege attaches. Reynolds' case,
however, applies only to media publications. As this court said in
Loutchansky v. Times Newspapers Ltd (No 2) [2001] EWCA Civ
1805,[2002] 1 All ER 652, [2002] QB 783:

'[1]...the New Zealand Court of Appeal in Lange v. Atkinson

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[2014] MLRHU 1034 v. Lee Wei Keat @ Jerry & Anor pg 13

([2000] 8 BHRC 400) was surely right to have recognized the

striking departure which Reynolds' case made from the earlier
approach. Reynolds privilege (as we shall call it), although
built upon an orthodox foundation, is in reality sui generis.

'[2] Whereas previously it could truly be said of qualified

privilege that it attaches to the occasion of the publication
rather than the publication, Reynolds privilege attaches, if at
all, to the publication itself: it is impossible to conceive of
circumstances in which the occasion of publication could be
privileged but the article itself not so. Similarly, once Reynolds
privilege attaches, little scope remains for any subsequent
finding of malice..

'[3]...Once Reynolds privilege is recognized, as it should be, as

a different jurisprudential creature from the traditional form of
privilege from which it sprang, the particular nature of the
"interest" and "duty" which underlie it can more easily be
understood.

'[4]...in this class of case the question whether the publisher

has behaved responsibly is necessarily and intimately bound
up with the question whether the defense of qualified privilege
arises. Unless the publisher is acting responsibly privilege
cannot arise. That is not the case with regard to the more
conventional situations in which qualified privilege arises. A
person giving a reference or reporting a crime need not act
responsibly: his communication will be privileged subject only
to relevance and malice.'

In cases which do not concern Reynolds privilege, whether or not

steps are taken to verify information may be relevant in deciding
whether the maker of a statement protected by qualified privilege has
been guilty of actual malice so as to lose that privilege. But the
question now arising is when is it relevant at the earlier stage, in
deciding whether qualified privilege attaches in the first place?

The present appeal concerns neither media publications nor an

assertion of malice. The question arises here in the context of a
communication between the General Council of the Bar (the Bar
Council) and its 10,132 members. The offending publication was a
letter written by Mr Mark Stobbs, the head of the Bar Council's
Professional Standards and Legal Services Department to all heads of
chambers and senior clerks/practice managers. The letter concerned
the Bar's Code of Conduct. It was written in the mistaken belief that
the appellants are not solicitors. Undoubtedly it was libelous.
Undoubtedly it was untrue. For the purposes of this appeal we must
assume it was unverified. Was it nevertheless a publication made on
an occasion protected by qualified privilege?"
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pg 14 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

[48] The passage illustrates that the plaintiff's contention that the defense of
qualified privilege is available to only newspapers and media-related entities is
incorrect as the requirements laid down in Reynold are only applicable to
media publications. The law with regard to non-media publications, however,
is different. In non-media publications, the defense of qualified privilege is
available to a person who has a legal, social or moral duty to notify the person
receiving the information. The applicable test is the common law interest/duty
test.

[49] On the second question as to whether the defense of qualified privilege

will be lost where there is a failure to verify the information before publication,
the Court of Appeal in Kearns case held:

"When is verification a relevant circumstance in determining whether

or not a defamatory communication is protected by qualified
privilege? That, in the last analysis, is the question raised by this
appeal.

In the context of communications between those in an established

relationship, the question whether a defamatory publication had been
adequately investigated or verified went to the issue of malice, not to
the issue of whether the occasion of the communication had been
privileged. Cases where the communicator and the communicate were
in an existing and established relationship (irrespective of whether
within the relationship the communications between them related to
reciprocal interests or reciprocal duties or a mixture of both) were to
be distinguished from cases where no such relationship had been
established and the communication was between strangers (or at any
rate had been volunteered otherwise than by reference to their
relationship). That distinction was a more helpful categorization than
the distinction between 'common interest' and 'duty-interest' cases.
Once the distinction was made in that way, it was understandable that
the law should attach privilege more readily to communications
within an existing relationship than to those between strangers.

In the instant case, the Bar Council had given a ruling in the context of
an established relationship between it and the Bar which, with regard
to relevant communications between them, necessarily attracted
qualified privilege. It did not matter whether S and the Bar Council
were properly to be regarded as owing a duty to the Bar to rule on
questions of professional conduct such as those that had arisen, or as
sharing with the Bar a common interest in maintaining professional
standards. What mattered was that the relationship between them was
an established one which plainly required the flow of free and frank
communications in both directions on all questions relevant to the
discharge of the Bar Council's functions. Accordingly, the appeal
would be dismissed.

[50] The learned author David Price in his book entitled Defamation Law,
Procedure & Practice (4th edition) stated at chapter 12 para 12.09:
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"There is no obligation on the defendant to prove that he took

reasonable care in relation to the publication. Provided that the
relevant duties and/or interest exist, the defense will not be lost merely
because the defendant was negligent. For example the failure to verify
a defamatory allegation before disseminating it to other legitimately
interested party will not generally prevent the defendant from claiming
qualified privilege, if it turns out that the allegation is untrue. This is to
be contrasted with Reynolds qualified privilege (Ch 13), which has in-
built requirement to behave reasonably and responsibly in order to
come within the defense."

[51] The decision in Kearns v. General Council of the Bar ([49] supra) concludes
both points in the defendants favor. It would follow that the defendants would
be entitled to rely on the defense of qualified privilege if they can show that
they have a duty or interest to notify the residents of the incident, and the
residents had a corresponding interest to receive it because of a common
interest in the subject matter shared with them.

[52] Having dealt with the legal approach, I now turn to consider whether the
interest/duty test has been satisfied in the present case. Hampshire Park is a
residential property where residents live in the same building and share the
same common property. They are entitled to have peace and quiet enjoyment
of their property. This is only possible if the residents observe the relevant rules
and laws. The defendants have statutory duties imposed on them to receive
complaints by the residents and to act on these complaints in order to
safeguard the health and safety of the residents Hampshire Park. The
defendants and the residents have a common interest in ensuring that
untoward incidents do not occur at their condominium so that everyone can
live in peace in their units.

[53] The defendants have a collective role to ensure that those who reside in
Hampshire Park abide by all applicable laws and by- laws, including the
following:

Rule 30 of the House Rules provides:

"Noise and Offensive Conduct

Occupants shall not permit any noise or sound from talking, singing or
playing of any musical instrument or the use of any gramophone,
wireless, television, radio, hi-fi equipment, LD, VCD, VCR, DVD or
recording instrument or otherwise at such volume that may cause a
nuisance or annoyance to any other occupiers of Hampshire Park at
all times particularly after 12.00 midnight."

The third schedule to s 44 of the Strata Titles Act 1985 provides:

"Duties of proprietor
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pg 16 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

(1) A parcel proprietor shall:-

(e) not use or permit to be used in such a manner or for such a purpose
as to cause nuisance or danger to any other proprietor or the families
of such proprietor;

(2) A proprietor shall use and enjoy the common property in such a
manner as not to interfere unreasonably with the use and enjoyment
thereof by other proprietors or their families or visitors."

[54] On the evidence, it is clear that the interest/duty test has been satisfied
and qualified privilege attached to the occasion. Plainly the defendants had a
duty to issue the Notice pursuant to the complaint made. The publication of
the Notice to the residents was therefore on a occasion of qualified privileged
as there was a common interest between the defendants and the residents in
the subject matter of the impugned Notice.

[55] I now turn to the plea of malice. It is trite law that defense of qualified
privilege will be defeated if the plaintiff can show that there was malice on the
part of the defendants. See Datuk Yong Teck Lee & Anor v. Datuk Harris Mohd
Salleh [2014] 6 MLRA 99; [2014] 6 CLJ 649 In this case, the plaintiff argued
that malice is made out because the defendants had failed to carry out a proper
investigation and/or verification of the complaints before the Notice was
issued.

[56] The classic judicial exposition of the definition of malice would seem to
reside in the dicta of Lord Diplock in Horrocks v. Lowe [1975] AC 135,
wherein His Lordship stated (at 149):

"So the motive with which the defendant on a privileged occasion

made a statement defamatory of the plaintiff becomes crucial. The
protection might, however, be illusory if the onus lay on him to prove
that he was actuated solely by a sense of the relevant duty or a desire
to protect the relevant interest. So he is entitled to be protected by the
privilege unless some other dominant and improper motive on his part
is proved. 'Express malice' is the term of act descriptive of such a
motive. Broadly speaking it means malice in the popular sense of a
desire to injure the person who is defamed and this is generally the
motive which the plaintiff sets out to prove. But to destroy the
privilege the desire to injure must be the dominant motive for the
defamatory publication; knowledge that it will have that effect is not
enough if the defendant is nevertheless acting in accordance with a
sense of duty or in bona fide protection of his own legitimate interests.

Lord Diplock continued (at 150-151) to hold:

"Judges and juries should, however, be very slow to draw the inference
that a defendant was so far actuated by improper motives as to deprive
him of the protection of the privilege unless they are satisfied that he
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did not believe that what he said or wrote was true or that he was
indifferent to its truth or falsity. The motives with which human
beings act are mixed. They find it difficult to hate the sin but love the
sinner. Qualified privilege would be illusory, and the public interest
that it is meant to serve defeated, if the protection which it affords
were lost merely because a person, although acting in compliance with
a duty or in protection of a legitimate interest, disliked the person
whom he defamed or was indignant at what he believed to be that
person's conduct and welcomed the opportunity of exposing it. It is
only where his desire to comply with the relevant duty or to protect
the relevant interest plays no significant part in his motives for
publishing what he believes to be true that 'express malice' can
properly be found."

[57] Before I address the question of whether the Notice was actuated by
malice, I will briefly deal with an objection taken by the defendants based on
O 78 r 3(3) of the ROC which states:

"Where in an action for libel or slander the plaintiff alleges that the
defendant maliciously published the words or matters of the facts on
which he relies in support of the allegation or matters are fair
comment on a matter of public interest or were published upon a
privileged occasion and the plaintiff intends to allege that the
defendant was actuated by express malice, he must serve a reply giving
particulars of the facts and matters from which the malice is to be
inferred.

[58] The defendants pointed out that the plaintiff had not filed a Reply to their
Defense. r 3 requires a plaintiff who wishes to rely on malice to plead
particulars of malice in his Reply. In light of this omission, the plaintiff was
not entitled to rely on a plea of malice to defeat the defense of qualified
privilege.

[59] The plaintiff accepted that it did not file a Reply to the Defense, but
pointed out that malice was expressly pleaded and sufficiently particularized in
the statement of claim. There was an express averment in the statement of
claim that the publication of the Notice was actuated by malice. In the
circumstance, there was no necessity to file a reply to regurgitate the pleadings
on malice. I agree.

[60] The plaintiff's basis for complaining there was malice is set out in para 22
of his statement of claim : that the defendants had failed to carry out a proper
investigation and/or verification of the complaints before the Notice was
issued. It is true that the defendants did not seek the plaintiff's explanation
before the issuance of the Notice, but that does not ipso facto indicate there
was malice. The defendants were inundated with complaints about the
incident, both from the residents and the guards on duty. In the circumstances,
the defendants had good reason to conclude that the incident did in fact occur.
On the evidence it is clear that the failure to raise it with the plaintiff was not
because of any improper motive or to defame the plaintiff. In my judgment,
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pg 18 v. Lee Wei Keat @ Jerry & Anor [2014] MLRHU 1034

the omission does not translate into malice so as to destroy the defense of
qualified privilege.

Conclusion

[61] I conclude that the plaintiff's claim for libel damages against the
defendants is bound to fail for the reasons given. Therefore, it is a lost claim
without any value. I am satisfied that the claim should be struck out under O
18 r 19(1) on the basis that it is a plain and obvious case where the plaintiff has
no real prospect of succeeding on his claim and there is no other compelling
reason for the case to go for trial.

[62] Consequently I grant the application and strike out the plaintiff's claim
with costs of RM10,000.00.