LEE THYE @ LEE SHAN TOO vs LEE FONG LING (MJLR2009a18) Zabariah Yusof,Malaya
1
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO: S5-23-90-2008
ANTARA
LEE THYE @ LEE SHAN TOO ………..…PLAINTIF
DAN
LEE FONG LING …………DEFENDANT
GROUNDS OF JUDGMENT
This is the defendant’s application to strike out the Plaintiff’s
Statement of Claim pursuant to 0 18 r 19 (1) (a) or (b) or (c) or (d)
RHC.
Plaintiff’s Claim:
The claim by the Plaintiff against the Defendant is for defamation
based on a letter dated 22.11.2007 addressed to M/S Atma Singh
Veriah & Co wherein it is alleged that the defendant had falsely and
with malice has written and published defamatory words about the
Plaintiff and his practice as an advocate and solicitor.
2
The grounds of the defendant’s application premised on the following:
a) The said letter and the statement contained therein was written
and issued by M/s Siew under occasion of absolute or qualified
privilege;
b) Mis Siew did not act or has been actuated by malice against the
Plaintiff;
c) The Defendant has never published the said Letter to a third
party.
Brief Facts:
Plaintiff is the sole proprietor of a legal firm S.T. Lee and Partners.
Plaintiff and one Lee Shin Kuang @ Lee Sen Bin (LSK) i.e. father to
the Defendant are registered owners of a shoplot in Kuala Lumpur
whereby LSK owns 2/3 share of the property and the Plintiff owns 1/3
share of the same.
Through a Tenancy Agreement dated 1.5.2001 LSK had let the
property to Harian Shoes Sdn Bhd.
Defendant was the solicitor who represented LSK in the preparation
of the Tenancy Agreement and practice under the name of Tetuan
F.L. Lee & Co.
Following a dispute between the Plaintiff and LSK at or around
October 2007 in relation to the property Plaintiff had commenced a
civil suit dated 13.11.2007 against LSK claiming for 1/3 of the rental
proceeds which had been paid by the tenant to LSK in the amount of
3
RM 304, 000.00. At the same time solicitors to the Plaintiff issued a
letter dated 13.11.2007 to the defendant questioning the defendant’s
duty in preparing the Tenancy Agreement.
To answer to the query by the Plaintiff’s solicitor’s letter defendant
had appointed Tetuan Siew to act as his solicitor. Following that
Tetuan Siew had replied to the said letter. This reply is the subject
matter of the present suit.
THE COURT’S FINDING:
Whether the alleged words are defamatory of the Plaintiff
The alleged defamatory words or statements of the Plaintiff contains
in a letter which is a reply to the Plaintiff’s letter dated 13.11.2007.
For purposes of clarity, I reproduced the relevant portion of the said
letter from the Plaintiff dated 13.11.2007 which resulted in the
defendant replying:
“MADAM LEE FONG LING
c/o FL Lee & Co,
Advocates and Solicitors,
……….
Dear Madam,
RE: Tenancy Agreement dated 1st May 2001
Made between Lee Shin Kuang @ Lee Sen Bin with
Harian Shoes Sdn Bhd for
Premises No. 501, Jalan Tuanku Abdul Rahman,
Kuala Lumpur
4
We act for Lee Thye @ Lee Shan Too…….
1.We are instructed to write to you as follows:
(i) that you were acting as solicitor for Lee Shin Kuang
@ Lee Sen Bin in a tenancy Agreement dated 1st May
2001;
(ii)…………..
(iii)……………
2. Being the solicitor representing Lee Shin Kuang @
Lee Sen Bin as thye Landlord, have you obtained any
specific authority from our client and the other coowner
Lee Shuan Chan? Can you show the authority
(if any);
3. Have you ever informed our client and the other coowner
that an agreement was signed by Lee Shin
Kuang @ Lee Sen Bin with the tenant;
4. Did you give any stamped copy of the tenancy
agreement to out client, if any? If not, why not?;
5. We are informed that Lee Shin Kuang @ Lee Sen
Bin is your father. Being a solicitor you have
misrepresented the facts to the tenant and colluded
with your father to defraud our client;
6. Our client has been informed that Lee Shin Kuang
@ Lee Sen Bin has collected from the tenant a sum of
RM 912, 000.00 from the tenant from 1st may 2001 to
31st August 2007 as rental.
In view of the above, we are instructed by our client to
instruct yopu to show to our client the authority OR to
give a satisfactory explanation within seven (7) days
5
from the date hereof, failing which our client will lodge
a complaint to the bar Council on your misconduct.”
Herein below is the relevant portion of the said reply by the defendant
which consists of the alleged defamatory words/statement:
“Further, your client’s freshly concocted allegations of
misrepresentation fraud and/or misconduct against
our client is a knee jerk reaction towards a civil claim
and/ or demand and/or complaint by the said Lee
Shin Kuang @ Lee Sen Bin (our client’s father)
against your client for breach of trust and/or fraud
and/or misconduct the facts of which are all well
within your client’s knowledge.”
From the words or statements in the reply by the Defendant, I do not
see how those words or statement can be defamatory. The reply by
the Defendant is just an opinion of why the “concocted allegations of
misrepresentation” was made by the Plaintiff i.e. a consequent of the
civil suit filed by his client against the Plaintiff’s client. Both parties
have not addressed this point in their submissions.
Both the letters by the Plaintiff dated 13.11.2007 and the reply by the
Defendant dated 22.11.2007 have to be read together to understand
the true intent and purpose of the reply by the Defendant.
Clearly, the words is not defamatory of the Plaintiff within the
meaning as stated by the Plaintiff in paragraph 4 of the Statement of
Claim.
6
The words/statement was not published to third parties.
Perusing through the statement of claim, nowhere in the statement of
claim does the Plaintiff avers that there is publication to third parties.
Paragraph 5 only states:
“Oleh kerana penyiaran perkataan-perkataan tersebut
Plaintif telah tercedera dalam kelakuan,
kebolehpercayaan dan reputasinya.”
Publication is an essential ingredient for the tort of defamation action.
The Plaintiff’s claim for defamation certainly fails as to this specific
ingredient.
In any event, it was a communication between the solicitors in the
ordinary course of business in relation to the subject matter i.e. the
proceeds of a tenancy agreement. (Refer to Mahadevi a/p
Nadchatiram v Thiruchelvasegaram a/l Manickavasegar [2001] 2
AMR 2111)
The words/statement was written on occasion of absolute or qualified
privilege
I am of the view that the letter allegedly defamatory of the Plaintiff is
written on an occasion of absolute or qualified privilege. The
defendant wrote the letter while acting on behalf of his client and in
the ordinary course of his duty as solicitor for his client. (Refer to the
case of Zainudin bin Muhammad v NEC System Integration
Construction Ltd & Ors [2000] 6 MLJ 763).
7
There is no malice or mala fide being referred in the statement of
claim. On this, I refer to the Federal Court case of John Lee & Anor
v Henry Wong Jan Fook [1981] 1 MLJ 108 where the Federal Court
in its judgment states thus:
“…..As for malice, it has already been observed that
the statement of claim makes not the slightest
reference to any claim of malice on the part of the
appellants. If, as a matter of pleading, malice could
nevertheless be inferred into the statement of claim,
then quite clearly, it was not supportable by any
evidence, intrinsic or otherwise.”
Therefore, from the above, it is clear that the Plaintiff does not have a
reasonable cause of action against the Defendant. The claim is
frivolous and vexatious and is an abuse of courts process.
Hence, the application by the Defendant to strike out the Plaintiff’s
Writ and Statement of Claim is allowed with costs.
Datin Zabariah Mohd Yusof
Tarikh 10.7.2009
Bagi Pihak Plaintiff : Encik D. R. John
Tetuan Atma Singh Veriah.
Bagi Pihak Defendant : Puan Marianne
Tetuan Shui Tai.
8
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN SIVIL)
GUAMAN SIVIL NO: S5-23-90-2008
ANTARA
LEE THYE @ LEE SHAN TOO ………..…PLAINTIF
DAN
LEE FONG LING …………DEFENDANT
GROUNDS OF JUDGMENT
This is the defendant’s application to strike out the Plaintiff’s
Statement of Claim pursuant to 0 18 r 19 (1) (a) or (b) or (c) or (d)
RHC.
Plaintiff’s Claim:
The claim by the Plaintiff against the Defendant is for defamation
based on a letter dated 22.11.2007 addressed to M/S Atma Singh
Veriah & Co wherein it is alleged that the defendant had falsely and
with malice has written and published defamatory words about the
Plaintiff and his practice as an advocate and solicitor.
2
The grounds of the defendant’s application premised on the following:
a) The said letter and the statement contained therein was written
and issued by M/s Siew under occasion of absolute or qualified
privilege;
b) Mis Siew did not act or has been actuated by malice against the
Plaintiff;
c) The Defendant has never published the said Letter to a third
party.
Brief Facts:
Plaintiff is the sole proprietor of a legal firm S.T. Lee and Partners.
Plaintiff and one Lee Shin Kuang @ Lee Sen Bin (LSK) i.e. father to
the Defendant are registered owners of a shoplot in Kuala Lumpur
whereby LSK owns 2/3 share of the property and the Plintiff owns 1/3
share of the same.
Through a Tenancy Agreement dated 1.5.2001 LSK had let the
property to Harian Shoes Sdn Bhd.
Defendant was the solicitor who represented LSK in the preparation
of the Tenancy Agreement and practice under the name of Tetuan
F.L. Lee & Co.
Following a dispute between the Plaintiff and LSK at or around
October 2007 in relation to the property Plaintiff had commenced a
civil suit dated 13.11.2007 against LSK claiming for 1/3 of the rental
proceeds which had been paid by the tenant to LSK in the amount of
3
RM 304, 000.00. At the same time solicitors to the Plaintiff issued a
letter dated 13.11.2007 to the defendant questioning the defendant’s
duty in preparing the Tenancy Agreement.
To answer to the query by the Plaintiff’s solicitor’s letter defendant
had appointed Tetuan Siew to act as his solicitor. Following that
Tetuan Siew had replied to the said letter. This reply is the subject
matter of the present suit.
THE COURT’S FINDING:
Whether the alleged words are defamatory of the Plaintiff
The alleged defamatory words or statements of the Plaintiff contains
in a letter which is a reply to the Plaintiff’s letter dated 13.11.2007.
For purposes of clarity, I reproduced the relevant portion of the said
letter from the Plaintiff dated 13.11.2007 which resulted in the
defendant replying:
“MADAM LEE FONG LING
c/o FL Lee & Co,
Advocates and Solicitors,
……….
Dear Madam,
RE: Tenancy Agreement dated 1st May 2001
Made between Lee Shin Kuang @ Lee Sen Bin with
Harian Shoes Sdn Bhd for
Premises No. 501, Jalan Tuanku Abdul Rahman,
Kuala Lumpur
4
We act for Lee Thye @ Lee Shan Too…….
1.We are instructed to write to you as follows:
(i) that you were acting as solicitor for Lee Shin Kuang
@ Lee Sen Bin in a tenancy Agreement dated 1st May
2001;
(ii)…………..
(iii)……………
2. Being the solicitor representing Lee Shin Kuang @
Lee Sen Bin as thye Landlord, have you obtained any
specific authority from our client and the other coowner
Lee Shuan Chan? Can you show the authority
(if any);
3. Have you ever informed our client and the other coowner
that an agreement was signed by Lee Shin
Kuang @ Lee Sen Bin with the tenant;
4. Did you give any stamped copy of the tenancy
agreement to out client, if any? If not, why not?;
5. We are informed that Lee Shin Kuang @ Lee Sen
Bin is your father. Being a solicitor you have
misrepresented the facts to the tenant and colluded
with your father to defraud our client;
6. Our client has been informed that Lee Shin Kuang
@ Lee Sen Bin has collected from the tenant a sum of
RM 912, 000.00 from the tenant from 1st may 2001 to
31st August 2007 as rental.
In view of the above, we are instructed by our client to
instruct yopu to show to our client the authority OR to
give a satisfactory explanation within seven (7) days
5
from the date hereof, failing which our client will lodge
a complaint to the bar Council on your misconduct.”
Herein below is the relevant portion of the said reply by the defendant
which consists of the alleged defamatory words/statement:
“Further, your client’s freshly concocted allegations of
misrepresentation fraud and/or misconduct against
our client is a knee jerk reaction towards a civil claim
and/ or demand and/or complaint by the said Lee
Shin Kuang @ Lee Sen Bin (our client’s father)
against your client for breach of trust and/or fraud
and/or misconduct the facts of which are all well
within your client’s knowledge.”
From the words or statements in the reply by the Defendant, I do not
see how those words or statement can be defamatory. The reply by
the Defendant is just an opinion of why the “concocted allegations of
misrepresentation” was made by the Plaintiff i.e. a consequent of the
civil suit filed by his client against the Plaintiff’s client. Both parties
have not addressed this point in their submissions.
Both the letters by the Plaintiff dated 13.11.2007 and the reply by the
Defendant dated 22.11.2007 have to be read together to understand
the true intent and purpose of the reply by the Defendant.
Clearly, the words is not defamatory of the Plaintiff within the
meaning as stated by the Plaintiff in paragraph 4 of the Statement of
Claim.
6
The words/statement was not published to third parties.
Perusing through the statement of claim, nowhere in the statement of
claim does the Plaintiff avers that there is publication to third parties.
Paragraph 5 only states:
“Oleh kerana penyiaran perkataan-perkataan tersebut
Plaintif telah tercedera dalam kelakuan,
kebolehpercayaan dan reputasinya.”
Publication is an essential ingredient for the tort of defamation action.
The Plaintiff’s claim for defamation certainly fails as to this specific
ingredient.
In any event, it was a communication between the solicitors in the
ordinary course of business in relation to the subject matter i.e. the
proceeds of a tenancy agreement. (Refer to Mahadevi a/p
Nadchatiram v Thiruchelvasegaram a/l Manickavasegar [2001] 2
AMR 2111)
The words/statement was written on occasion of absolute or qualified
privilege
I am of the view that the letter allegedly defamatory of the Plaintiff is
written on an occasion of absolute or qualified privilege. The
defendant wrote the letter while acting on behalf of his client and in
the ordinary course of his duty as solicitor for his client. (Refer to the
case of Zainudin bin Muhammad v NEC System Integration
Construction Ltd & Ors [2000] 6 MLJ 763).
7
There is no malice or mala fide being referred in the statement of
claim. On this, I refer to the Federal Court case of John Lee & Anor
v Henry Wong Jan Fook [1981] 1 MLJ 108 where the Federal Court
in its judgment states thus:
“…..As for malice, it has already been observed that
the statement of claim makes not the slightest
reference to any claim of malice on the part of the
appellants. If, as a matter of pleading, malice could
nevertheless be inferred into the statement of claim,
then quite clearly, it was not supportable by any
evidence, intrinsic or otherwise.”
Therefore, from the above, it is clear that the Plaintiff does not have a
reasonable cause of action against the Defendant. The claim is
frivolous and vexatious and is an abuse of courts process.
Hence, the application by the Defendant to strike out the Plaintiff’s
Writ and Statement of Claim is allowed with costs.
Datin Zabariah Mohd Yusof
Tarikh 10.7.2009
Bagi Pihak Plaintiff : Encik D. R. John
Tetuan Atma Singh Veriah.
Bagi Pihak Defendant : Puan Marianne
Tetuan Shui Tai.
8
