The plaintiffs were husband and wife. The second plaintiff was at all material time the sole proprietor and principal of 'Starkids Nursery Playschool'. The defendants had enrolled their one year old son ('McCain') at the Nursery. According to the first defendant, there were several occasions where bruises or other injuries were found on McCain's body when she went to fetch him from the nursery. The first defendant also testified that on 11 May 2010 she noticed the skin on the first plaintiff's fingers was very dry and were peeling off. On 14 May 2010, the defendants went back to the nursery and demanded for a refund of the school fees. It was the contention of the defendants that the first plaintiff became angry, trying to unzip his pants and uttered "What do you want me to show you, why should I show you, I show you this lah". As a result of this incident, it was alleged that both the defendants had made or caused three publications which were: (i) a letter of complaint circulated by the first defendant to Jabatan Perkhidmatan Kebajikan Am Negeri Sabah; (ii) the online publication in the website at the web address of www.justicetomyson.blogspot.com (the online publication) regarding the same complaint and (iii) the newspaper article that was reported by PW3. The plaintiffs' claim was for damages premised on the three alleged defamatory publications. The issues that arose were (i) whether the three publications were defamatory; and (ii) whether the defamatory imputations were true pursuant to s. 8 Defamation Act 1957.

Held (first defendant liable to plaintiffs for defamatory comments published on online publication in respect of first plaintiff's skin problem):

(1) The defendants, as parents, were entitled to lodge a complaint to the relevant authority and when such authority was under a legal obligation to hear such complaints, the letter was protected by the concept of qualified privilege. The authority in this case was Jabatan Perkhidmatan Kebajikan Am Negeri Sabah which was the relevant authority dealing with the child care nurseries and as such had the legal obligation to receive complaints similar to that of the first defendant. Further, there was no evidence of malice on the part of the defendants, and as such this letter of complaint was protected by qualified privilege. (para 11)

(1a) The online publication in the context it was published was defamatory. Although the content of the publication was the same as the letter of complaint, the title of the publication was "Jangan Hantar Anak ke Taska Starkids, Likas, Kota Kinabalu'. Hence, the motive of this publication was to inform the public not to send their children to the nursery. The words used had lowered the plaintiffs' reputation in the estimation of right-thinking members of society generally. It would undoubtedly cause others to shun or avoid the plaintiffs bearing in mind the second plaintiff owned a children nursery. Thus, the publication in the Daily Express report was likewise defamatory. (paras 24 & 27)

(2) The first defendant had alleged that the first plaintiff had skin problems. However, the first defendant went further on her online publication and stated that it might be contagious, with the result that she had to justify that comment in law and prove that it was true. There was no evidence in court by any doctor as to who had examined the first plaintiff on his skin problems. Nor was there any evidence of her child or other children in that children nursery that had contracted such skin problem. Accordingly, the first defendant had failed to prove justification for her defamatory comment on the skin issue. (para 34)

(2a) The defendants had accused the first plaintiff of misconduct by showing rude and obscene gesture to them. It was not credible to conclude that the first defendant would make up such a story of the first plaintiff's conduct. The first plaintiff, on the other hand, was defensive over the allegation. Further, there was corroboration in the letter of complaint by the first defendant to Jabatan Perkhidmatan Kebajikan Am Negeri Sabah. The defendants had, on a balance of probability, proved the truth of the allegation of misconduct made on the online publication, and was not liable for it.
(paras 40 & 41)

[Order accordingly.]

Case(s) referred to:

Adam v. Ward [1917] AC 309 (refd)

Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461 CA (refd)

Noor Asiah Mahmood & Anor v. Randhir Singh & Ors [2000] 5 CLJ 407 HC (refd)

Ratus Mesra Sdn Bhd v. Shaikh Osman Majid & Ors [1999] 8 CLJ 499 HC (refd)

S Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771; [1988] 1 CLJ (Rep) 233 SC (refd)

Smith v. Streatfeiled [1913] 3 KB 769 (refd)

Soh Chun Seng v. CTOS-emr Sdn Bhd [2004] 5 CLJ 46 HC (refd)

Toogood v. Spyring [1834] 1 CM & A (refd)

Legislation referred to:

Defamation Act 1957, ss. 3, 8

Other source(s) referred to:

Gatley on Libel and Slander, 9th edn 1998, p 7

Counsel:

For the plaintiff - Lim Pit Kong; M/s PK Lim & Co

For the defendant - Ronny Cham; M/s Ronny Cham & Co

Reported by Suhainah Wahiduddin