Introduction

In the recent case of Seema Elizabeth Isoy v Tan Sri David Chiu Tat-Cheong [2024] CLJU 1180, the Federal Court held that a half-truth statement that presents a false impression and that harms the reputation of a person is defamatory. This kind of statement can safely be considered false in the circumstances.

The Federal Court held that posting a half-truth statement (deliberately omitting a known material fact) and requesting the reader to google for more information is unfair to the person which the half-truth statement is about.

Background Facts

The Appellant, Seema Elizabeth Isoy, is the registered owner of a unit in Waldorf & Windsor Tower Serviced Apartments (“W&W”) developed by Malaysia Land Properties Sdn Bhd (“Mayland”).

The Appellant was a committee member of the W&W Management Corporation (“MC”). The Appellant and 55 other persons consisting of unit owners or their representatives were part of the W&W WhatsApp Group.

The Respondent, Tan Sri David Chiu Tat-Cheong, is the chairman and founder of Mayland.

There were several disputes involving Mayland and W&W wherein in one of the cases, the High Court decided that Mayland and defrauded and/or made a false representation to W&W owners in respect of a common area in W&W. The Court of Appeal affirmed the decision of the High Court and leave to appeal to the Federal Court was not granted.

On 17.8.2017, the Appellant sent a text message (“Impugned Statement”) to the W&W WhatsApp Group (excerpt as follows):

In order for owners to know all the facts, I believe we have to step back even more and ask “who is Mayland?” Mayland is the CHIU family. So who is this Chiu family? Let’s have a very brief look at the publicly known facts about his family: –        The Chiu family is an extremely rich and successful family originating from China, then based in Hong Kong. Now with business in many countries, including Malaysia. I’m always happy for people’s happiness and good fortune but.. –        Deacon Chiu (Sr.) has been in the past arrested and charged with conspiracy to falsify documents of the Far East Bank, where they were the major shareholders. For plotting to defraud the Commissioner of Banking by making false claims concerning the ownership of companies to which the bank had made advances of $ 352.5 million. –        Duncan Chiu (Deacon Sr’s son) has in the past been arrested for allegedly breaching the Theft Ordinance and the Companies Ordinance. –        David Chiu (Deacon Sr’s son) has been in the past arrested and charged for the same offenses as Deacon Sr. He also faced charges of conspiring to falsify documents purporting to show that more than $ 246 million in credit facilities had been granted to the bank by various companies. And now the climax to this family saga: –        The same don (David Chiu) is the founder and Chairman of Mayland !!! Mayland has been convicted of Fraud and Misrepresentation against W&W owners: At High Court level At Court of Appeal level At Federal Court level The apple doesn’t fall far from the tree… Please google these names to read more. “the same son”

High Court

Dissatisfied with the Impugned Statement, the Respondent brought an action against the Appellant for defamation.

After a full trial, the High Court dismissed the Respondent’s claims. The High Court found that the words referring to the Respondent in the Impugned Statement were not defamatory and that the Appellant established the defence of justification as the Impugned Statement was substantially true.

Court of Appeal

The Court of Appeal held that the Impugned Statement was defamatory. The words in the statement conveyed to the ordinary man that the Respondent is dishonest and a fraudster. The statement read as a whole, in its natural and ordinary meaning had the tendency to disparage and injure the Respondent’s standing, character, and reputation. The statement also tended to excite the adverse opinion of those within the W&W WhatsApp Group against the Respondent.

The Court of Appeal also found that the posting of the Impugned Statement was actuated with malice. Although the Appellant was fully aware of the fact the Respondent was acquitted from the said charge mentioned in the Impugned Statement long ago, she intentionally omitted to mention it in the statement. The Appellant had posted a half-truth statement and requested the reader to google for more information. As malice had been established, the Court of Appeal held that the Appellant’s defence of qualified privilege and fair comment was unsustainable.

The Court Appeal set aside the decision of the High Court. The Respondent was awarded RM 100,000.00 as damages and a permanent injunction was granted to restrain the Appellant from publishing or spreading the Impugned Statement or similar defamatory words concerning the Respondent.

Federal Court

The Federal Court granted leave to appeal to the Appellants. The appeal before the Federal Court centers on the effect of a half-truth statement in defamation law in Malaysia, particularly whether a half-truth statement constitutes a false statement.

(i) Elements Of Defamation

The key elements of defamation are well established. A plaintiff/ claimant must prove on a balance of probabilities that:

(a) the words are defamatory

(b) the words refer to the Plaintiff

(c) the words are published

(ii) Defamatory Test

The test in determining whether the words are defamatory, is that those words in their natural and ordinary meaning:

(a) tend to lower the plaintiff in the estimation of a reasonable man in society

(b) impute the plaintiff’s dishonourable conduct or lack of integrity

(c) expose the plaintiff to hatred, contempt, or ridicule

(d) tends to excite against the plaintiff the adverse opinion of others.

The ordinary and natural meaning of the words must be considered in the context of the whole text or message, in its entirety and not in isolation. The Court may consider the literal meaning of the words or their implied, inferred innuendo, or indirect meaning. This also includes the implications or inferences that can be drawn from the words.

(iii) Half-Truth Statement

In the present case, it was not disputed that the Impugned Words were published by the Appellant in the W&W WhatsApp Group, which referred to the Respondent. The only element left to be proven is whether the Impugned Words were defamatory.

The Respondent in the present case complained that the Appellant’s Impugned Statement was not the whole truth of the material facts. It was not disputed that the Respondent was charged with a fraudulent act but was acquitted of the said charge.

Although the charge against the Respondent mentioned in the Impugned Statement was true, the evidence was established that when the Appellant published the Impugned Statement in the W&W WhatsApp Group, it was within the knowledge of the Appellant that the Respondent was acquitted of the charge. However, the Appellant omitted to state this material fact.

The Appellant in her testimony revealed that she did not include the Respondent’s acquittal in the Impugned Statement as she already asked the readers to google for more information. The Appellant also did not state the Respondent was convicted of the charge.

Having perused the Impugned Statement in totality, the Federal Court observed that:

(a) The sting effect was that, the Respondent was charged with the fraudulent act same as his father, Deacon Sr. The imputation to the readers was that the Respondent was not a person of good character and tended to excite against the Respondent the adverse opinion of others.

(b) If the fact that the Respondent was acquitted of the charge mentioned by the Appellant in the Impugned Statement, which is in the Appellant’s knowledge, it certainly would have neutralized the sting in the eyes of the readers.

(c) The defence that the reader was asked to google for more information on the matter could not neutralise the defamatory nature of the Impugned Statement.

(d) The charging of the Respondent without stating that the Respondent was acquitted, in the circumstances, is a half-truth statement that harms the Respondent.

(e) The statement made is not substantially true and false in substance. This is prejudicial and unfair to the Respondent as he was unable to justify the criminal act imputed by the impugned statement.

The Federal Court held that:

(a) The full truth that the Respondent was acquitted was deliberately not disclosed in the Impugned Statement and this placed a different complexion and effect on the statement.

(b) The message without the fact that the Respondent had been acquitted, tainted the Respondent’s character and conduct and the Respondent was held in ridicule, reprobation, and contempt.

(c) This established the defamatory effect of the Impugned Statement.

(d) Although the charge against the Respondent was true, the omission to reveal that the Respondent was acquitted of the charge, makes the statement false in substance.

(e) The half-truth statement by the Appellant is not substantially true, presenting a false impression that can be considered as a false statement viewed in totality, that adversely affects the Respondent’s reputation. Therefore, the Impugned Statement is defamatory of the Respondent.

(iv) Defence Of Justification, Qualified Privilege & Fair Comment

The Appellant in the present case raised the defence of justification, qualified privilege and fair comment.

The Federal Court was of the view that an action of deliberately publishing a half-truth statement that presents a false impression of a person which affects the person’s reputation and further expects the reader of the impugned statement to do a further search on the information is conduct actuated with malice.

If the whole truth was revealed, it presents a completely different complexion of the published statement when read by readers.

Having considered the evidence in totality, the Federal Court found that the Impugned Statement concerning the Respondent was actuated with malice. Therefore, the defence of qualified privilege and fair comment is defeated and untenable.

Further, the Appellant’s defence of justification is unsustainable as the Impugned Statement was not substantially true and presented a false impression in the readers’ eyes. The defence of justification is founded on the truth of the statement or the statement made is substantially true.

Conclusion

The Federal Court unanimously affirmed the decision of the Court of Appeal which set aside the decision of the High Court.

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About the authors

Chew Jin Heng
Associate
Dispute Resolution
Halim Hong & Quek
[email protected]