THE Penang High Court dismissed the defamation suit filed by businessman Tan Sri Tan Kok Ping against Chief Minister Chow Kon Yeow over remarks concerning Tan’s resignation from the Board of Trustees of the Silver Jubilee Home for the Aged.
In delivering his judgement via Zoom, Justice Datuk Quay Chew Soon thanked both parties in their submissions in helping the court in coming to a decision.
He read out excerpts of the written grounds of judgement which also effectively conveyed the decision on the matter.
“This is an action by the plaintiff against the defendant for defamation. After a full trial, I dismiss the plaintiff’s claim.
“It is my finding that the impugned statements are not defamatory. I further find that the defences or justification, fair comment, and qualified privilege, have been successfully proven,” he said.
Justice Quay explained that the words ‘complain of’ must be looked at as a whole.
“Picking and choosing certain words which are alleged to be defamatory, without putting them in proper context, might be misleading. This is because the words ‘complain of’ should not be read in isolation but ought to be read in its entirety.
“In short, the impugned statements must be considered in the context of the entire press statement in which it appeared, and not in isolation.
“The correct way of pleading, in my view, is to quote the video transcript of the press conference in full, if appropriate, in way of an annexure, to the statement of claim. Then, to highlight the impugned words which are alleged to be defamatory.
“Plaintiff contends that the impugned statements are defamatory. Plaintiff further argues that the impugned statements are half-truth statements which constitute defamation.
“It is my finding that the impugned statements do not bear the defamatory meanings or innuendoes as pleaded by the plaintiff.
“Having read the video transcript of the defendant’s press conference in its entirety, I am satisfied that the impugned statements carry no defamatory meanings nor innuendoes against the plaintiff.
“Indeed, the public criticism against the defendant as documented in the plaintiff’s resignation letter and circulated in his press conference on Dec 1, 2023, warrant response from the defendant,” he said.
Explaining further, Justice Quay said the Dec 1, 2023, impugned statements should be understood to mean the project ought to go through due process.
“They do not contain any innuendo that the plaintiff has been involved in any wrongdoing or mismanagement of the ‘Corporation’,” he said.
The land housing the Silver Jubilee Home for the Aged, along with the portion of the vacant land within its premises, belongs to the Penang and Province Wellesley Silver Jubilee Fund (“Corporation”), of which Chow serves as the chairman, as entrusted under the Corporation’s Act.
Justice Quay said that the defendant was simply encouraging his fellow trustees to ensure no conflict of interest exists, by engaging a legal firm to represent the Corporation in the project.
The proposed project was the construction of five blocks of workers’ hostel and an amenity block on the now unutilised portion of vacant land which also houses the Silver Jubilee Home for the Aged.
“He was advocating the practice of good governance by appointing the contractor through an open tender process, rather than by direct engagement.
“As the Chief Minister of Penang and the ex officio chairman of the Corporation, by virtue thereof, the defendant felt that he ought to inform the state executive council about the project and seek its consent to sign the draft agreement.
“That is certainly legitimate, even if it is not legally required. All the defendant desired is better accountability and transparency,” he said.
Justice Quay noted that the defendant clarified the Silver Jubilee Home for the Aged is a public organisation, not the plaintiff’s personal property, in response to a question about the necessity of a tender process.
“Therefore, whether it is necessary for an open tender or not, is to be decided by the Board of Trustees of the Corporation.
“About the remark that the Silver Jubilee Home for the Aged is being represented by a lawyer (PW1), the defendant explained that PW1’s actual role in the Corporation is as a trustee. The defendant expressed concern that if PW1 were to represent the Corporation as a lawyer, in matters related to the project, it could create a conflict of interest,” he said, commenting further about the appointment of three new trustees for the Corporation, in which the appointment serves as a transitional phase.
“I find the impugned statements carry meanings which are substantially true and are not defamatory against the plaintiff,” he said.
Highlighting the preparatory work on the project, Justice Quay said the crux of the first impugned statement is that the preparatory work on the project began in September 2021 before the defendant was briefed about it in April 2022.
“I consider this statement to be true. It is not half-truth as alleged by the plaintiff. It is supported by a chronology of events which accompanied the plaintiff’s resignation letter. That is a contemporaneous document which deserves to be given weight.
“It is evident from a WhatsApp conversation that the plaintiff was still seeking approval of the project from the defendant, as of July 28, 2022. The plaintiff even entertains the possibility that the project would be abandoned if it is not viable. This means that the defendant had yet to approve the project at that time, as his direction was being sought.
“To this, the defendant replied that the draft agreements were being reviewed by the legal people. When that is done, the Corporation can decide what to do next,” he read out his judgement.
Justice Quay also said it was also true facts that the Corporation was not represented by a legal firm, while the same legal firm represented the two contractors.
“They are explicitly stated in the draft agreements.
“The plaintiff asserts that the Corporation was represented by PW1, who is an advocate and solicitor. But the defendant’s meaning is that the Corporation was not represented by a legal firm in the same way that the contractors were.
“PW1 may have served as the legal adviser of the Corporation but his firm did not represent the Corporation in the project and the negotiation of the draft agreements. Thus, the defendant’s statement in this regard is factually true and not a half-truth as alleged by the plaintiff,” he said.
Justice Quay said that it is quite legitimate for the defendant, as the Chief Minister of Penang, and the ex officio chairman of the Corporation, to urge that the project adheres to the CAT (Competency, Accountability, Transparency) principles which have been the backbone of the Pakatan Harapan-led Penang state government, and to have a separate legal representation.
After delivering his judgement for about 30 minutes, Justice Quay was satisfied that the defendant had an honest belief in the truth of what he said in the impugned statements.
“His motive for communicating the statements was bona fide (undertaken in good faith). He was discharging his duty as the trustee and chairman in protecting the interest of the Corporation.
“Nothing in the statements indicates the plaintiff was the target of an improper motive. The defendant was not reckless in uttering the statements. He did not make them without just cause or excuse.
“He was not motivated by ill will. There was no intention to vent personal spite against the plaintiff. In short, there is absence of malice on the part of the defendant,” he said.
Justice Quay concluded that the plaintiff had not proven his claim for defamation against the defendant.
“On the balance of probabilities, the defendant has succeeded in proving his defences of justification, fair comment, and qualified privilege.
“I, therefore, dismissed the plaintiff’s claim,” he said.
The defendant had asked for RM100,000 in costs, while the plaintiff proposed RM20,000 in costs.
The court ordered the plaintiff to pay RM50,000 in costs to the defendant.
Tan was represented by counsel Datuk K. Kirubakaran and Kek Boon Wei, while Chow was represented by lawyer Cheah Eng Soon.
Later when approached by the media at the Penang Legislative Assembly building, Chow said he was grateful and respected the court’s decision.
“I will continue to perform my duties,” he said.
Story by Christopher Tan
Pix by Muhamad Amir Irsyad Omar