KUCHING, July 28: The High Court here today has dismissed DAP Sarawak chairman Chong Chieng Jen’s bid to strike out a defamation case filed against him by SUPP president Datuk Seri Dr Sim Kui Hian, based on the technical grounds that the latter had omitted the Teste of a Writ.
Chong’s counsel Michael Kong, who appeared today for the hearing of their application for the Writ filed by Dr Sim to be set aside, described the omission of the Teste as “embarrassing”, although Kong himself admitted later that the defendant Chong had not suffered any prejudice from this omission of the Teste.
During the hearing, Kong argued that the fact that Chong was compelled to attend Court on a Writ which was so fundamentally non-compliant with the Rules of Courts 2012, so as to constitute an embarrassing Writ, that in itself was a prejudice that cannot be compensated with costs.
Kong further argued that “when the non-compliance is so fundamental that it foes to the jurisdiction and authority of the Court to adjudicate the matter, the question of prejudice should not be an issue”.
In response, Dr Sim through his counsels Shankar Ram Asnani, Russell Lim and Yu Ying Ying argued that their client had filed a formal application to amend the Writ to incorporate the Teste and to oppose Kong’s application to strike out the Writ.
Shankar cited the case of Richard Wee Liang Huat v Michael Kong Feng Nian in Suit No. KCH-22NCvC-25/8-2020 (HC 1) where the same High Court Judge Justice Alwi Abdul Wahab who presided at today’s matter had previously decided on this same issue and had dismissed the application made by Kong to strike out Wee’s action for the same reason of the omission of the Teste.
Shankar quoted various English and Malaysian authorities, from as early as 1737 where the High Court held that a wrong Teste will not make a Writ void, but irregular only and that the deviation or omission from the usual Form of Writ (Form 2) under the ROC 2012, by certain parts and even the Teste omitted are merely irregularities that does not affect the substance and will not invalidate or render the Writ void or a nullity.
After hearing the oral submissions from both parties, the High Court judge has allowed Dr Sim’s application to amend his Writ to incorporate the Teste and to allow the case to proceed on the basis that Chong has suffered no prejudice and that it is in the interest of justice to do so.
The judge has also dismissed Chong’s application to strike out Dr Sim’s action with cost to be in the cause.
On the brief facts of the case, Chong had on April 15 and 18 last year posted on his Facebook social media statements allegedly containing defamatory elements.
Dr Sim has then taken a libel action against Chong for general damages, aggravated damages, exemplary damages for libel and malicious falsehood and an injunction to remove the defamatory Facebook posts and restrain Chong from publishing, causing to be published, circulating and distributing the said posts.
Shankar has also applied for an order directing Chong to publish an apology in a manner approved by the plaintiff or by the Court and for the same to be published once in one English language newspaper and one Chinese language newspaper circulating in Sarawak, of the plaintiff Dr Sim’s choice at the defendant’s cost and once on the defendant’s Facebook account with costs on a solicitor-client basis. — DayakDaily
