Michael Kong fails in attempt to have defamation suit against him struck out

The court complex in Kuching.

By Dorcas Ting

KUCHING, May 21: The High Court here today has dismissed the application made by DAP’s Michael Kong to strike out the defamation case filed against him by the President of the Sarawak Federation of Chinese Associations Dato Richard Wee based on the technical ground that the latter had omitted the Teste in the Writ.

Kong’s counsel Chong Chieng Jen and Sim Kiat Leng appeared today for the hearing of their application for the Writ filed by Dato Richard Wee to be set aside, describing the omission of the Teste as “embarrassing”.

During the hearing, Chong argued that the fact that Kong 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.

Chong further held that “when the non-compliance is so fundamental that it goes to the jurisdiction and authority of the Court to adjudicate the matter, the question of prejudice should not be an issue”.

To him, the omission of the Teste in a Writ of the High Court was not merely an irregularity that is curable by an amendment, but it rendered the whole proceedings a nullity as the authority upon which the Court can summons the party to appear before it was totally omitted and not stated in the Writ.

In response, Wee through his Counsel, Shankar Ram Asnani, Yu Ying Ying and Russell Lim argued that his 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 Ram submitted that the omission to incorporate a Teste into the body of a Writ was not fatal, but was in fact an irregularity of a very technical nature that did not render the Writ a nullity and is curable by amendment.

“Under the Rules of Court 2012, even the Teste omitted is a mere irregularity that does not affect the substance and will not invalidate or render the Writ void or a nullity.”

Mr. Shankar Ram 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.

High Court Judge Justice Dr Alwi Abdul Wahab today has allowed Wee’s application to amend the Writ to incorporate the Teste to allow the case to proceed on the basis that it is in the interest of justice to do so.

Alwi also dismissed Chong’s application to strike out Wee’s action with cost to be in cause after hearing the oral submissions by both parties here today.

The trial of this suit is fixed on June 21 to 25.

Kong had on July 21, 2020 posted on his Facebook social media a statement allegedly containing a defamatory element — “”Before Dato Richard Wee purports to speak on behalf of the Chinese community in support the GPS (Gabungan Parti Sarawak), he should declare his personal and business interest with the current GPS government particularly Parti Pesaka Bumiputra Bersatu (PBB)”.

Wee through his Counsel Shankar Ram has taken a libel action against Kong for general damages, aggravated damages, exemplary damages for libel and malicious falsehood and an injunction to restrain the defendant from publishing, causing to be published, circulating and distributing the said post.

Shankar Ram has also applied for an order directing the Defendant Kong 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, with a circulation in Sarawak, of the Plaintiff’s choice at the Defendant’s cost and once on the Defendant’s Facebook Account with costs on a solicitor-client basis or costs.

Wee had earlier told a local daily that it is likely that more urban and Chinese voters in Sarawak would support GPS in the upcoming Sarawak election due to the commitment shown by the ruling coalition to fight for Sarawak’s rights.

In response, Kong released the said defamatory statement on his Facebook that Wee should declare his personal and business interests with the current GPS Government, particularly PBB.  — DayakDaily