KUCHING: The High Court here today (July 28) dismissed the application by the Democratic Action People (DAP) Sarawak chairman Chong Chieng Jen to strike out the defamation case filed against him by Sarawak United People’s Party (SUPP) president Datuk Seri Dr Sim Kui Hian.
Justice Dr Alwi Abdul Wahab made the ruling based on the technical ground that the latter had omitted the teste in the writ.
Chong’s counsel, Michael Kong, who appeared for the hearing of the application of the writ filed by Dr Sim to be set aside, described the omission of the teste as “embarrassing”.
He, however, admitted that the defendant Chong had not suffered any prejudice from the omission of the teste.
Kong argued during the hearing that the fact that Chong was compelled to attend court on a writ which was so fundamentally non-compliant with the Rules of Courts 2021, so to constitute an embarrassing writ that in itself was a prejudice that could not be compensated with costs.
He further argued that when the non-compliance was so fundamental that “it foes to the jurisdiction and authority of the court to adjudicate the matter and the question of prejudice should not be an issue.”
Dr Sim’s counsels, Shankar Ram Asnani, Russel Lim and Yu Ying Ying, meanwhile, 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 vs Michael Kong Feng Nian in Suit No.
KCH-22NCvC-25/8-2020 (HC 1) where the same High Court judge Justice Dr Alwi, who presided at today’s matter, had previously decided on the same issue and had dismissed the application made by Kong to strike out Wee’s action for the same reason on the omission of the teste.
He quoted various English and Malaysian authorities, from as early as 1737 where the High Court held that a wrong teste would 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.
He further argued that even the omission of the teste omitted was merely a irregularity that did not affect the substance and would not invalidate or rendered the writ void or a nullity”.
After hearing the oral submissions from both parties, Dr Alwi 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 had suffered no prejudice and that it was in the interest of justice to do so.
The High Court Judge also dismissed Chong’s application to strike out Dr Sim’s action with cost to be in the cause.
On April 15 and 18, Chong had posted statements, which had allegedly contained defamatory elements, on his Facebook page.
Dr Sim, through his counsels, took a libel action against Chong for general damages, aggravated damages, exemplary damages for libel and malicious falsehood as well as an injunction to remove the defamatory Facebook posts and restrain the defendant Chong from publishing, causing to be published, circulating and distributing the said posts.
He had also applied for an order directing Chong to publish an apology in a manner, approved by the plaintiff or by the court.
The apology is to be published in both English and Chinese language newspapers of the plaintiff’s choice.