National Union of Bank Employees V Noorzeela

National Union of Bank Employees v Noorzeela bt Lamin and
[2014] 7 MLJ another suit (Amelia Tee Abdullah J) 31
A National Union of Bank Employees v Noorzeela bt Lamin and

another suit
HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NOS S-23-NCVC-14

B
OF 2011 AND S-23-NCVC-20 OF 2011
AMELIA TEE ABDULLAH J
3 MAY 2013
C Tort — Defamation — Libel — Publication of defamatory statements in leaflet

and on first defendant’s Facebook page — Whether there was publication of leaflets
by defendants — Whether statements in leaflet false and defamatory — Whether
statements in leaflet circulated in Maybank Annual Games and dinner had
tendency to lower esteem of NUBE and subject it and its EXCO to hatred and
D contempt — Whether leaflet disparaged NUBE’s reputation as trade union —
Whether plaintiff proved case against defendants on balance of probabilities —
Defences — Justification — Whether defendants able to provide any explanation to
prove that there was justification for their statements — Whether defence of fair
comment and qualified privilege available to defendants
E
The National Union of Bank Employees (‘the NUBE’), a registered trade
union that represents clerical and non-clerical workers in the banking industry
in Peninsular Malaysia, commenced two separate suits against Noorzeela bt
Lamin (‘the first defendant’) and Zayuddin bin Mohamed Yusop (‘the second
F defendant’) because of the defendants’ defamatory publications against the
NUBE. During case management it was decided that both suits would be
heard together. According to the NUBE, the first and second defendants were
employees of Maybank Bhd and members of the plaintiff until the first
defendant was expelled from the plaintiff sometime in November or December
G 2010. The NUBE alleged that the defendants had published or caused to be
published a leaflet, comprising five pages, which contained comments that
were defamatory of the NUBE and its National Executive Council members
(‘EXCO’). It was the NUBE’s contention that the purpose of the leaflet was to
run down the plaintiff and to promote an in-house union referred to as the
H Maybank Non-executive Union (‘MAYNEU’). The NUBE’s General Secretary
(‘GS’) testified that the defendants, whose names and contact information
appeared on the leaflet, were responsible for distributing the leaflets at the
Maybank Annual Games held in Bangi from 3–5 December 2010. It was the
NUBE’s case that the leaflet, inter alia, falsely accused the NUBE for being
I responsible for NUBE members losing 16% in salary adjustments; of the
NUBE using its members’ funds for personal gains; the GS and the NUBE’s
EXCO of being dishonest and corrupt and of misappropriating monies that
belonged to the NUBE’s members. The NUBE thus submitted that the leaflet
embarrassed the NUBE and its EXCO and disparaged its reputation as a trade
32 Malayan Law Journal [2014] 7 MLJ
union in that it led anyone reading the leaflet to think that the NUBE’s EXCO A
were all dishonest, irresponsible and mismanaging the NUBE’s funds and
operations for their own personal gain. Against the first defendant, there was a
further allegation of publishing or causing to be published defamatory
comments against the plaintiff and its EXCO in her Facebook profile page. By
way of this action the NUBE claimed for, inter alia, general and aggravated B
damages from the defendants. In her defence the first defendant sought to
explain that the decision to form MAYNEU was not to put down the NUBE
but to enable the clerical and non-clerical workers in Maybank Bhd to
negotiate directly with Maybank. While giving evidence the first defendant
denied defaming the NUBE as she was neither the author nor the distributor of C
the leaflet, but she nevertheless felt that there was basis in the statements
contained in the leaflet. In addition, she also denied publishing any comments
in Facebook as alleged by NUBE in its statement of claim and instead claimed
that someone could have hacked into her account. The second defendant
D
similarly claimed that he did not make or publish the leaflet but as the contents
of the leaflet were true, the issue of defamation would not arise.
Held, allowing the plaintiff ’s claim with costs of RM100,000:

(1) After the hearing of all the witnesses had been completed, the defendants E
had applied for leave to amend their respective defences. However, the
court had refused leave to amend and the defendants’ appeals on this
issue were dismissed. In the light of the stand taken by the court with
regard to this issue, the defences of the two defendants had to be taken as
F
they stood and the parties were bound by their pleadings. Although both
defendants had denied publishing the leaflets, they had, in their
respective defences, actually admitted distributing the leaflets to third
parties, albeit limited to the employees of Maybank. In the light of the
admissions of both defendants in relation to the distribution of the G
leaflets, in their respective defences, coupled with the evidence of the
NUBE’s witness as to the distribution of the leaflets at the Maybank
Annual Games, there was publication of the leaflets by the defendants
(see paras 118–119 & 129).
(2) The statement in the leaflet which alleged that a union that was tasked H
with looking out for the interests of its members had caused its members
to suffer loss of pay is a very serious allegation. In the present case, the first
defendant was unable to prove that the NUBE had caused its members to
suffer a 16% loss of pay save for saying that the source of their
information was from the NUBE website. In the circumstances the I
defendants had not succeeded in proving on a balance of probabilities,
the defence of justification. Thus the statement in the leaflet about the
NUBE causing its members to suffer a 16% loss of pay was both false and
defamatory (see para 134).
A (3) As for the other defamatory remarks, the NUBE was able to provide a
reasonable explanation for the purchase of a new building, the renovation
of the Port Dickson Complex and for an employee being given an
opportunity to attend the New Delhi Conference. However, the
defendants were unable to provide any explanation to prove that there
B was justification for their statements that the NUBE EXCO was
spending millions to buy a new building, renovate the complex in Port
Dickson and for overseas travelling. The NUBE had thus succeeded in
proving that these comments were directed at the plaintiff and its EXCO
and that they were defamatory (see paras 138–139).
C (4) In respect of the allegation in the leaflet as to monetary misconduct in
respect of monies in the NUBE’s benevolent fund, which should be
utilised for the benefit of its workers, the defendants were unable to
furnish any proof of any such misuse. As such, these statements were
clearly defamatory. The defence of fair comment and qualified privilege
D were also clearly not available to the defendants (see para 145).
(5) In her statement of defence, the first defendant had clearly admitted to
placing the impugned comments in her Facebook page and as such the
fact that she had placed those comments was not in issue. Apart from the
E first defendant’s admission of publishing the comments on her Facebook
page, the very comments pointed to the first defendant as being the
author and publisher of those comments. These comments, which clearly
referred to the plaintiff and its EXCO as being unknowledgeable and
imminently about to cause the downfall and demise of the NUBE, were
F capable of defamation as they refer to the NUBE and they were published
(see paras 123–124).
(6) As regards damages, notice was taken of the fact that the leaflet would
have reached a wide readership, namely the attendees at the Maybank
Annual Games and at the dinner, who would predominantly be people in
G the banking industry and hence people who the NUBE represented.
Such damaging statements circulated amongst this group of people
would have a tendency to lower the esteem of the NUBE and subject it
and its EXCO to hatred and contempt. The defamatory comments
published in the first defendant’s Facebook webpage were equally serious.
H Further, the defendants had not made any attempts to apologise to
NUBE. In the circumstances, the first defendant and second defendants
were ordered to pay damages in the sum of RM150,000 and RM100,000
respectively to the NUBE. They were also restrained from publishing
similar libels in future and ordered to publish a full and unqualified
I retraction and apology in a major daily (see paras 148–149 & 151–152).
[Bahasa Malaysia summary

Kesatuan Pekerja Bank Malaysia (‘NUBE’), sebuah kesatuan pekerja berdaftar
yang mewakili pekerja-pekerja perkeranian dan bukan perkeranian dalam
industri perbankan di Semenanjung Malaysia, telah memulakan dua guaman A

berasingan terhadap Noorzeela bt Lamin (‘defendan pertama’) dan Zayuddin
bin Mohamed Yusop (‘defendan kedua’) kerana penerbitan berunsur fitnah
oleh defendan-defendan terhadap NUBE. Semasa pengurusan kes ia telah
diputuskan bahawa kedua-dua guaman akan didengar bersama. Menurut
NUBE, defendan-defendan pertama dan kedua adalah pekerja-pekerja B
Maybank Bhd dan ahli-ahli plaintif sehingga defendan pertama dibuang kerja
dari plaintif sekitar bulan November atau Disember 2010. NUBE mendakwa
bahawa defendan-defendan telah menerbit atau menyebabkan penerbitan
risalah, yang mempunyai lima muka surat, yang mengandungi komen-komen
berunsur fitnah terhadap NUBE dan ahli-ahli Majlis Eksekutif Kebangsaannya C
(‘EXCO’). NUBE berhujah bahawa tujuan risalah tersebut adalah untuk
menjejaskan plaintif dan menggalakkan kesatuan dalaman yang dirujuk
sebagai Kesatuan Bukan Eksekutif Maybank (‘MAYNEU’). Setiausaha Agung
NUBE (‘SA’) telah memberi keterangan bahawa defendan-defendan, yang
D
mana nama-nama dan maklumat untuk dihubungi tertera dalam risalah
tersebut, adalah bertanggungjawab untuk mengedar risalah-risalah tersebut di
Sukan Tahunan Maybank yang diadakan di Bangi dari 3-5 Disember 2010.
Adalah kes NUBE bahawa risalah tersebut, antara lain, menuduh secara palsu
yang NUBE bertanggungjawab untuk ahli-ahli NUBE tidak mendapat 16% E
daripada penyelarasan gaji; berhubung NUBE menggunakan dana ahli-ahli
untuk kepentingan peribadi; SA dan EXCO NUBE tidak jujur dan korup dan
menyeleweng wang milik ahli-ahli EXCO. NUBE dengan itu berhujah
bahawa risalah tersebut memalukan NUBE dan EXCOnya dan menjejaskan
reputasinya sebagai kesatuan pekerja di mana ia memberi andaian kepada F
sesiapa yang membaca risalah tersebut bahawa EXCO NUBE kesemuanya
tidak jujur, tidak bertanggungjawab dan menyalah urus dana dan operasi
NUBE untuk kepentingan peribadi masing-masing. Terhadap defendan
pertama, terdapat dakwaan selanjutnya menerbit atau menyebabkan
penerbitan komen-komen berunsur fitnah terhadap plaintif dan EXCOnya G
dalam halaman profil Facebooknya. Melalui tindakan ini NUBE menuntut
untuk, antara lain, ganti rugi am dan tambahan daripada defendan-defendan.
Dalam pembelaannya defendan pertama memohon untuk menjelaskan
bahawa keputusan untuk membentuk MAYNEU bukan untuk menjejaskan
NUBE tetapi untuk membolehkan pekerja-pekerja perkeranian dan bukan H
perkeranian di Maybank Bhd untuk berunding secara terus dengan Maybank.
Semasa memberikan keterangan defendan pertama menafikan telah
memfitnah NUBE kerana dia bukan penulis atau pengedar risalah tersebut,
namun begitu dia berasa terdapat asas yang terkandung dalam
kenyataan-kenyataan risalah tersebut. Tambahan pula, dia juga menafikan I
telah menerbitkan apa-apa komen dalam Facebook sebagaimana didakwa oleh
NUBE dalam penyataan tuntutannya dan sebaliknya mendakwa bahawa
sesiapapun boleh menggodam ke dalam akaunnya. Defendan kedua juga telah
mendakwa bahawa dia tidak membuat atau menerbitkan risalah tersebut tetapi
A oleh kerana kandungan risalah tersebut adalah benar, isu fitnah tidak mungkin
timbul.
Diputuskan, membenarkan tuntutan plaintif dengan kos RM100,000:

B (1) Selepas selesai perbicaraan semua saksi-saksi, defendan-defendan telah
memohon kebenaran untuk meminda pembelaan masing-masing.
Walau bagaimanapun, mahkamah enggan memberi kebenaran untuk
meminda dan rayuan-rayuan defendan-defendan berhubung isu ini telah
ditolak. Berdasarkan pendirian yang dibuat oleh mahkamah berhubung
C isu ini, pembelaan-pembelaan kedua-dua defendan hendaklah diterima
sepertimana diputuskan dan pihak-pihak terikat dengan pliding-pliding
mereka. Walaupun kedua-dua defendan menafikan telah menerbitkan
risalah-risalah tersebut, mereka telah, dalam pembelaan masing-masing,
D sebenarnya mengakui telah mengedarkan risalah-risalah tersebut kepada
pihak ketiga, walaupun terhad kepada pekerja-pekerja Maybank.
Berdasarkan pengakuan kedua-dua defendan berkaitan pengedaran
risalah-risalah tersebut, dalam pembelaan masing-masing, bersama
keterangan saksi NUBE berhubung pengedaran risalah-risalah tersebut
E kepada Maybank Annual Games, terdapat penerbitan risalah-risalah
tersebut oleh defendan-defendan (lihat perenggan 118–119 & 129).
(2) Kenyataan dalam risalah yang mengatakan bahawa sebuah kesatuan yang
dipertanggungjawabkan untuk menjaga kepentingan ahli-ahlinya yang
F telah menyebabkan ahli-ahlinya mengalami kehilangan gaji adalah satu
dakwaan yang amat serius. Dalam kes ini, defendan pertama tidak dapat
membuktikan bahawa NUBE telah menyebabkan ahli-ahlinya
mengalami 16% kehilangan gaji kecuali dengan mengatakan bahawa
sumber maklumat mereka adalah daripada laman web NUBE. Dalam
G keadaan berikut defendan-defendan tidak berjaya membuktikan atas
imbangan kebarangkalian, pembelaan justifikasi. Oleh itu kenyataan
dalam risalah tersebut berhubung NUBE yang menyebabkan
ahli-ahlinya mengalami 16% kehilangan gaji adalah palsu dan berunsur
fitnah (lihat perenggan 134).
H
(3) Berhubung kenyataan lain yang berunsur fitnah, NUBE dapat
memberikan penjelasan munasabah mengenai pembelian bangunan
baru, pengubahsuaian Kompleks Port Dickson dan untuk seorang
pekerja diberikan peluang untuk menghadiri Persidangan New Delhi.
I Walau bagaimanapun, defendan-defendan tidak dapat memberikan
apa-apa penjelasan untuk membuktikan terdapat justifikasi untuk
kenyataan-kenyataan mereka bahawa EXCO NUBE telah
membelanjakan berjuta-juta ringgit untuk membeli bangunan baru,
mengubahsuai kompleks di Port Dickson dan untuk perjalanan keluar
negara. NUBE dengan itu berjaya membuktikan bahawa komen-komen A

tersebut ditujukan kepada plaintif dan EXCOnya dan adalah berunsur
fitnah (lihat perenggan 138–139).
(4) Berdasarkan dakwaan dalam risalah tersebut berhubung salah laku
kewangan berkaitan wang dalam dana kebajikan NUBE, yang patut B
digunakan untuk faedah pekerja-pekerjanya, defendan-defendan tidak
dapat memberikan apa-apa bukti tentang apa-apa penyalahgunaan. Oleh
itu, kenyataan-kenyataan tersebut jelas berunsur fitnah. Pembelaan
komen adil dan perlindungan bersyarat juga jelas tidak boleh digunakan
oleh defendan-defendan (lihat perenggan 145). C
(5) Dalam kenyataan pembelaannya, defendan pertama jelas mengakui telah
meletakkan komen-komen yang dipersoalkan dalam halaman
Facebooknya dan oleh itu fakta bahawa dia telah meletakkan
komen-komen tersebut tidak menjadi isu. Selain daripada pengakuan D
menerbitkan komen-komen di halaman Facebooknya, komen-komen
tersebut menunjukkan yang defendan pertama adalah penulis dan
penerbit komen-komen tersebut. Komen-komen tersebut, yang jelas
merujuk kepada plaintif dan EXCOnya sebagai tidak berpengetahuan
dan hampir menyebabkan kejatuhan dan kemusnahan NUBE, adalah E
berkemampuan untuk memfitnah kerana telah merujuk kepada NUBE
dan telah diterbitkan (lihat perenggan 123–124).
(6) Berhubung ganti rugi, notis telah diambil tentang hakikat bahawa risalah
tersebut telah mencapai pembaca yang luas, iaitu peserta-peserta di F
Sukan Tahunan Maybank dan di makan malam tersebut, yang
kebanyakannya merupakan orang-orang dalam industri perbankan dan
diwakili oleh NUBE. Kenyataan-kenyataan menjejaskan sebegini yang
diedarkan di kalangan kumpulan orang ini akan mempunyai
kecenderungan untuk merendahkan maruah NUBE dan menjadikan G
NUBE dan EXCOnya dibenci dan dihina. Komen-komen berunsur
fitnah yang diterbitkan dalam laman web Facebook defendan pertama
juga serius. Malah, defendan-defendan tidak membuat apa-apa
percubaan untuk memohon maaf kepada NUBE. Dalam keadaan
berikut, defendan pertama dan kedua telah diperintahkan untuk H
membayar ganti rugi berjumlah RM150,000 dan RM100,000
masing-masing kepada NUBE. Mereka juga dihalang daripada
menerbitkan fitnah bertulis atau libel yang sama di masa hadapan dan
diperintahkan untuk menerbitkan penarikan balik penuh dan tidak
bersyarat serta memohon maaf dalam akhbar harian utama (lihat I
perenggan 148–149 & 151–152).]
Notes
For cases on libel, see 12 Mallal’s Digest (4th Ed, 2011 Reissue) paras 484–645.
A Cases referred to
Allied Bank (Malaysia) Bhd v Yau Jiok Hua [1998] 2 CLJ 33, HC (refd)
Anjalai Ammal & Anor v Abdul Kareem [1969] 1 MLJ 22, FC (refd)
Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315, HC (refd)
B Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371, CA
(refd)
NUBE & Ors v The New Straits Times Press & Ors in Sivil Suit No S 23–34 of
2007 (refd)
Nagandran a/l Kalianna Gaunder(t/a Raju Restoran) v Melinda Alison Monteiro
C & Ors [2011] 4 MLJ 224; [2011] 1 LNS 466, HC (refd)
Thian Oon Kin v Rekarya Consultant Group & Ors [2010] 8 MLJ 726, HC
(refd)
Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1
MLJ 393, HC (refd)
D
Legislation referred to
Evidence Act 1950 s 114(g)
Trades Union Act 1959 s 56
E Alex De Silva (Vinesh M Varghese with him) (Bodipalar Ponnudurai De Silva) for
the plaintiffs.
Cantius Leo Camoens(C Leo Camoens) for the defendants.
Amelia Tee Abdullah J:

F
[1] The defendants in S-23NCVC-14 of 2011 and S-23NCVC-20 of 2011

are Noorzeela bt Lamin (‘the first defendant’) and Zayuddin bin Mohamed
Yusop (‘the second defendant’) respectively. The plaintiff in both suits is the
G National Union of Bank Employees. The plaintiff ’s claim against the
defendants is for, inter alia, general and aggravated damages arising out of the
publication by the defendants of alleged defamatory comments against the
plaintiff and the plaintiff ’s National Executive Council members on Facebook
and in a leaflet entitled ‘MAYNEU Maybank Non Executive Union’.
H
[2] The writ of summons and statement of claim in respect of the first
defendant were filed on 2 March 2011 whilst that in respect of the second
defendant was filed on 3 March 2011. The first defendant filed her
memorandum of appearance on 27 May 2011 and her defence on 31 May
I 2011. The second defendant’s memorandum of appearance was also filed on
27 May 2011 but his defence was filed on 30 May 2011. During the case
management on 23 June 2011, the court allowed the plaintiff ’s application for
23NCVC-20 of 2011 to be heard together with 23NCVC-14 of 2011 and
fixed 10–11 October 2011 for the hearing of both suits.
[3] The defendants were initially represented by the Law Firm of M Eswary. A
However on 12 September 2011, the court was informed by Ms M Eswary that
she had been discharged by the defendants on 5 September 2011. On
19 September 2011, Messrs C Leo Camoens filed a notice of change of
solicitors dated 19 February 2011 although an amended notice of change of
solicitors dated 28 September 2011 was only filed on 25 October 2011. B
THE PLAINTIFF’S CASE
[4] Hearing of the two suits commenced on 12 October 2011 in the presence
of Mr Alex De Silva with Mr Vinesh M Varghese for the plaintiff and Mr C
Cantius Leo Camoens for the defendants. The plaintiff ’s first witness was
Jeevan a/l M Vijayan (PW1), a clerk with Maybank Plaza MWE. PW1 testified
as to his receipt of the leaflet at pp 1–5 of Part B in the common bundle (‘CB’)
on the first day of the Maybank Annual Games held at Maybank’s premises in
Bangi from 3–5 December 2010. The leaflet that he received consisted of a D
total of five pages stapled together.
[5] According to PW1, there were a few people distributing flyers at the
opening ceremony of the games on 3 December 2010. These leaflets were
E
distributed to the staff of Maybank and also to members of NUBE who were at
the annual games. On his return to Penang, he reported the incident to the hon
secretary of NUBE Penang as he felt that the distribution of the leaflets was not
right but was damaging to NUBE. He identified his report (P1) appearing at
p 94 of Part B in CB.
F
[6] PW1 identified the first defendant, Noorzeela Lamin, as the ‘fair Malay
lady’ described in para 3 of his report as having approached the members table
by table to talk about MAYNEU, the in-house union, and to garner support.
Although the first defendant did not approach PW1’s table, she had G
approached the next table and had walked around the table so that PW1 was
able to see her from many angles.
[7] The plaintiff ’s key witness is Sandagran Solomon s/o Joseph Pitchay
(PW2). He describes himself as the general secretary of the plaintiff since 19 H
July 2001. The plaintiff is a registered trade union registered on 30 June 1960
pursuant to the Trade Unions Act 1959 and represents the clerical and
non-clerical workers in the banking industry in Peninsular Malaysia. It has
approximately 29,000 members.
I
[8] According to PW2, the first and second defendants were employees of
Maybank Bhd and members of the plaintiff since 30 May 1998 and 1
December 1991 respectively. They are also inter relations committee (‘IRC’)
members of the plaintiff in Menara Maybank and Bangunan Perkeso
A respectively. IRCs are appointed at each of the bank’s branches to consider all
matters submitted to them by their branch, and to protect the interests of and
to extend trade union organisation amongst the staff. The first defendant was
expelled from the plaintiff sometime in November or December 2010.
B
[9] PW2 explained that the plaintiff had commenced this suit against the
defendants because of ‘the defendants’ defamatory publications against the
plaintiff. He referred the court to the leaflet entitled ‘MAYNEU Maybank Non
Executive Union’ (‘the offending leaflet’) allegedly published by the defendants
C
which were defamatory to the plaintiff and the National Executive Council
members of the plaintiff.
[10] According to PW2, it was the defendants who had published or caused
to be published the offending leaflet because the defendants’ names and
D telephone numbers appear in the middle column of p 1, under the words ‘Sila
hubungi kami:’. The purpose of the offending leaflet was to run down the
plaintiff and to promote MAYNEU. The offending leaflets were distributed to
other employees of Maybank, including members of the plaintiff. The plaintiff
has approximately 5000 members in Maybank. PW2 explained that this figure
E of 5000 is not mere guesswork but is based on reports from the branch
committees. He admitted that he did not witness the actual distribution of the
offending leaflets between 3 and 5 December 2010.
[11] According to PW1, the offending leaflets were distributed between

F
3 and 5 December 2010 at the Maybank Annual Games which were held at the
Maybank premises in Bangi. The leaflets were also left at the dinner tables
during the dinner held on the last day of the annual games. In total, the
attendance at the games and the dinner would be between 4,000 and 5,000
G members.
The first defamatory statement
[12] PW2 testified in detail as to the defamatory statements in the offending

H leaflet. The first defamatory statement appears at CB, Part B, p 1 — right hand
column, under the heading ‘80 BULAN BONUS’ and reads as follows:
Bonus berdasarkan prestasi kerja telah ditawarkan kepada NUBE semasa

RUNDINGAN PERJANJIAN BERSAMA 2006-2009 … TETAPI MEREKA
I MENOLAK!!! Mereka kata pihak Bank mahu merompak bonus mereka!!! Sekarang
mereka mahu menuntut bonus prestasi kerja pula. Disebabkan mereka telah
menolak Bonus Prestasi Kerja, kita telah kehilangan 16% kenaikan gaji semenjak
2006 dan juga bonus. Ini adalah merupakan kerugian kepada kita semua
disebabkan oleh NUBE.
[13] PW2 testified that the above-stated comments are defamatory because A
they are untrue. NUBE members did not lose 16% in salary adjustments as a
result of NUBE. He explained that a collective agreement is negotiated every
three years between the plaintiff and the Malayan Commercial Banks
Association (‘MCBA’) which is the negotiating body on behalf of all
commercial banks for the clerical and non-clerical categories in the banking B
industry. When a proposal is made by MCBA, the plaintiff, through its general
secretary, will announce the proposal to its members. The principal office
bearers of the plaintiff would then go on a road show throughout Peninsular
Malaysia to explain MCBA’s proposal and to obtain feedback as to whether the
members accepted the proposal. PW2 testified that at the road shows, the C
plaintiff ’s members rejected MCBA’s proposal for a 14% salary adjustment
AND to dilute the two months’ contractual bonus into salary and pay
performance bonus at the discretion of the bank.
[14] According to PW2, at the conclusion of negotiations, the plaintiff had D

succeeded in negotiating a 17% salary adjustment with the two months’ bonus
still intact. This was accepted by the membership and the collective agreement
was concluded on 21 June 2008. As such, PW2 states that it was false for the
defendants to say that they had lost out on salary adjustments and bonus as a
result of the negligence or incompetence of the plaintiff and that the E
defamatory words were deliberate said to put the plaintiffs in bad light.
[15] During cross-examination, PW2 was referred to a circular issued by him

(CB, Part B p 13) entitled ‘Maybank berhutang 80 bulan bonus kepada setiap
F
ahli NUBE’. He admitted that he issued the circular on behalf of the plaintiff
to all NUBE members in Maybank on 18 November 2010. However, he
claimed that the statement at the right hand column of p 1 of the offending
leaflet did not address the same issues as in his circular. He maintained that
NUBE had not claimed 80 months bonus from BCB although he was unsure
G
if NUBE had claimed bonus of ten years from any other bank based on the
same collective agreement as in the Maybank matter. PW2 was also questioned
about his computation of 80 months. His explanation is that based on eight
months bonus per year, there should be (8x10=) 80 months bonus for ten years.
The collective agreement between MCBA and NUBE was for the period from
H
1 January 2009–31 December 2011. Article 20(1) provides for a contractual
annual bonus of two months. Under cl (6), the bank may also make a payment
in excess of the two months. Thus, the total contractual bonus for the three
years covered by the collective agreement is six months.
The second defamatory statement I
[16] The second defamatory statement which appears at CB, Part B, p 2,

left-hand column, under the heading ‘EDISI SATU’ reads as follows:
A Penubuhan kesatuan dalaman ini adalah atas usaha sekumpulan Maybankers yang
mahukan sebuah kesatuan yang lebih elektif dan fokus dalam menyelesaikan
permasalahan ahli-ahlinya berbanding ‘Kesatuan’ yang sibuk dengan percakaran
dalaman berterusan merebut kuasa dan jawatan.
Dua dekad yang lepas kita kerap meyaksikan kepimpinan Tertinggi NUBE
B mempergunakan ahli-ahli dan Tabung Kesatuan sesuka hati untuk kepentingan
peribadi. Tabung Kesatuan adalah dana hasil sumbangan gaji ahli-ahli, tetapi
kepimpinan tertinggi NUBE telah secara cuai dan somborono menyalahgunakan
Tabung tersebut. Masih ingatkan kita, pada akhir 90-an, kita dikejutkan dengan
berita NUBE kerugian jutaan ringgit dalam pasaran saham? Selepas itu, NUBE
C memberi kita kejutan kedua tidak lama selepas itu. Projek Ecopark bernilai jutaan
ringgit yang diusahakan oleh NUBE menemui kegagalan. Seramai 6,000 - 7,000
ahli-ahli kerugian sebanyak antara RM 1,500 - RM 2,000 seorang. Tujuan kita
mengimbas kembali insiden ini kerana kita tidak mahu sejarah hitam berulang
kembali. Kita perlu berhati-hati kerana kepimpinan tertinggi NUBE sekarang,
D Presiden, Setiausaha Agung dan Bendahari Agung sekarang adalah sebahagian
EXCO NUBE terdahulu yang meluluskan projek-projek jutaan ringgit yang gagal
itu. Sekarang ini, mereka adalah penandatangan Utama setiap transaksi NUBE.
Setiausaha Agung NUBE sekarang ini, dalam kempen pilihanrayanya, berjanji
sekiranya dia dilantik, dia dan barisan exconya akan menyelesaikan isu Ecopark
E tersebut. Malangnya, apabila ahli-ahli telah memberi ‘mandate’ kepadanya dan
kumpulannya memimpin NUBE, dia telah dengan sesuka hati menkhianati
kepercayaan ahli-ahli. Apabila ahli-ahli bertanya tentang perkembangan isu
Ecopark, dia sentiasa meletakkan kesalahan kepada kepimpinan sebelumnya dan
mengatakan NUBE tiada dana untuk membayar gantirugi ahli atau meneruskan
F projek Ecopark tersebut. Tetapi yang anehnya, dia dan exco NUBE sesuka hati
membelanjakan jutaan wang ringgit ahli-ahli untuk membeli Bangunan baru di
Brickfields, membaikpulih Kompleks NUBE di Port Dickson, perbelanjaan
pelancongan ke luar Negara, Majlis-majlis makan malam dan perjumpaan mewah.
Exco NUBE sekarang tiada langsung rasa perihatin untuk menebus kerugian
NUBE malahan terus menerus memperbelanjakan jutaan ringgit sesukahati
G
kewangan NUBE dari yuran hasil titik peluh kerja keras ahli-ahli.
… Tujuan Utama cerita ini dibangkitkan adalah untuk menunjukkan betapa
kepimpinan NUBE yang ada sekarang ini Tidak Amanah, Tidak
Bertanggungjawab, Mementingkan Diri Sendiri, Bermotif Politik, Tiada ketelusam
H dan Tidak Demokratik. … Edisi seterusnya akan tampil membawa pelbagai lagi
penyelewengan yang telah dibuat oleh kepimpinan NUBE sekarang.
[17] PW1 testified that the second defamatory statement is defamatory

because it is untrue. It accuses the plaintiff ’s leadership of using the members
I and the funds of the plaintiff as it pleases for personal gains. It falsely accuses
PW2 of betraying the trust of the plaintiff ’s members. It also accuses PW2 and
the plaintiff ’s Exco of arbitrarily spending millions of ringgit belonging to the
plaintiff ’s members without due process or consideration of the interests of the
plaintiff ’s members.
[18] During cross-examination, PW2 admitted that at the election time, he A

did say on behalf of the Exco that the leadership would resolve the Ecopark
problem. He admitted that the problem was not resolved. He explained that
they first took over, there was a suit of more than RM10m against the plaintiff.
They had negotiated with the main contractor and succeeded in bringing down
the figure to about RM3m. Since then they had been paying and the balance is B
now about RM1.9m. As for the members, they had been issued with privilege
cards where they would be able to enjoy facilities in 38 outlets.
[19] PW2 was referred to r 20(1)(a)–(l) of the NUBE’s Constitution & Rules C
and he agreed that these provisions deal with the purposes for which the funds
of the plaintiff can be expended on. He had to concede that he did not see any
provision in the Rules for the plaintiff to apply the funds for the purchase of
land such as the Ecopark project.
D
[20] During cross-examination, PW2 was referred to his police report (CB,
Part B p 96) in relation to NUBE’s losses in BBMB Securities amounting to
RM1,264,684.47. Whilst admitting that all expenditure above RM1,000
would require the approval of the Exco, he admitted that the Exco did not
approve each and every share purchase. Although the Exco had given its E
approval for legitimate purchases of shares, it did not give its approval for
contra trading. His police report was lodged against Johar Sulaiman, K
Sanmugam, G Gopal Krishnan and Mohd Noor Basir. Following his report, K
Sanmugam was charged together with P Ramani, the plaintiff ’s then
accountant. K Sanmugam was sentenced to imprisonment but has appealed. P F
Ramani was sentenced to a day’s imprisonment and fined.
[21] PW2 was also cross-examined on the plaintiff ’s move from Jalan
Ampang to Brickfields at a time when it was beset by financial woes. He offered G
the following reasons for the move:
(a) the location at Jalan Ampang was prone to floods;
(b) the place was too small and narrow such that they did not even have
sufficient place to conduct an Exco meeting for 28 persons; and H
(c) There was no space for seminars.
Today, the plaintiff is housed in a four-storey building with a hall that can
accommodate 500 persons and an auditorium where courses can be
conducted. I
[22] As regards the sale of the Jalan Ampang property, it was decided by the
National Executive Council. It was advertised and sold to the highest bidder for
RM2m.
A [23] In relation to the issue about ‘membaikpulih Kompleks NUBE di Port

Dickson’, PW2 admitted that renovation works costing about RM1.2m were
carried out. The renovation works were undertaken because the complex was in
a run-down condition. The training centre was built in 1970 and only
renovated in 2006. To the best of PW2’s knowledge, between 1970 and 2006,
B no renovations were carried out on the building. Approval for the renovation
was obtained from the Exco. It is now used for NUBE training and also for
renting out.
[24] During cross-examination, PW2 was referred to, and admitted

C receiving a letter dated 1 December 2010 (D1) from Messrs HK Sheela &
Associates addressed to the plaintiff demanding a sum of RM636,968.24 being
a debt sum due and payable to OA Automation in respect of renovation works
for the NUBE Training Centre. According to PW2, the claim was disputed.
D The third defamatory statement
[25] The third defamatory statement appears at CB, Part B, p 2, right-hand

column under the heading ‘EDISI KEDUA’ and reads as follows:
E
… Jadi eloklah kita terangkan bagaimana kepimpinan NUBE yang seharusnya
melindungi kerjaya ahli-ahlinya telah menyebabkan ahli NUBE kehilangan
perkerjaan di bank.
Pada 2003, NUBE terlibat dalam pertikaian perindustrian dengan CIMB Bank.
F Bermula Oktober 2003, NUBE memulakan tindakan piket besar-besaran seluruh
Negara terhadap CIMB Bank. Tanggal 21/10/2003, sewaktu tindakan piket dibuat
di Bangunan CIMB Jalan Tun Perak, KL, Setiausaha Agung NUBE, J Solomon
telah terlalu teruja lalu mengarahkan ahli-ahli untuk berpiket di dalam dewan lobi
cawangan Tun Perak. Selaku pemimpin kesatuan, Setiausaha Agung tahu dan sedar
bahawa berpiket di dalam dewan lobi bank adalah satu kesalahan dan tidak sah serta
G boleh membawa kesan buruk terhadap ahli yang terlibat, tetapi dia telah gagal
untuk menjaga keselamatan dan kebajikan ahli-ahlinya.
… Sejak pihak Mahkamah berkeputusan bahawa pemecatan J Solomon adalah sah,
ianya telah menyebabkan industri perbankan tanah air bergoncang. Ahli-ahli,
bank-bank termasuklah pihak Kementerian Sumber Manusia mula mempersoalkan
H status J Solomon sebagai Setiausaha Agung NUBE. ‘BOLEHKAH J SOLOMON
MEMEGANG JAWATAN TERSEBUT, SEDANGKAN DIA TELAH DIPECAT
DARIPADA BANK??????’ Dalam usaha agar dia terus berkuasa dan demi
kepentingan peribadi, dia mengarahkan NUBE agar membuat rayuan ke
Mahkamah Tinggi.
I
Sekitar April atau Mei 2010, J Solomon telah menggunakan Exco NUBE agar
membayar gaji dan Iain-Iain elaun kepadanya berjumlah RM 5,000 SEBULAN!!!
Setelah mendapat kelulusan menerima jumlah gaji yang besar itu, dia mula
melakukan pelbagai manipulasi. Dia sebaliknya memberitahu kepada 8 lagi ahli
yang dipecat oleh CIMB bahawa pihak NUBE terpaksa memberhentikan bayaran
gantirugi gaji yang dibayar oleh kesatuan dengan alasan NUBE TIADA DUIT!!! A
Bayangkan kekejaman yang dilakukan, 8 orang tersebut kehilangan kerja kerana
arahan NUBE, sekarang ini NUBE pula menyisihkan mereka. Bagaimanakah
ahli-ahli boleh mempercayai NUBE kerana NUBE enggan bertanggungjawab serta
kerap memungkiri janji terhadap ahli-ahlinya. Kepimpinan NUBE kelihatannya
hanya berminat untuk membelanjakan seluruh Tabung untuk kepentingan J
Solomon dan exconya dan bermewah dengan gaji yang besar dan pakej pelancongan B
ke luar Negara. Tidak cukup dengan exco, kakitangan NUBE dibayar gaji yang
tinggi dan dapat melancong ke luar Negara menggunakan sumber daripada wang
hasil yuran ahli-ahli. Bayangkanlah kawan-kawan semua, kita terpaksa bekerja keras
bertungkus lumus di bank tetapi ramai daripada kita tidak mampu untuk
melancong keluar Negara tetapi dengan yuran yang kita bayar, kakitangan NUBE C
dapat melancong 2-3 kali ke luar Negara.
NUBE sekarang sedang menghantar AJK mereka ke cawangan-cawangan Maybank
untuk mengugut dan menakut-nakutkan kita agar tidak memberi sokongan kepada
penubuhan kesatuan dalaman Maybank. Kita menyeru agar semua Maybankers
tidak akan diperbodohkan lagi dengan penipuan dan ugutan mereka ini. Mereka
dihantar oleh J Solomon kerana dia takut sekiranya Kesatuan Dalaman Maybank D
Berjaya ditubuhkan, dia dan exconya akan hilang segala kemewahan dan
kemudahan yang selama ini mereka nikmati.
[26] PW2 testified that the above statements were defamatory because they
were untrue. They had falsely accused him of being manipulative, and the E
plaintiff ’s leadership of spending all the plaintiff ’s funds for PW2’s own
interests and the interests of the plaintiff ’s Exco. It had also falsely accused the
plaintiff of spending its funds for overseas holiday packages.
[27] PW2 was cross-examined about a conference trip to New Delhi. About F
ten people went for this trip which included a visit to the Taj Mahal and other
places of interest. He agreed that the plaintiff ’s employees ie drivers/dispatch
who were not members of the plaintiff also went for this tour. He confirmed
that the conference trip was not offered to all the members.
G
[28] During re-examination, PW2 disclosed that the conference was
organised by the banking union in India, the All India Banking Employees
Association (‘AIBA’). He claimed that it is the National Executive Council
(‘NEC’) who would decide on who would go for conferences although he
admitted that he sat on the NEC. The NEC would normally select one H
employee of the plaintiff to go to the conference to give him exposure to trade
union activities outside Malaysia. According to PW2, all the tours to the Taj
Mahal and the Agra, accommodation and food were paid for by the AIBA.
Only the flight tickets were paid for by the plaintiff.
I
The fourth defamatory statement
[29] The fourth defamatory statement which appears at CB, Part B, p 3

under the heading ‘EDISI KETIGA’ reads as follows:
A … Ketika sambutan terhadap MAYNEU semakin meningkat, ‘kawan-kawan kita’

di NUBE semakin ‘gementar’ dan telah mula menyebarkan penipuan bertujuan
mengelirukan Maybankers dan ahli-ahli MAYNEU.
‘Kawan-kawan’ yang tidak bertanggungjawab ini turut berlagak gangster dan
beberapa kali cuba mensabotaj pertemuan kita di beberapa cawangan Maybank.
B Mereka menyebar khabar yang kita tidak akan mampu menubuhkan kesatuan
dalaman di Maybank.
… Berdasarkan maklumat dan kajian yang telah kita jalankan, kepimpinan NUBE
sekarang telah menggunakan sebahagian besar wang tabungan tersebut, yang
sepatutnya milik ahli-ahli dan sepatutnya disimpan di dalam akaun Simpanan Tetap
C (Fixed Deposit). Jika kita membuat kiraan kasar, NUBE mempunyai lebih kurang
25,000 ahli seluruh Semenanjung Malaysia dimana kebanyakannya telah menjadi
ahli lebih lima (5) tahun. Sepatutnya di dalam Akaun Simpanan Tetap ‘Benevolent
Fund’ ahli harus ada lebih RM 4.5 juta. (25,000 ahli x 5 tahun keahlian x 12 bulan
setahun x RM 3 sebulan = RM 4.5 juta). Wang Tabung ini mesti dikembalikan
D kepada ahli yang telah berhenti menjadi ahli NUBE. Tetapi adakah NUBE
mempunyai jumlah ini di dalam Benevolent Fund’ mereka?? Maklumat yang
diperolehi, adakah di yakkini pemimpin NUBE sekarang telah menggunakan
sebahagian besar wang tersebut untuk kepentingan peribadi mereka.
Anda fikir sendiri sampai bilakah ingin ditipu NUBE.
E
[30] PW2 states that the statement is defamatory because the contents are
untrue. The benevolent fund is governed by the Benevolent Fund Rules which
are attached to the plaintiff ’s Constitution and Rules. In accordance with the
F Rules. The plaintiff maintains a separate account for the benevolent fund. Its
accounts are audited annually by both internal and external auditors who are
appointed by the Triennial Delegates Conference. The audited accounts are
then remitted each year to the director general of Trade Unions in accordance
with s 56 of the Trades Union Act 1959. There has been no query from the
G director general of Trade Unions in respect of these accounts.
[31] During cross-examination, PW2 testified that there were ex-union

members to whom the plaintiff had refunded their benevolent fund
subscriptions. He agreed that the refund form did state that those who resigned
H could claim a refund. He told the court that if a person resigns, provided that
it is on a clean slate, the plaintiff would still refund him his benevolent fund
subscription.
[32] PW2 told the Court that anyone reading the Offending Leaflet would
I think that the plaintiff ’s National Executive Council members, its president,
general secretary and treasurer were all dishonest, irresponsible and
mismanaging the plaintiff ’s funds and operations for their own personal gain.
The offending leaflet embarrasses the plaintiff and its Exco and disparages its
reputation as a trade union of workers.
[33] PW2 testified that he was aware that the offending leaflet was circulated A
to members of the plaintiff in some Maybank branches as he had received
reports from the members to that effect. As such, PW2 was of the belief that a
large number of bank employees would have read the offending leaflet and the
defamatory statements against the plaintiff and its exco. He referred to the
report dated 6 December 2010 (P1) made by Jeevan s/o M Vijayan (‘PW1’) B
which can be found at p 94 of Part B in bundle CB.
[34] The plaintiff, upon discovery of the offending leaflet, through its
solicitors, wrote a letter (CB, Part B, pp 53 and 92) to the defendants
C
demanding:
(a) the publication of a full and unqualified public retraction and apology in
terms to be agreed by the plaintiff ’s solicitors;
(b) that the defendants make suitable proposals for the payment of damages D
to compensate the plaintiff, its general secretary and the plaintiff ’s Exco
for the damage to their reputation to, and to redeem their reputation;
that the defendants immediately cease and desist from further publishing
to causing the offending leaflet to be published;
(c) to refrain from publishing similar libels in future; and E
(d) to be indemnified for legal costs which the plaintiff would have to incur.
[35] When no response was received from the defendants, the plaintiff
instructed its solicitors to file suit against the defendants. F
[36] The plaintiffs are thus claiming general damages, exemplary damages
and interests, for the defendants to publish a full and unqualified retraction and
apology in a major daily, and an order restraining the defendants from further
publishing or causing to be published similar libels in future and costs. G
[37] In his supplementary witness statement, PW2 also referred to six

comments made by the first defendant in her Facebook profile page. The
comments are as follows:
H
(a) ‘NUBE cuba menghentikan penubuhan kami sb ada kepentingan
peribadi dim NUBE. Maka skrg nie … walau mcm mane usaha diorang
pown … ahli tetap kluar dari NUBE …’ (p 12 of C in CB);
(b) ‘NUBE ini kesatuan menipu’ (p 13 of C in CB); I
(c) ‘dengar cite CIMB nak buat IN HOUSE UNION … betul ke?? …
huhh… nmpk sgt org da malas nak layan NUBE kannn … BYK SGT
MENIPU … lps nihhhh … berkubur la NUBE … for those yg pegang
jawatan EXCO la, BRANCH COMMITTEE la, WORKING
A COMMITTEE la … YANG ALA2 TANGKAP MUAT TUHH … YG

KNOWLEDGE POWN XDE …’ (p 14 of C in CB);
(d) ‘NUBE MENIPU KITA SELAMA INI … SEBAB ITU DIA XKASI
ORG DENGAR … NNTI RAHSIA TERBONGKAR’ (p 15 of C in
B CB); and
(e) ‘Kini NUBE membuka sendiri kesilapan demi kesilapan dasar menutup
kesilapan NUBE. Kesatuan yang tidak tulus akan menyebabkan
terbatalnya Kesatuan tersebut’ (p 19 of C in CB).
C
[38] These comments were published to all the first defendant’s friends on
‘Facebook’ and also to all others who would have access to view the first
defendant’s ‘Facebook’ page. Anyone reading these comments would think
that the plaintiff is a dishonest union who cheats its members; that the
plaintiff ’s Exco are all dishonest and have their own agenda; that the plaintiff
D
does not pay its members from the benevolent fund; that the plaintiff
misappropriates monies; that the plaintiff ’s Exco misappropriates the monies
of the plaintiff and are corrupt; that the plaintiff and its Exco are incompetent
in serving its members.
E
[39] PW2 testified that he took steps to report the matter to the Facebook
administrators and told them to remove the comments about the plaintiff.
Whilst he did not personally ascertain the identity of the Facebook account’s
owner, however, his office did so. It is his office which had compiled the
F Facebook pages. He claimed to have knowledge of who owns the account
because it was shown to him. A Facebook page was shown to him and it had the
name of the first defendant and that of several other people. He knew who
operated that Facebook account because members had confirmed to him that
it was the first defendant’s account. He admitted that he had not called these
G members as witnesses thinking that what he had was enough.
[40] The court notes that PW2 was cross-examined at length. In respect of
the registered address of the plaintiff at NUBE House which was purchased by
the plaintiff in 2007 at a price of RM4.2m. PW2 admitted that there was no
H mandate from the members to purchase the building. It was financed by HSBC
with a loan of about 90% of the purchase price where the building was charged
to secure the loan. He claimed that the plaintiff did not obtain the consent of
the members to obtain the financing because it was unnecessary to do so.
I [41] PW2 was asked about ‘members in benefit’ (‘MIB’) and ‘members not
in benefit’ (‘MNIB’). Members in benefit refer to those members who pay their
subscriptions promptly whereas members not in benefit refers to those who are
in arrears of more than three months’ subscription. He agreed that r 4(4)
provides, inter alia, for those who are more than three months in arrears tol be
struck off the membership register. However, in 2002, the MCBA had stopped A
‘check-off ’ which led to members not being able to pay their subscriptions
promptly. In 2005, the plaintiff ’s Exco (which at that time included himself )
decided to give the members time to pay. He admitted that the Exco were aware
that its decision was not in compliance with r 4(4).
B
[42] PW2 was cross-examined at length about his appointment as general
secretary of the plaintiff. He explained that he was appointed by the then Exco
of the plaintiff in 2001. He was referred to r 10(2) which provides for an hon
general secretary. He was also referred to a notice of extraordinary delegates
conference dated 19 March 2010 (CB, Part B p 11) where agenda 3 states as C
follows:
3 To approve the decision made by the National Executive Council (NEC) on 1st
March 2010 to employ and pay Bro. J Solomon as the General Secretary.
D
The principal office bearers of the NEC (the NUBE Exco) are the president,
deputy president, four vice presidents, the hon general secretary, the assistant
hon general secretary, and the hon general treasurer. PW2 confirmed that the
extraordinary delegates conferenc had approved agenda 3.
E
[43] PW2 was referred to r 4(1)(b)(iv) of the Rules and asked whether he was
aware that under that provision, no person shall be elected to act as an officer
of the plaintiff unless he has been engaged or employed for a period of at least
one year in a trade or industry in which the plaintiff is connected. PW2
admitted that this is still an effective Rule and maintains that he had been F
engaged or employed from 1980–2004. In 2004, he together with nine others
were dismissed by the BCB over a picket in furtherance of a trade dispute. The
dismissal was upheld by the Industrial Court. The High Court in a judicial
review application upheld the Industrial Court award. The Court of Appeal
upheld the decision of the High Court dismissing PW2’s appeal together with G
that of the nine others over the sacking. He further informed the court that
about two years earlier, the High Court had decided against the director general
of Trade Unions in respect of his holding office. He told the court that as hon
general secretary, he is paid RM5,000 plus per month.
H
[44] PW2 agreed that between the years 1998 and 2003, he was an Exco
member of the plaintiff. He was then questioned on various alleged scandals in
the plaintiff.
[45] In respect of the shares scandal, the estimated loss was RM20m. He had I
lodged a police report against various persons, three of whom were in the Exco
of the plaintiff. One had been prosecuted but no restitution has been made.
[46] It was put to PW2 that the sole reason why he had alleged that the
A defendants had published the offending leaflet was because their names were
two out of the seven names that were listed as contact numbers. Whilst he
agreed that it was one of the reasons, he disagreed that it was the sole reason. He
claimed that the offending leaflet was the work of the plaintiffs because their
names appear together with the words: ‘Sila hubungi kami:’ followed by the
B names. He agreed that the spelling of the second defendant’s name ‘Zayuddin
bin Mohamed Yusop’ is different from the spelling of ‘Zayuddin M Yusoff ’ in
the offending leaflet. In any event, the first defendant was seen distributing the
offending leaflets at the annual games. The other reason why PW2 believes that
the defendants were involved is because the seven persons are members of the
C Protem Committee of the In-House Union, MAYNEU, and MAYNEU has
been mentioned in the leaflet. PW2 contends that the defendants were
promoting the in-house union and degrading NUBE.
[47] PW2 admitted that he did not:

D
(a) instruct his solicitors to perform discovery to find hard proof that the
defendants were involved; and
(b) conduct forensic linguistic analysis to ascertain if the offending leaflet
was the work of one or more persons.
E
[48] PW2 confirmed that about ten NUBE members were dismissed and
that was because they were conducting meetings and disparaging the union. He
denied that the defendants resigned. As he remembered it, the defendants were
F expelled.
[49] PW2 agreed that between 2001 and 2005, there was a leadership
struggle which led to there being two Excos and two offices. The dispute came
to such a stage that the members did not know where to pay their membership
G dues and the check-off system was stopped. The dispute was referred to the
director general of Trade Unions (‘DGTU’) but was not resolved as one faction
did not want to have elections. Eventually, PW2’s faction had persuaded the
Minister to form a caretaker committee and filed an application in court to
direct the DGTU to conduct elections. They lost in the High Court but won
H in the Court of Appeal. The DGTU conducted the elections in 2005. During
that elections, PW2 was elected as the hon general secretary.
THE FIRST DEFENDANT’S CASE
I [50] The first defendant, Noorzeela Lamin (‘DW1’) testified on her own
behalf. The court notes that she had furnished two witness statements. She
admitted that they were both her witness statements and informed the court
that she had nothing to add or to amend in them. Following that, the court had
marked her witness statement and supplementary witness statement as WS
PW1 and WS PW1A respectively. The first defendant states that she is A
employed as a clerk in Maybank Bhd since 16 January 1998 and had been a
member of the plaintiff until she ‘berhenti menjadi ahli’ on 2 November 2010.
[51] In para 5 of her statement of defence, the first defendant states that she
B
is a member of MAYNEU. She describes MAYNEU as an in-house union
representing the clerical and non-clerical workers in Maybank Bhd. She further
contributed the following information as regard the formation of MAYNEU:
Pada 16/10/2010, pekerja-pekerja perkeranian dan bukan perkeranian di dalam

Bank tersebut termasuk saya telah membuat keputusan untuk menubuhkan satu C
kesatuan dalaman dan mengadakan satu Mesyuarat penubuhan kesatuan.
Satu Jawatankuasa ‘Pro-tem’ telah dipilih semasa Mesyuarat tersebut yang dihadiri
seramai 51 orang pekerja-pekerja perkeranian dan bukan perkeranian di dalam
bank tersebut. Maka, kesatuan dalaman MAYNEU telah ditubuhkan pada D
16/10/2010.
[52] The first defendant sought to explain why a number of workers of

Maybank had taken the decision to form an in-house union. She maintained
E
that they had the right to form the in-house union. They had the right to join
any union they chose. The advantage is that they would be able to negotiate
directly with the bank without having to go through the MCBA. They would
be better able to protect the rights of the clerical and non-clerical workers in
Maybank and improve their welfare. They would have a more effective union
F
than the plaintiff against whom there were many complaints and issues.
[53] MAYNEU’s application for registration was sent to the Jabatan Hal
Ehwal Kesatuan Sekerja (‘JHEKS’) Selangor on 3 November 2010. The first
defendant claimed that when the plaintiff learnt that the clerical and G
non-clerical workers of Maybank had made an application to register
MAYNEU, they issued numerous circulars (CB, Part B, pp 12–15) with the
aim of preventing them from joining MAYNEU.
[54] MAYNEU was registered on 3 January 2011. However the plaintiff is H

now disputing MAYNEU’s registration through an application for judicial
review against the Director General of Trade Unions.
[55] The first defendant denied typing, sending, publishing or causing to be

typed, sent, or published any comments in Facebook. She admitted that she I
knew Mohd Faizal Mohd Salleh, Shahlan Azie, Yasir Radzi, Jesni Mahmood,
Rahayu Abd Rahim and Mohd Razlan Ramlee as they were her Facebook
friends. However, she denied making the comments to them as alleged by the
plaintiff in the statement of claim.
A [56] In respect of the offending leaflet, the first defendant admitted having
seen and read the leaflet when she attended the Maybank games in Bangi from
3–5 December 2010. She admitted that she was present together with her
family at the Maybank Annual Games Dinner that was held on 5 December
2010. She attended in order to meet with colleagues from Penang who had
B earlier asked her to meet up with them. However, she denied publishing the
said leaflet. She further denied distributing the leaflet on 3–5 December 2010
during the Maybank games. She claimed that she had read pp 1–5 separately
when her friends gave them to her before she saw them in the leaflet.
C
[57] The first defendant admitted that she had read the offending leaflet and
knew that her name appeared on p 1 of the leaflet. She explained that she did
not lodge or make any complaint about her name appearing in the leaflet
because she did not know who the author of the leaflet was. When asked during
D cross-examination about the names that appeared below the words: ‘Sila
hubungi kami;’, she admitted that Wan Ahmad Nazrul bin Wan Nawi is the
president of MAYNEU, Sazali Hj Mohamed is the vice president and
Rajagopal a/l Rakkiah is the general secretary. Norzeela Lamin is herself and the
telephone number below her name is her number and Zarudin Johari is the
E treasurer. However she claimed not to know who ‘Zayuddin M Yusoff ’ is. She
denied that this is the second defendant, claiming instead that the second
defendant’s name is spelt differently (Zayuddin bin Mohamad Yusop). In any
event, she admitted that the ‘Zayuddin’ in her committee is a committee
member. Jesni Mahmood, the last name in the list, is also a committee member.
F During cross-examination, she agreed that the seven names are the names of
the members of MAYNEU and that her name and telephone number appears
at p 1 of the offending leaflet. Despite all that, she nevertheless denied that
EDISI SATU was issued by the Protem Committee and contends that there is
no signature on it to indicate who had issued EDISI SATU.
G
[58] The first defendant admitted that she is aware that NUBE had taken
action against the first, second, third and seventh names in the list. She
admitted that she was present during the trial of the other MAYNEU members
and that she had talked with them. However she claimed that she could not
H remember if she was present in court when Rajagopal Rakkiah gave evidence.
She claimed that she did not know if Rajagopal Rakkiah had not only admitted
to producing the leaflet but also to distributing it. She disagreed with
Ragagopal Rakkiah that the leaflet was done by MAYNEU. She claimed not to
know if the leaflet was widely distributed during the Maybank Annual Games
I in Bangi.
[59] The first defendant was shown an affidavit affirmed by Rajagopal

Rakkiah on 3 February 2012 on behalf of all the other plaintiffs, including
herself. She admitted authorising him to affirm the affidavit on her behalf.
[60] The first defendant was asked about para 11 of her statement of defence A
which contains, inter alia, the following words:
Defendan mengyatakan bahawa sekiranya ia adalah benar bahawa Defendan telah
menedarkan risalah tersebut …
B
but she claimed not to understand the meaning of the words ‘sekiranya ia
adalah benar’. She was also referred to para 14 of the defence and admitted that
in that paragraph she was pleading that the contents of the leaflet were true.
The court notes that para 14 is more of a defence of justification, fair comment
and qualified priviledge.
C
[61] According to the first defendant, the contents of the offending leaflet
were on matters which had been raised by others many times before. Someone
had compiled all those issues in the leaflet to be distributed at the Maybank
games. During cross-examination, she disagreed that the leaflet was to promote D
MAYNEU and claimed not to know what the leaflet was for.
[62] The first defendant was referred to the words ‘Salam Hormat daripada
MAYNEU’ appearing at p 3 of the offending leaflet. She denied that these
words suggest that the offending leaflet was from MAYNEU. She claims that E
when she reads it ‘I do not know who it is from’. The court finds this to be a
most ridiculous answer. She further denied that the words ‘Terima kasih kerana
sokongan padu yang diterima dan majority kakitangan diseluruh
Semenanjung Malaysia di dalam penubuhan Kesatuan Pekerja-pekerja Bukan
Eksekutif Maybank (MAYNEU)’ in EDISI KEDUA suggests that the leaflet F
was from MAYNEU. She further denied that the words ‘Kebelakangan ini
begitu kuat kedengaran khabar penubuhan ‘kesatuan dalaman Maybank’ yang
dikenali dengan nama ‘Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank’.’
and ‘Sementara itu, kita merayu agar sahabat Maybankers terus memberi
Sokongan didalam penubuhan ‘Kesatuan Pekerja-pekerja Bukan Eksekutif G
Maybank’ in EDISI SATU suggest that the leaflet is a product of MAYNEU.
[63] Whilst the first defendant denied defaming the plaintiff as she was
neither the author nor the distributor of the offending leaflet, nevertheless she
felt that there was basis in the statements contained in the leaflet. H
[64] In her second witness statement (‘WS DW1A’), the first defendant
states that she saw the leaflet from a friend. The leaflet had five pages. The first
page dealt with the formation of MAYNEU and the issue about the 80 months
bonus. The second page dealt with issues about the failure of the Ecopark I
project, travel/holiday packages, the dismissal of the general secretary and nine
other workers of CIMB Bank and the gangsterism of the plaintiff and its Exco.
The third page dealt with problems concerning the benevolent fund. The
fourth page contained questions and answers about MAYNEU and issues
A concerning the in-house union. The fifth page showed photographs of the
NUBE building and a banner with the words ‘Maniam 012-3716150’. That
page also dealt with the sale of the NUBE building at Jalan Ampang which had
been left empty for nearly four years. According to the first defendant, Maniam
is PS Maniam, an owner of an insurance agency who acts as the middleman
B between the plaintiff and insurance companies such as Great Eastern and Etiqa
Kad Perubatan Keluarga.
[65] The first defendant denied that the statements in EDISI SATU, EDISI
C
KEDUA and EDISI KETIGA were meant to promote MAYNEU. She denied
that the word ‘Kami’ in EDISI KETIGA refers to MAYNEU but claims that it
refers to the writer of the statements.
[66] The first defendant agreed that the role of Protem Committee of
D MAYNEU is to take care of its members. Before MAYNEU could represent
anyone, it had to gain recognition. She admitted that MAYNEU had not yet
obtained recognition from Maybank. The Protem Committee’s role was to get
members so that it could gain recognition. Notwithstanding that, she denied
that the offending leaflet was produced by the MAYNEU Protem Committee,
E which included herself, in order to get more members. She further denied
distributing the leaflets.
[67] The first defendant was cross-examined about paras 17–18 of her
statement of defence in which she had admitted distributing the leaflets. The
F
court records the following exchange:
Q: According to your pleadings, you distributed the leaflets. How do you

explain this?
G A: No, I did not distribute.
Q: Are you saying that paragraph 17 of your defence is a lie?
A: Yes.
Q: Is paragraph 18 which states that you distributed but only to Maybank
H employees also a lie?
A: Yes.
[68] The first defendant told the court that she knew about the dismissal of
I PW2 by BCB through an article in the Malay Mail dated 29 April 2004.
According to the paper, he was dismissed for illegal picketing on 28 April 2004
together with nine other workers of BCB. She knew that their application for
judicial review was dismissed by the High Court through an article in The Star
dated 22 October 2010.
[69] In relation to the 80 months bonus issue, the first defendant stated that A
the statement is true. She claimed that she had been approached by a NUBE
representative to sign a petition to claim 80 months bonus. According to her,
the plaintiff had rejected an offer of a 33% pay increase and performance bonus
during the negotiations for the 2006–2008 collective agreement. She claimed
that compared with the 17% pay increase and two months contractual bonus B
accepted by the plaintiff, the workers would have lost 16%. Apart from the loss
of 16%, the workers would have also lost in terms of overtime, EPF and
housing loan entitlement. When queried as to the source of her evidence about
the plaintiff rejecting a 33% pay rise, she claimed that it was from the NUBE
website. She had to agree that there was no evidence or proof before the court C
as to what she was saying. She claimed that she had voiced her protests against
NUBE’s alleged rejection of the 33% pay rise but was unable to furnish any
proof of her protests.
D
[70] In relation to the issue on the Ecopark project, the first defendant relied
on an article in The Star dated 14 August 2008 which states that more than
11,000 people had lost between RM1,500 and RM5,0000 as her basis for
saying that the Ecopark project had failed. Those who had invested in the
Ecopark project comprise NUBE members as well as members of the public.
E
However, she agreed that she had no evidence to support her statement.
[71] The first defendant was of the view that the purchase of the building in
Brickfields was ‘aneh’ because there was no mandate. When asked to show the
provision in the constitution which says that mandate from members was F
required for the purchase of the building, the first defendant was unable to find
the provision. She was also queried as to her objections to the renovations to the
Complex NUBE in Port Dickson. She claimed that most of the NUBE
members did not agree with it. When asked for proof of what she was saying,
the first defendant could only offer: ‘They were talking’. G
[72] The first defendant admitted that she was aware of the case between
NUBE & Ors v The New Straits Times Press & Ors in Sivil Suit No S 23–34 of
2007. She disagreed that the basis for the statements about the repairs to the
NUBE building were based on the New Straits Times article on 4 September H
2006 (CB Part B, p 10) which had been retracted by the maker who had also
apologised (CB2, p 95).
[73] In respect of the statement about the travel/holiday packages, the first
defendant claimed that the statement had basis. She claimed that the New I
Delhi Conference was attended by seven representatives from the plaintiff as
well as an employee of the plaintiff. She raised the question as to why the
plaintiff had to be represented by seven persons when other unions were only
represented by the president and the general secretary. She also questioned as to
A why a non-member of the plaintiff (a driver/despatch) should also attend the

conference. Her proof of this issue was: ‘I have their pictures’. However, she
agreed that these pictures were not before the court.
[74] When asked during cross-examination for evidence or proof as to the

B
‘Majlis-majlis makan malam’, ‘perjumpaan mewah’, ‘terus menerus
membelanjakan jutaan ringgit sesukahati kewangan’, she had to admit that
there was no evidence of this before the court.
C [75] In relation to the statement at p 14 of the bundle of pleadings to the

effect that the plaintiff had ‘mengugut dan menakut-nakutkan kita agar tidak
memberi sokongan’ to the in-house union, the first defendant states that this is
supported by police reports which had been made by Zulkifli bin Ali dated
10 February 2011 to the effect that the plaintiff had tried to prevent him and
D his friends in Malacca from campaigning about the in-house union.
Noorhashina bt Mohamed Tajuddin had lodged a police report dated 18
February 2011 after a representative of the plaintiff had shouted ‘You watch
out Shina’ when she and other workers in the Wisma Hangsam branch of
Maybank had refused to meet with him as they were not members of the
E plaintiff but members of MAYNEU. Azwan Hazrulniza bin Abu Hanipah
lodged a police report dated 25 February 2011 about an incident at the
Setiawangsa Branch of Maybank where representatives of the plaintiff had
‘memarahi, mengugut dan memaksa’ workers to listen to a talk to be given by
a representative of the plaintiff. Noreffendi bin Hawi had lodged a report dated
F 23 February 2011 alleging that a representative of the plaintiff had visited the
Wisma Hangsam Branch of Maybank in an attempt to force the workers to
rejoin the plaintiff. On arrival at the branch, one of the plaintiff ’s
representatives was alleged to have uttered the following words: ‘You watch up!!
Jangan sampai kena tangkap!!’
G
[76] Based on all these police reports, the first defendant testified that the
plaintiff was attempting to prevent the formation of MAYNEU by threatening
the workers. However, during cross-examination, she had to agree that all these
H reports were made in 2011 and as such, could have nothing to do with the
offending leaflet.
[77] Apart from sending representatives to the branches to threaten the

workers, the plaintiff had also filed an application in the High Court to cancel
I or revoke the registration of MAYNEU. The plaintiff ’s application was
dismissed on 24 August 2011. On 25 August 2011, NUBE filed an application
for ‘semakan semula’ of the High Court decision as well as an interim stay
against the decision of the High Court. As a result of the stay, MAYNEU was
unable to continue operations and the rights of MAYNEU were thus affected.
[78] According to the first defendant, the statement in the offending leaflet A
about the benevolent fund in the leaflet had basis. She claimed that as a former
member of the plaintiff she had never been given the statement of accounts of
the benevolent fund nor had she ever been told how much was in the fund. On
3 November 2010, she had made a claim on the fund but, to date, had not
received a refund of her subscriptions. Many members including Ibrahim bin B
Norbit had also not received their claims. The first defendant was of the view
that if the statement in the leaflet was defamatory, the plaintiff should provide
proof of the benevolent fund to court.
[79] During cross-examination, the first defendant at first denied that she C
was alleging that the plaintiff was abusing the benevolent fund. However, when
referred to answer 44 of WS PW1A, she agreed that there was a suggestion in
her answer that NUBE was misusing the benevolent fund. She claimed that
there is basis in the third last paragraph of p 3 of CB, Part B, that the monies in
the fund had to be placed in fixed deposit. However, she was unable to show D
any provision in the Benevolent Fund Rules which states that the monies had
to be kept in fixed deposit. She eventually agreed that there was no such
provision in the said Rules.
E
[80] The first defendant states that her claim on the benevolent fund on
3 November 2011 was based on her resignation from NUBE. She was referred
to r 6 of the Benevolent Fund Rules and had to admit that there is no provision
for getting back a refund on her subscription upon resignation. She told the
court that she believed there were issues about the operation of the benevolent
F
fund because she had sent in her claim and heard nothing.
[81] The first defendant told the court that the plaintiff ’s defamation suit
was without basis because all the statements in the leaflet about the plaintiff
were clear and true (‘jelas dan benar’). She challenged the plaintiff to provide G
documentary proof to court that the statements were untrue and defamatory.
[82] The first defendant further alleged that a group of officers and
employees of the plaintiff had attempted to start fights with the staff of Menara
Maybank at Starbucks which was located at the foyer of Menara Maybank. H
There were quarrels with the security personnel. She was targeted by this group
where a few of them had chased her and taken her photograph without her
permission. She had lodged a police report in respect of that incident.
[83] During cross-examination, the first defendant was referred to para 6 of I

her statement of defence which cross-referred to paras 5–9 of the statement of
claim. Paragraphs 5–9 of the SOC relates to the first defendant’s defamatory
publication in Facebook. Notwithstanding the contents of paras 6–9 in her
statement of defence, the first defendant did not admit to placing the
A comments in her Facebook. However, she admitted to having a Facebook

account and six Facebook friends where all comments posted on her Facebook
page could be read by her friends.
[84] The first defendant was referred to the Facebook entries at CB, Part C,
B
pp 4–47. Referring to p 4 (comment 1), the first defendant testified that she did
not know Lisda Sadali. She claimed that she did not post the comment under
her name on that page. She explained that although the Facebook account was
opened under her name, however it was not operated by her but by her younger
sister named Sufiah Lamin. Sufiah Lamin did not work with Maybank but with
C
Telecoms. The question arises as to why Sufiah Lamin, an employee of
Telecoms, should be posting comments about Maybank, MAYNEU and
NUBE matters. Similarly, in respect of the Facebook comments at pp 6
(comment 1) and p 7 (comment 3), the first defendant claimed that it is her
sister’s posting. In respect of p 10 (comments 4–5) and p 12 (comment 8), it is
D
her evidence that they are not her comments. She offered an explanation that
‘maybe someone hack my Facebook’. In respect of p 10 (comment 6), p 11
(comment 7), p 13 (comments 9–11), p 14 (comments 12–13), she again
stated that these were not her comments.
E
[85] The first defendant told the court that she had reported to the Facebook
administrators that somebody had hacked into her Facebook account. She was
asked for her report:
Q: Where is the report?
F
A: Don’t have it now.
Despite being told to produce it, and after time had been given to her to
produce it, the first defendant was not able to produce the report that she made
G to the Facebook administrators. Much later, she offered the explanation that
she had not brought the report because it was made on line.
[86] During cross-examination, the first defendant was referred to CB, Part
C, p 15, where the name Jesni Mahmood appears in the Facebook posting on
H 8 December 2010 at 11.43pm. She admitted that there is a person named Jesni
Mahmood in the MAYNEU Protem Committee. She claimed that comment
14 posted at 11.44pm in response to Jesni Mahmood’s posting was not her
comment. She claimed that she did not know whose comment it was or who
had hacked into her account and posted the comment in her name. Similarly,
I she claimed that comment (15) posted at 11.56pm was not her comment and
she did not know whose comment it was.
[87] The first defendant was cross-examined over all the Facebook postings
on 9–10 December 2010, 16 December 2010, 1–2 December 2010,
25 November 2010, 21 November 2010, 20–21 November 2010, A

18–19 November 2010, 4 November 2010, 16 October 2010 and 20 October
2010. Her response quite simply was that they were all not her comments, she
did not know whose comments they were and that someone must have hacked
into her account. However, she admitted that she did not lodge any police
report after she found out about the alleged hacking. B
[88] The first defendant claimed that she only realised that her account had
been hacked when she received the photocopy of pp 4–47 of Part C of CB. She
claimed that her sister (who had posted comments in late December 2010 to
early January 2011) had never informed her that there were strange entries in C
the her Facebook account. The court finds the first defendant’s testimony
about not knowing about the comments posted on her Facebook extremely
difficult to believe.
THE SECOND DEFENDANT’S CASE D
[89] The second defendant, Zayuddin bin Mohamad Yusop, categorically

denied making or publishing the offending leaflet or causing it to be published.
He denied distributing the said leaflet at the Maybank Annual Games from
E
3–5 December 2010. Whilst he had attended the opening ceremony on the 3
December 2010, he denied being present on the 5 December 2010. Whilst
maintaining that he did not make or publish the offending leaflet, the second
defendant maintained that its contents were all true and as such the issue of
defamation would not arise.
F
[90] The second defendant admitted having seen and read the offending
leaflet which was given to him by a friend in Maybank whose name he could
not recall.
G
[91] Referring to the issue of the 80 months bonus, the second defendant
said that it was not true. He reiterated the first defendant’s evidence about
NUBE rejecting a 33% pay increase and accepting a 17% increase, thus
causing NUBE members to lose 16%. The court does not intend to repeat his
evidence. During cross-examination, he admitted that he had no proof that the H
plaintiff had rejected a 33% pay rise.
[92] The second defendant also reiterated the testimony of the first
defendant in relation to the dismissal of J Solomon together with nine other
workers of BCB for an offence of unlawful picketing on 28 April 2004. He I
knew about the dismissal from a newspaper article in The Malay Mail dated
29 April 2004.
[93] The second defendant reiterated the evidence of the first defendant in
A relation to the Ecopark project and the promises of J Solomon during the
elections campaign. The court does not intend to repeat his evidence. During
cross-examination, he admitted that he did not have any proof as to the
amount of losses of the investors in the project.
B [94] The second defendant reiterated the evidence of the first defendant in
relation to the threats and actions to frighten the plaintiff ’s members from
giving their support to MAYNEU. He repeated what had allegedly happened
to Noorhashina bt Mohamed Tajuddin, Zulkifli bin Ali, Azwan Hazrulniza bin
Abu Hanipah and Noreffendi bin Hawi and the reports that were lodged by
C them. He agreed the these reports were lodged between 10 February 2011 and
25 February 2011 and thus had no connection with the offending leaflet in this
case. The court does not intend to repeat this evidence here.
[95] The second defendant told the court that he stopped being a member of
D the plaintiff in November 2010. He complained that he had not received any
refund from his benevolent fund subscriptions since the date he left the
plaintiff.
[96] The second defendant was asked about what he felt was strange (‘aneh’)
E about the purchase of the new building in Brickfields. He repeated almost
exactly the same evidence as the first defendant about the Exco needing to get
the consent of the members before buying the new building. When asked to
show the provisions in NUBE’s constitution which states that the Exco was
required to obtain the mandate from the members, his response was that there
F was no such provision. He was also unable to furnish any proof that the
purchase of the building in Brickfields was contrary to the NUBE constitution.
[97] The second defendant was of the view that there was nothing wrong
about renovating the NUBE Complex. However, in relation to buying a new
G building in Brickfields, he was of the view that NUBE should have returned the
members’ investment in the Ecopark project before buying the building since
at that time NUBE already had its own building.
[98] The second defendant admitted that he had no proof as to the overseas
H
holiday expenses incurred by Solomon and the NUBE Exco. He had also no
proof in relation to the ‘Majlis-majlis malam dan perjumpaan mewah’ which
the plaintiff was alleged to have held. He had no proof that the NUBE Exco
was spending millions of RM as they pleased. He had no proof that the NUBE
leadership had used up a major portion of the funds from the benevolent fund.
I
He agreed that there was nothing in the Rules of the Benevolent Fund which
states that the monies of the fund have to be kept in fixed deposit. In light of
these foregoing answers, the following exchange was recorded:
Q: Tadi Encik Zayuddin telah tidak dapat menunjukkan bukti bahawa apa
yang disebut dalam risalah ini benar. Kalau begitu, macamana Encik A
Zayuddin dapat kata segala maklumat dalam risalah ini benar?
A: (tidak dapat jawab)
[99] The second defendant sought to distance himself from para 13 of his B
own defence on the grounds that it was ‘dibuat oleh bekas peguam saya’.
Paragraph 13 reads as follows:
Defendan menegaskan bahawa berdasarkan fakta yang benar, sebagai ahli
jawatankuasa kerja MAYNEU untuk memenuhi tanggungjawab moral dan/atau C
sosial telah serahkan risalah-risalah tersebut yang mengandungi suatu komen
tentang Plaintif kepada pekerja-pekerja Maybank.
The court noted that if indeed the defence filed was not his defence, this would
have very serious repercussions. On being queried by the court as to whether he
had lodged a report with Bar Council, the second defendant admitted that he D
had not done so. He nevertheless maintained that para 13 of his own defence
is untrue.
[100] Similarly, the second defendant sought to say that para 14 of his
defence was not true. in Para 14, the second defendant pleads, inter alia, as E
follows:
Defendan tidak serahkan risalah tersebut kepada orang awam dan penagihannya
adalah terhad kepada pekerja-pekerja Maybank dimana sebilangan daripada mereka
(yang layak) telahpun letakjawatan dari Plaintif pada ketika itu. F
The second defendant admitted that he had referred to his statement of defence
at the time of preparing his witness statement, WS DW 2. The witness
statement was prepared in September 2011 after discussions with his present
solicitors. He further told the court that at the time of preparing the G
supplementary witness statement (WS DW 2A) in October 2011, he had again
referred to his statement of defence.
[101] During re-examination, he informed the court that ‘Saya baru submit
pengakuan’, referring to the fact that he had ‘baru fail’ a ‘Cadangan Pembelaan H
Terpinda’.
[102] The second defendant was referred to CB, Part B, p 1 and to the name
‘Zayuddin M Yusoff ’ and the telephone No ‘019-3931487’. He was asked
whether, apart from the spelling of ‘Yusoff ’, that name and telephone number I
refers to him. His answer was a surprising: ‘Tak pasti’. However he admitted
that the other names in the list all belonged to the committee members of
MAYNEU. He admitted that when he saw the leaflet and his name and
handphone number on p 1 under ‘Sila hubungi kami:’, he did not take any
A steps to distance himself from the leaflet. He claimed not to be aware that
Rajagopal Rakkiah, who is listed as no three in the list of names, was then the
Setiausaha Agong of MAYNEU or that he had, in an action against him by
NUBE, affirmed an affidavit admitting that the offending leaflet was
distributed by MAYNEU in order to promote MAYNEU.
B
[103] However, the second defendant admitted that he is aware that the
seven persons named in the list at p 1 had commenced a defamation suit against
NUBE and J Solomon vide 22NCVC-1032/10 of 2011. When shown an
affidavit affirmed by Rajagopal Rakkiah, the second defendant confirmed that
C he had authorised Rajagopal to affirm that affidavit on his behalf. He was
referred to paras 7–9 of Rajagopal’s affidavit and he confirmed that the first
page of ‘RR-1’ was issued by MAYNEU for the purpose of promoting
MAYNEU. He also confirmed that p 1 in ‘RR-1’ is the same as p 1 in the
offending leaflet.
D
[104] With reference to EDISI SATU and EDISI KEDUA, the second
defendant denied that reading the two editions as a whole, it was obvious that
they were published by MAYNEU and an appeal for support for the formation
of MAYNEU. With reference to EDISI KETIGA, he denied that the questions
E and answers were meant to promote MAYNEU or that they were issued and
published by MAYNEU.
[105] The court notes that in relation to the offending leaflet, the defendants
F
had repeatedly sought to explain that they were not the authors of the leaflet. As
correctly pointed out by learned counsel for the plaintiff, the issue is not the
authorship of the offending leaflet but its distribution.
THE EVALUATION OF THE EVIDENCE AND FINDINGS

G
[106] In coming to a decision in this case, the court has carefully perused the
evidence adduced by both parties, paying special attention to the documentary
exhibits in this case.
H [107] The plaintiff ’s claim against the two defendants is based on

defamation. The plaintiff alleged that the defendants had published or caused
to be published the offending leaflet, comprising five pages, which contains
defamatory comments about the plaintiff and the plaintiff ’s National
Executive Council members. Against the first defendant, Norzeela bt Lamin,
I there is a further allegation of publishing or causing to be published defamatory
comments against the plaintiff and its Exco in her Facebook webpage.
[108] The court admits to having some difficulty with the defendants’
defences. Both the defendants have denied publishing the offending leaflets.
This can be seen in para 10 of the first defendant’s statement of defence and A
para 6 of the second defendant’s statement of defence. However, what adds
difficulty to the equation is the fact that the first and second defendants had, in
paras 14 and 10 of their respective defences, gone on to plead justification, fair
comment and qualified privilege. These are defences which are normally
pleaded where publication of the offending document is not in issue. To further B
compound matters, both defendants had, at paras 17–18 and paras 13–14
respectively of their respective defences, actually admitted distribution of the
offending leaflet to third parties, albeit limited to the employees of Maybank.
C
[109] As far as the defamatory comments in the first defendant’s Facebook
webpage is concerned, the first defendant had in paras 6–7 of her statement of
defence admitted to the publication of the said defamatory comments. The
court will, in due course, deal with each of the two areas of alleged defamation
separately. D
THE LAW
[110] What are the ingredients of a cause of defamation? In Ayob bin Saud v
TS Sambanthamurthi [1989] 1 MLJ 315, His Lordship Mohamed Dzaiddin J E
(as His Lordship then was) had held that in defamation cases, the burden lies
on the plaintiff to prove that:
(a) the words are defamatory;
F
(b) the words refer to the plaintiff; and
(c) the words are published.
[111] What is a defamatory statement? The answer can be seen in a number

of cases which have dealt with this question. In Tun Datuk Patinggi Haji G
Abdul-Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393, His Lordship
Richard Malanjum J (as His Lordship then was) stated that:
As to whether the words complained of in this case were capable of being and were,
in fact, defamatory of the plaintiff, the test to be considered is whether the words H
complained of were calculated to expose him to hatred, ridicule or contempt in the
mind of a reasonable man or would tend to lower the plaintiff in the estimation of
right thinking members of society generally (see JB Jeyaretnam). Mohamed Azmi J
(as he then was) in Syed Husin Ali v Sharikat Pencetakan Utusan Melayu Bhd & Anor
[1973] 2 MLJ 56 at p 58 said: I
Thus, the test of defamatory nature of a statement is its tendency to excite against
the plaintiff the adverse opinion of others, although no one believes the statement
to be true. Another test is: would the words tend to lower the plaintiff in the
estimation of right-thinking members of society generally? The typical type of
A defamation is an attack upon the moral character of the plaintiff attributing

crime, dishonesty, untruthfulness, ingratitude or cruelty.
Words could still be defamatory even if they did not really lower a plaintiff in the
estimation of those to whom they were published. The law looks only to its tendency
B (see JB Jeyaretnam v Goh Chok Tong; Syed Husin Ali v Sharikat Pencetakan Utusan
Melayu & Anor).
[112] In the Court of Appeal case of Chok Foo Choo @ Chok Kee Lian v The
China Press Bhd [1999] 1 MLJ 371, His Lordship Gopal Sri Ram JCA held
C that:
… the test which is to be applied lies in the question: do the words published in their
natural and ordinary meaning impute to the plaintiff any dishonorable or
discreditable conduct or motives or a lack of integrity on his part? If the question
D invites an affirmative response, then the words complained of are defamatory.
THE ALLEGED DEFAMATORY COMMENTS ON FACEBOOK

E
[113] The court will now deal with the alleged publication of defamatory
comments against the plaintiff and its Exco in her Facebook webpage by the
first defendant.
F [114] The first defendant submits that all the contents of the Facebook
entries at pp 4–47 of CB, Part C are hearsay and inadmissible and cannot
therefore be accepted by the court. In the first place, Part C consists of
non-agreed documents. Further, the first defendant pointed out that PW2 had
admitted that the documents were given to him by one of the plaintiff ’s staff.
G In light of the fact that the said staff was not called as a witness before the court
to be cross-examined as to his recovery of the alleged defamatory comments, as
to how and when the alleged defamatory statements were recovered, it is
contended that the Facebook comments are inadmissible. To further
compound matters, the first defendant alleges that the said comments are
H unclear thus making the calling of the person who downloaded the comments
to be infinitely necessary. Learned counsel for the defendants submitted that
since the plaintiff had failed to call the said witness, s 114(g) of the Evidence
Act 1950 is invoked and there is an adverse inference that if that witness is
called, the evidence adduced would not have been favorable to the plaintiff.
I
[115] In this regard, learned counsel for the first defendant had referred the
court to the case of Nagandran a/l Kalianna Gaunder(t/a Raju Restoran) v
Melinda Alison Monteiro & Ors [2011] 4 MLJ 224; [2011] 1 LNS 466 where
the plaintiff was suing the defendants for defamation as a result of alleged
statements made by the first defendant and published in the internet. In that A
case, the plaintiff referred to ID3 (the alleged defamatory e-mail) which was
marked as ID3 because the maker of the document was not called as a witness.
The question arose as to whether oral evidence of the contents of ID3 is
admissible without proving the contents of the said document. The court in
that case relied on the decision in Allied Bank (Malaysia) Bhd v Yau Jiok Hua B
[1998] 2 CLJ 33 in coming to a decision that because the maker of ID3 was not
called to give evidence, ID3 is hearsay and cannot be admitted as evidence.
[116] The first defendant further contends that the plaintiff had failed to C
take any steps to check the details of the owner of the Facebook account or the
internet address with the Facebook administrator to confirm that the account
belongs to the first defendant. And since this has not been done, the first
defendant contends that the plaintiff ’s claim of defamatory comments in
relation to the Facebook entries has not been proved. D
[117] The plaintiff ’s response to this is simple: In paras 6–7 of her statement
of defence, the first defendant had admitted to publication of the Facebook
comments in her Facebook account. The plaintiff states that since parties are E
bound by their pleadings, the first defendant cannot now deny having
published or caused to be published the Facebook comments.
[118] The court has carefully perused the statement of defence of the first
defendant. Notwithstanding the fact that notice of change of solicitors had F
been filed on 19 February 2011 and an amended notice of change of solicitors
dated 28 September 2011 filed on 25 October 2011, it was only on 26 March
2012, after the hearing of all the witnesses, including the evidence of both
defendants, had been completed that counsel for the defendants filed an G
application vide summons in chambers for leave to amend and file amended
defences in respect of both defendants. The court had refused leave to amend,
against which decision the defendants had lodged appeals. Grounds of decision
had duly been rendered by the court in respect of that appeal and the court does
not propose to go into that matter again here. H
[119] In light of the stand taken by the court in refusing leave to amend the
defences, the court must take the defences of the two defendants as they stand.
I
[120] There is no dearth of authorities which have clearly stated the legal
principle that parties are bound by their pleadings. In the case of Anjalai
Ammal & Anor v Abdul Kareem [1969] 1 MLJ 22, the Federal Court quoted
p 31 of Halsbury’s (3rd Ed), Vol 3 to the effect that:
A A party is bound by his pleadings unless he is allowed to amend them, and he is

therefore bound by his particulars, which are, in effect, part of the pleadings under
which they are delivered.
[121] The court further notes the case of Thian Oon Kin v Rekarya
B
Consultant Group & Ors [2010] 8 MLJ 726 cited by learned counsel for the
plaintiff. There, the court held that once the first defendant had admitted to
receiving payments from Pernas Jaya Sdn Bhd, it was not open to him to deny
it. The court had further found that the first defendant’s stance that no monies
were received by them was not only unpleaded, but was in fact admitted.
C
[122] So too in this case. The court has carefully perused the statement of
defence of the first defendant. Paragraphs 6–7 and 9 of the defence are very
pertinent here and for ease of reference is reproduced below:
D
6 Berkenaan perenggan 5 hingga 9 Pernyataan Tuntutan, Defendan
menegaskan melainkan bahawa beliau hanya meletakkan komen-komen
tersebut di dinding halaman peribadi ‘FACEBOOK’ beliau, segala
pernyataan Plaintiff yang lain di perenggan-perenggan berkenaan adalah
dipertikaikan dan Plaintif diletakkan atas bukti yang kukuh.
E
7 Defendan menegaskan bahawa komen-komen tersebut hanya di letakkan di
dinding halaman peribadinya dan tidak mempunyai niat untuk
menyebarkan dan/atau menyedarkan kepada sesiapapun termasuk enam
(6) orang yang dinamakan di perenggan 10 Pernyataan Tuntutan.
F 9 Berkenaan perenggan 13 Pernyataan Tuntutan, melainkan bahawa
Defendan meletakkan dalam dinding halaman peribadi ‘FACEBOOK’
beliau dimana hanya individu-individu yang terhad [dalam senarai rakan]
yang dapat akses kepadanya, kandunagn perenggan 13 yang lain adalah
dipertikaikan dan Plaintif adalah diletakkan atas bukti yang kukuh.
(Emphasis added.)
G
[123] The court is satisfied that vide these two paragraphs, the first
defendant had clearly admitted to placing the impugned comments on her
Facebook page. The fact that she had placed those comments is not in issue.
H Her only qualification in para 7 is as regards the lack or absence of intention to
‘menyebarkan dan/atau mengedarkan’ the comments to anyone, including the
six persons mentioned in para 10 of the statement of claim. The court notes
that para 7 contradicts para 9 where the first defendant pleads that the entries
in her Facebook webpage were only accessible to her Facebook friends.
I
[124] Apart from the first defendant’s admission of publishing the
comments on her Facebook page, the court is also of the view that the very
comments on the Facebook webpage would point to the first defendant being
the author of, and the person who published the comments. The comments
clearly refer to NUBE, MAYNEU and the events surrounding the formation of A
MAYNEU. The court finds it unbelievable that the first defendant’s sister,
Safiah Lamin who works in Telecoms, would be interested in posting
comments on NUBE and MAYNEU. Neither would she have the necessary
knowledge. Further, the court notes the various responses of the first
defendant’s Facebook friends to ‘zeela’ which further points to the first B
defendant being the one who had posted the alleged defamatory comments.
[125] In light of this finding, the court agrees with learned counsel for the
plaintiff that since the first defendant had admitted to publishing the C
impugned comments in her Facebook, there is no necessity for the plaintiff to
prove the existence of those comments in pp 4–47 of Part C of CB. The only
thing left to consider in respect of the Facebook comments is whether they refer
to the plaintiff and the plaintiff ’s Exco and whether they are defamatory.
D
[126] The court has carefully scrutinised the Facebook comments under the
name ‘Noorzeela Lamin’. The court has high-lighted a number of comments as
follows:
(a) ‘People do realize that they have been cheated, they have been E
manipulated by J Solomon. But they still hoping that betrayal J Solomon
will get for them such as the 90 days maternity leave’ (p 6);
(b) ‘NASIB BAIK LA NUBE NIE DITUBUHKAN MASA KITORANG
BELUM LAHIR … KLU DITUBUHKAN MASA KITORANG DA F
LAHIR … DGN PEMIMPIN MCM NIE … CONFIRM … NUBE
BERKUBUR DA LAMA DA …’ (p 10);
(c) ‘NUBE cuba menghentikan penubuhan kami sb ada kepentingan
peribadi dlm NUBE. Maka skrg nie … walau mcm mane usaha diorang
pown … ahli tetap kluar dari NUBE …’ (p 12); G
(d) ‘NUBE tu kesatuan menipu MAYNEU la kesatuan yg telus dan benar

tulus ikhlas …’ (p 13);
(e) … nmpk sgt org da malas nak layan NUBE kannn … BYK SGT H
MENIPU … lps nihhhh … berkubur la NUBE … for those yg pegang
jawatan EXCO la, BRANCH COMMITTEE la, WORKING
COMMITTEE la, … YG KNOWLEDGE POWN XDE …’ (p 14);
(f ) ‘YANG PEGANG JAWATAN KEBANYAKANNYA FULL TIME …
I
XKEJE KAT BANK … SO HARAP KAT DUIT YG KITA BAYAR
TIAP2 BULAN LA … DARI JAWATAN GENERAL SECRETARY
SMPAILA JAWATAN DRIVER …’ (p 14);
(g) ‘MEREKA NIE SMUE MEMPERMAINKAN HAK KITA SEBAGAI
A AHLI MENIDAKKAN SESUATU YG BENAR … SEBABNYA …

MEREKA BERGANTUNG KPD YURAN BULANAN KITA UTK
MENERUSKAN HIDUP’ (p 15);
(h) ‘NUBE MENIPU KITA SELAMA INI … SEBAB ITU DIA XKASI
B ORG DENGAR … NNTI RAHSIA TERBONGKAR …’ (p 15);
(i) ‘KLU 3 SOALAN NIE NUBE XBOLE JAWAB … SAH LA SEMUA
ORANG KENE TIPU HIDUP2 DGN SOLOMON NIHH …’ (p 16);
(j) ‘CIRCULAR NUBE TERBARU … TUNTUT BONUS 80 BULAN
C DR MAYBANK. NUBE SEMAKIN TIDAK WARAS’ (p 29);
(k) ‘… orang klu nak menipu org lain,,, xyah la merepek smpai nak mintak
bonus 80 bulan kat bank …’ (p 30);
(l) ‘Lps nie mesti NUBE nak claim increment gaji 32% yang bank nak kasi
D tuhhh,,, kakakaka’ (p 33); and
(m) ‘NMPK SGT KESATUAN YG SEDIA ADA NI KESATUAN
MENIPU ORG …’ (p 41).
These comments placed by the first defendant clearly refer, inter alia, to the
E plaintiff, its committees and to PW2. They are variously described as cheats
and liars, manipulating and lying to the members of the plaintiff for their own
devious ends. The second defendant is further described as an employee of the
plaintiff who is living off the contributions or monthly fees of the plaintiff ’s
members. The Exco, branch committee and working committee are described
F as being unknowledgeable and imminently about to cause the downfall and
demise of the plaintiff as its members were all leaving NUBE.
[127] The court has no hesitation in finding that these comments of the first
defendant in her Facebook page are capable of defamation, that they refer to
G the plaintiff and its Exco and that they were published. The very presence of
multiple comments by the first defendant’s Facebook friends who were
engaging her in active dialogue constitutes undeniable proof of publication of
the comments.
H
[128] As regards the offending leaflet, the court notes that whilst both
defendants had denied publishing the offending leaflet, they had also both, in
their respective defences, admitted to distributing the offending leaflet to third
parties. The court refers to paras 17–18 of the first defendant’s statement of
I
defence which reads as follows:
17 Defendan menegaskan bahawa berdasrkan fakta yang benar, sebagai Penolong

Setiausaha MAYNEU untuk memenuhi tanggungjawab moral dan/atau social telah
serahkan risalah-risalah tersebut yang mengandungi suatu komen tentang Plaintif
kepada pekerja-perkerja Maybank.
18 Defendan tidak serahkan risalah tersebut kepada orang awam dan pengagihan A
adalah terhad kepada pekerja-pekerja Maybank dimana sebilangan daripada mereka
(yang layak) telahpun letak jawatan dari Plaintif pada ketika itu. Oleh itu,
kandungan perenggan 19 dalam Pernyataan Tubntutan adalah dinafikan oleh
Defendan dan meletakkan Plaintif kepada bukti yang ketat berkenaan
kandungannya. (Emphasis added.)
B
The second defendant’s defence contains almost similar provisions where he
admitted distributing the leaflets, but only to the workers of Maybank.
[129] In light of the admissions of both defendants in relation to the

C
distribution of the offending leaflets in their respective statements of defence
coupled with the evidence of Jeevan a/l M Vijayan (‘PW1’) as to the
distribution of the offending leaflets at the Maybank Annual Games, the court
finds that there was publication of the leaflets by the defendants.
D
[130] As to whether the contents of the offending leaflet was defamatory and
referred to the plaintiff and its Exco, the court will look at the leaflet under a
number of headings or subject matters.
[131] The defendants contend that the issue about the 80 months bonus was E
raised by the plaintiff through a circular issued by PW2 himself. The court
notes the existence of the circular which appears at p 13 of Part B of CB.
Learned counsel for the defendants has submitted that the 80 months bonus
issue was so misleading as to amount to a blatant lie. However, the plaintiff has
pointed out that it is not the 80 months bonus which the plaintiff is taking F
issue with the defendants but that portion of the leaflet which stated that the
plaintiff ’s members had lost 16% pay increase as a result of the actions of the
plaintiff.
[132] In this regard, the court recalls the explanation of PW2 that what G
MCBA had proposed was a 14% salary adjustment AND to dilute the two
months’ contractual bonus into salary and to pay performance bonus at the
discretion of the bank. The plaintiff had not agreed with the proposal but had
managed to negotiate a 17% salary adjustment with the two months’ bonus
still intact. The proposal was accepted by the membership and in due course H
the collective agreement was signed. As such, there was no issue of a loss of 16%
salary adjustment.
[133] The court notes that the first defendant’s calculation of a 16% loss to
members was based on the plaintiff ’s alleged rejection of a 33% pay increase I
and performance bonus during the negotiations for the 2006–2008 collective
agreement and subsequently negotiating and signing a collective agreement for
only a 17% pay increase. However, the first defendant was unable to furnish
any proof that the plaintiff had indeed rejected a pay increase of 33% but was
A only able to say that it was from the NUBE website. The second defendant had
only reiterated the evidence of the first defendant with regard to this issue.
[134] The court is of the considered view that in order to establish the
defence of justification, the defendants would have to do more than merely
B saying that the source of their information was from the NUBE website. An
allegation that a union which is tasked with looking out for the interests of its
members would have caused its members to suffer loss of pay is a very serious
allegation indeed. Such an allegation, if untrue, would definitely be
defamatory. The court finds that the defendants have not succeeded in proving,
C on a balance of probabilities, the defence of justification. The court thus finds
that the statement in the offending leaflet under the heading ‘80 Bulan Bonus’
about the plaintiff having caused its members to suffer a 16% loss to be both
false and defamatory.
D
[135] In relation to EDISI SATU, the plaintiff ’s complaint is to found at the
last paragraph where it is stated that:
Tujuan utama cerita ini dibangkitkan adalah untuk menunjukkan betapa

kepimpinan NUBE yang ada sekarang ini Tidak Amanah, Tidak
E Bertanggungjawab, Mementingkan Diri Sendiri, Bermotif Politik, Tiada Ketulusan
dan Tidak Demokratik.
The plaintiff did not dispute that there was wrongful use of NUBE funds in the
share market or the failure of the Ecopark project. The court finds that there is
F no serious dispute that the failure of the Ecopark project had caused losses to
those who had invested their monies in it. Whilst the plaintiff had not refunded
monies to the investors, however, according to PW2, they were given discount
cards where they would be able to utilise and enjoy many facilities. As regards
the losses from the improper purchase of shares, PW2 had explained that a
G police report was lodged and certain individuals had indeed been brought to
court and sentenced. Whilst there was no reimbursement of the monies lost
from the perpetrators, which would lead to more than a measure of discontent
amongst some of the members, especially those who were lobbying for the
formation of MAYNEU, however care must be taken when throwing out
H strong words such as ‘Tidak Amanah, Tidak Bertanggungjawab,
Mementingkan Diri Sendiri, Bermotif Politik, Tiada Ketulusan dan Tidak
Demokratik’. which would have the effect of lowering the estimation of the
plaintiff both to its members as well as to the public at large.
I [136] In relation to the Ecopark project, the first defendant was only able to
say that she relied on an article in The Star newspaper, which article was never
produced before the court. Whilst alleging that more than 11,000 persons had
lost between RM1,500 and RM5,000, she was unable to furnish any proof
whatsoever as to these figures in support of her statement.
[137] In respect of her statement that the NUBE Exco was spending millions A
to buy the building in Brickfields, to renovate the NUBE Complex in Port
Dickson, for overseas travelling, and for grand dinners, the defendants were
unable to provide any proof for the statement. As such, it would appear that the
defendant’s defence of justification was premised merely on her explanation
that ‘They were talking’. B
[138] In this case, the court finds that the plaintiff had provided a reasonable
explanation for the purchase of the new building and the renovation of the Port
Dickson Complex which had not been renovated since it was built in 1970.
The plaintiff had also offered an explanation for an employee being given an C
opportunity to attend the New Delhi Conference. Whilst the side visits to the
Taj Mahal and the Agra were not disputed, it was explained that the expenses
for food, accommodation and sightseeing were borne by the AIBA and that
only the flight tickets were borne by the plaintiff.
D
[139] As such, in light of the defendant’s failure to prove that there was
justification for their statement that the plaintiff and its Exco were ‘Tidak
Amanah, Tidak Bertanggungjawab, Mementingkan Diri Sendiri, Bermotif
Politik, Tiada Ketulusan dan Tidak Demokratik’, the court finds that the
plaintiff has succeeded in proving that the aforestated comments in EDISI E
SATU were directed at the plaintiff and its Exco and that they were defamatory.
[140] In EDISI KEDUA, the thrust of the leaflet was against J Solomon, the
plaintiff ’s general secretary. The attack against him came from a number of
F
fronts, namely:
(a) that he had instigated the plaintiff ’s members to picket in the lobby of
CIMB bank and had caused them to be dismissed. As general secretary,
he should have known better and should have looked out for the interests
of the plaintiff ’s members when organising the picketing; G
(b) although PW2 was also dismissed, however he was employed by the
plaintiff as general secretary at a salary of RM5,000 per month. However,
those who had lost their jobs following his instructions to picket were not
so fortunate. They soon lost the ‘bayaran gantirugi kehilangan kerja’ that
H
they were being paid because NUBE allegedly had no money to continue
payments; and
(c) the leaflet also questioned whether a person who had been dismissed
could still be the general secretary of the plaintiff.
I
[141] On this issue, the court finds that it is not disputed that PW2 was
indeed dismissed but had been appointed as the general secretary of the
plaintiff. PW2 himself had admitted to receiving a salary of RM5,000 per
month as salary. However, the court finds the issue of the eight other dismissed
A workers losing their compensatory payments to capable of being defamatory.

The statement would point to the unfair, unethical, and ungrateful nature of
the plaintiff and PW2 in that the dismissed workers had followed the directions
of the plaintiff in picketing but, after being dismissed, had been abandoned by
their union. For a trade union which is tasked with fighting for and upholding
B the rights of its workers, this is a very serious allegation which would definitely
lower the esteem of the plaintiff among its members and may well lead to its
members turning away from the plaintiff to seek succor elsewhere. In the
absence of any evidence from the defendants to prove the truth of its allegations
about the plaintiff and PW2’s lack of concern, care and consideration for the
C fate of the eight dismissed workers, the court finds certain portions in EDISI
KEDUA to be clearly defamatory.
[142] In EDISI KETIGA, the plaintiff contends that the sting is in the third
paragraph. It questions the ‘maklumat and kajian’ of the defendants in stating
D
that the plaintiff ’s leadership had spent a major portion of the monies in the
benevolent fund ‘untuk kepentingan peribadi mereka’. It states that the monies
in the benevolent fund must be kept in fixed deposit. There is even a direct
allegation of cheating by the NUBE leadership.
E
[143] The court notes that the first defendant had initially denied that she
was alleging that there was misuse of the benevolent fund monies by the
plaintiff. She subsequently claimed that the monies in the fund had to be
placed in fixed deposit. However, she was unable to show any provision in the
F Benevolent Fund Rules which states that the monies had to be kept in fixed
deposit and eventually admitted that there was in fact no such provision in the
said Rules. It would appear that the defendants’ dissatisfaction would stem
from the fact that after they had resigned from the plaintiff, they had put in
applications for a refund of their subscriptions but had received no response.
G
[144] In this context, the court notes that the defendants were unable to
furnish any proof of any misuse of funds from the benevolent fund. They were
also unable to show any provision in the constitution or Rules which state that
upon resignation, a former member would be entitled to a refund of his
H subscription. They were unable to show any provision that states that the
monies in the fund had to be kept in fixed deposit. Their statement as to the
misuse of the fund monies by the plaintif ’s leadership for their own use, which
is a very serious allegation, is totally unsupported by any evidence.
I [145] The court is of the considered view that to allege monetary

misconduct in a union in respect of monies in their benevolent fund, which
should be utilised for the benefit of its workers, is a very serious matter indeed.
Such a suggestion or allegation would be tantamount to suggesting that the
plaintiff is a fox which is tasked with guarding the chicken coop. Such
allegation would have a tendency to lower the esteem of the members as well as A
all right thinking members of society if the plaintiff union cannot even be relied
upon to protect and safeguard its own benevolent fund. In the absence of any
proof of justification by the defendants for the impugned statement, the court
finds that the relevant portion in EDISI KETIGA to be clearly defamatory.
B
THE CONCLUSION
[146] After due consideration of the evidence adduced by both parties, the
court finds that the plaintiff has succeeded in making out its case against the
defendants on a balance of probabilities. The defence of fair comment and C
qualified privilege are clearly not available to the defendants. As for the defence
of justification, they have failed to produce any proof to back up the
defamatory statements and as such, the court finds the defendants have failed
to prove justification.
D
[147] In considering the amount of damages to be awarded in this case, the
court has considered that the defamatory words would have the effect of
damaging the reputation of the plaintiff. This may well have the effect of
causing members to leave the plaintiff and to join MAYNEU. The defamatory
E
words alleging dishonesty, misuse of funds for personal benefit,
non-compliance with the constitution and Rules of the plaintiff can be
considered as extremely serious and damaging for a union which is holding
itself out as representing and taking care of the interests of its union members.
F
[148] As regards damages, the court notes that the offending leaflet was
circulated during the Maybank Annual Games and would have reached a wide
readership. The attendees at the games and at the dinner would predominantly
be people in the banking industry and hence people whom the plaintiff
represents. Such damaging statements circulated amongst this group of people G
would have a tendency to lower the esteem of the plaintiff in their eyes as well
as subject the plaintiff and its Exco to hatred and contempt.
[149] As regards the Facebook webpage with its defamatory comments, the
court is of the view that this is equally serious. In this day of social media H
networking, a comment posted on one’s Facebook page has the ability to reach
a large number of persons in a short space of time. The comments of the first
defendant which are read by her Facebook friends can in turn be read by their
friends, depending on the privacy settings.
I
[150] In deciding on the amount of damages to be awarded in this case, the
court has considered the fact that the defendants were at the material time
attempting to gather support for their fledging MAYNEU in order to gain
recognition from the bank. It cannot be gainsaid that in attempting to garner
A support, the defendants would naturally espouse the strengths and virtues of
MAYNEU. However, there is a need to be cautious so as not to run down the
existing union. There is a need to walk the path of truthfulness and honesty and
to steer away from exaggeration and carelessness for truth in an attempt to gain
support. Negative comments MUST be backed up by solid evidence. This is a
B lesson that the defendants must learn and this lesson does not come cheap.
[151] The court further notes that the defendants have not made any
attempts to apologise to the plaintiff. On the contrary, the Facebook postings
by the first defendant can be seen to be both quarrelsome and challenging in its
C tone, complete with name calling.
[152] The court thus makes the following order:

(a) in respect of Guaman Sivil No S-23NCVC-14 of 2011, a sum of
D RM150,000 to be paid by the first defendant to the plaintiff as damages;
(b) in respect of Guaman Sivil No S-23NCVC-20 of 2011, a sum of
RM100,000 to be paid by the second defendant to the plaintiff as
damages;
E (c) an order restraining the defendants from publishing and/or causing to
issue similar libels in future;
(d) interest at the rate of 4%pa on the judgment sum from the date of filing
the actions until the date of full realisation;
F (e) that the defendants do publish a full and unqualified retraction and
apology in a major daily in terms to be agreed to by the plaintiff ’s
solicitors within 30 days from the date of judgment; and
(f ) costs of RM100,000.
G Plaintiff ’s claim allowed with costs of RM100,000.
Reported by Kohila Nesan

National Union of Bank Employees V Noorzeela

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National Union of Bank Employees v Noorzeela bt Lamin and

[2014] 7 MLJ another suit (Amelia Tee Abdullah J) 31

A National Union of Bank Employees v Noorzeela bt Lamin and

HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NOS S-23-NCVC-14

C Tort — Defamation — Libel — Publication of defamatory statements in leaflet

Held, allowing the plaintiff ’s claim with costs of RM100,000:

[Bahasa Malaysia summary

industri perbankan di Semenanjung Malaysia, telah memulakan dua guaman A

Diputuskan, membenarkan tuntutan plaintif dengan kos RM100,000:

negara. NUBE dengan itu berjaya membuktikan bahawa komen-komen A

Amelia Tee Abdullah J:

[1] The defendants in S-23NCVC-14 of 2011 and S-23NCVC-20 of 2011

THE PLAINTIFF’S CASE

[11] According to PW1, the offending leaflets were distributed between

The first defamatory statement

[12] PW2 testified in detail as to the defamatory statements in the offending

Bonus berdasarkan prestasi kerja telah ditawarkan kepada NUBE semasa

[14] According to PW2, at the conclusion of negotiations, the plaintiff had D

[15] During cross-examination, PW2 was referred to a circular issued by him

The second defamatory statement I

[16] The second defamatory statement which appears at CB, Part B, p 2,

[17] PW1 testified that the second defamatory statement is defamatory

[18] During cross-examination, PW2 admitted that at the election time, he A

A [23] In relation to the issue about ‘membaikpulih Kompleks NUBE di Port

[24] During cross-examination, PW2 was referred to, and admitted

[25] The third defamatory statement appears at CB, Part B, p 2, right-hand

[29] The fourth defamatory statement which appears at CB, Part B, p 3

A … Ketika sambutan terhadap MAYNEU semakin meningkat, ‘kawan-kawan kita’

[31] During cross-examination, PW2 testified that there were ex-union

[37] In his supplementary witness statement, PW2 also referred to six

A COMMITTEE la … YANG ALA2 TANGKAP MUAT TUHH … YG

[47] PW2 admitted that he did not:

THE FIRST DEFENDANT’S CASE

Pada 16/10/2010, pekerja-pekerja perkeranian dan bukan perkeranian di dalam

[52] The first defendant sought to explain why a number of workers of

[54] MAYNEU was registered on 3 January 2011. However the plaintiff is H

[55] The first defendant denied typing, sending, publishing or causing to be

[59] The first defendant was shown an affidavit affirmed by Rajagopal

Q: According to your pleadings, you distributed the leaflets. How do you

A why a non-member of the plaintiff (a driver/despatch) should also attend the

[74] When asked during cross-examination for evidence or proof as to the

C [75] In relation to the statement at p 14 of the bundle of pleadings to the

[77] Apart from sending representatives to the branches to threaten the

[83] During cross-examination, the first defendant was referred to para 6 of I

A comments in her Facebook. However, she admitted to having a Facebook

25 November 2010, 21 November 2010, 20–21 November 2010, A

THE SECOND DEFENDANT’S CASE D

[89] The second defendant, Zayuddin bin Mohamad Yusop, categorically

THE EVALUATION OF THE EVIDENCE AND FINDINGS

H [107] The plaintiff ’s claim against the two defendants is based on

[111] What is a defamatory statement? The answer can be seen in a number

A defamation is an attack upon the moral character of the plaintiff attributing

THE ALLEGED DEFAMATORY COMMENTS ON FACEBOOK

A A party is bound by his pleadings unless he is allowed to amend them, and he is

(d) ‘NUBE tu kesatuan menipu MAYNEU la kesatuan yg telus dan benar

A AHLI MENIDAKKAN SESUATU YG BENAR … SEBABNYA …

17 Defendan menegaskan bahawa berdasrkan fakta yang benar, sebagai Penolong

[129] In light of the admissions of both defendants in relation to the