INTRODUCTION
The Court of Appeal in the recent case of Tan Sing How & Ors v Ng Ze Xuan [2026] MLJU 2283 held that the Court has no jurisdiction to compel a defendant to publish an apology in an action for defamation.
The Court may, in appropriate cases, grant an injunction to restrain a defendant from repeating defamatory statements, or order the withdrawal or correction of an offending statement. However, these orders are different from an order compelling an apology.
The Court of Appeal explained that an apology is an expression of contrition and a matter of volition, and that the Court does not have the power to dictate the content of speech or to supervise the adequacy and sincerity of an apology.
BACKGROUND FACTS
Ng Ze Xuan (“Stella”) was the former General Agent of Kalysta Sdn Bhd (“Kalysta”), a company which markets and sells health supplements.
Tan Sing How (“Chord”) and Lai Phui Khae (“Kay”) were the founders and directors of Kalysta.
Following Stella’s termination as General Agent, Chord, Kay and Kalysta published seven statements over four separate dates between 16.7.2021 and 24.7.2021 (“Impugned Statements”).
Stella contended that the Impugned Statements were defamatory of her reputation. The Impugned Statements alleged that Stella breached Kalysta’s policies, prejudiced its system and culture, and was involved in an online business run by her boyfriend. Stella was also portrayed as having cheated Kalysta of her leadership bonus, wrongly accused other leaders of misconduct, instigated members to leave, and spoken ill of Kalysta’s product, causing losses to others. The attacks later escalated, describing Stella as dishonest, a “compulsive liar”, a “manipulative leader”, and someone no one would want to do business with.
After the trial, the High Court found that the Impugned Statements were defamatory, rejected the defences of justification, qualified privilege and fair comment, and awarded damages totalling RM600,000.00 to Stella.
The High Court also ordered Chord, Kay and Kalysta to render an apology to Stella.
Chord, Kay and Kalysta appealed against the High Court’s decision.
ISSUES BEFORE THE COURT OF APPEAL
The Court of Appeal identified several issues for determination:
(i) whether the defences of justification, qualified privilege and fair comment were rightly rejected by the High Court;
(ii) whether the seven Impugned Statements ought to be treated as a continuous course of defamation;
(iii) whether the assessment of damages should be global rather than segmented; and
(iv) whether the Court has the power to order the publication of an apology.
COURT CANNOT COMPEL AN APOLOGY
The High Court ordered Chord, Kay and Kalysta to render an apology to Stella. The Court of Appeal held that the High Court erred in making that order.
The Court of Appeal observed that the remedies available in a defamation action are damages (general damages, aggravated or exemplary damages) and injunctive relief to restrain further publication. However, there is no recognised relief under the common law empowering the Court to compel a defendant to publish an apology.
The Court of Appeal explained that an apology is an expression of contrition and a matter of volition. Compelling a party to apologise would require the Court to dictate the content of speech and supervise the adequacy and sincerity of that apology, which are matters that lie beyond the proper province of judicial determination.
The Court of Appeal also highlighted the inherent difficulties in granting such relief, because what constitutes a “sufficient” apology may vary from plaintiff to plaintiff, and there would be disputes as to whether the apology tendered complies with the order. Where the defendant is unwilling to apologise, an order for an apology ought not to be granted, as the very spirit of an apology is that it must come from the heart.
An order compelling a withdrawal or correction of an offending statement is of a different character or genre from an order compelling an apology. A withdrawal or correction addresses the offending statement itself and does not require the defendant to express contrition. However, cases where justice requires a mandatory injunction to issue a letter of withdrawal or correction are exceptional.
NO STATUTORY POWER TO COMPEL APOLOGY
There is no provision under the Defamation Act 1957 which empowers the High Court to compel a defendant to render an apology. Under the Defamation Act 1957, the remedies expressly contemplated are confined to damages. The Court held that a Court’s jurisdiction to grant relief must be grounded in recognised heads of remedies, whether statutory, common law or equitable.
Accordingly, the Court of Appeal held that the High Court has no jurisdiction to order the publication of an apology.
ASSESSMENT OF DAMAGES
The Court of Appeal considered whether the seven Impugned Statements should be treated as separate and independent publications attracting separate awards, or as a single continuous course of defamation.
While each publication of a defamatory statement is an actionable wrong and gives rise to a separate and distinct cause of action, the Court held that, in assessing damages, the Court is not bound to proceed on a purely arithmetical or compartmentalised basis.
Where the publications occur within a compressed timeframe, relate to the same underlying allegations and form part of a coherent narrative directed against the same person, the Court may treat them as a continuous course of defamation.
On the facts, the Court of Appeal held that the Impugned Statements reflected a sustained campaign and could be characterised as a single course of conduct or campaign of defamation.
The Court of Appeal therefore reduced the High Court’s award of RM600,000.00 to a single global sum of RM100,000.00, to be paid jointly and severally by Chord, Kay and Kalysta to Stella.
CONCLUSION AND KEY TAKEAWAYS
While a Court may grant an injunction to restrain a defendant from repeating defamatory statements, or order the withdrawal or correction of an offending statement, the Court cannot compel a defendant to publish an apology against his will. An apology must be voluntary, as a forced apology is of little value.
A withdrawal or correction is not the same as an apology. The key distinction is that a withdrawal or correction addresses the offending statement, while an apology requires contrition.
The decision is also a reminder that an award of damages and the Court’s grounds of judgment may serve as public vindication of the plaintiff’s reputation.
Disclaimer: This article is for general information only and does not constitute legal advice or legal opinion. It should not be relied upon as a substitute for specific legal advice. No person should act (or refrain from acting) based on this article without obtaining advice on the specific facts and circumstances. Halim Hong & Quek does not accept responsibility or liability for any loss or damage arising from reliance on this article. Halim Hong & Quek reserves the right to update, amend or withdraw this article at any time. All rights reserved.
Subscribe to DISPUTES DECODED BY HHQ, our bi-monthly legal update, at https://mailchi.mp/hhq/2nofd6rjlt to receive our latest legal updates and articles. You may also visit the HHQ website at https://hhq.com.my/insights/ for further articles and insights from our team.
About the authors
Chew Jin Heng
Principal Associate
Dispute Resolution
Halim Hong & Quek
jhchew@hhq.com.my
