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Tong obtains prohibitory injunction against British author, court to assess damages

Hafiz Yatim
Hafiz Yatim • 5 min read
Tong obtains prohibitory injunction against British author, court to assess damages
Daim Zainuddin. Photo: The Edge Markets
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Former banker Tan Sri Tong Kooi Ong has successfully obtained a prohibitory injunction against British author Michael Backman from repeating defamatory posts in his book Daim Zainuddin: Malaysia’s Revolutionary and Troubleshooter.

In a hearing on March 21 at the Kuala Lumpur High Court, Judicial Commissioner Roz Mawar Rozain declared judgment in default for Tong following Backman’s non-appearance in court. She also fixed June 6 for the court to assess damages over the publication.

On Feb 24 this year, Tong, through his solicitors Messrs Kanesalingam & Co, had also filed an application for an injunction requiring the author, his servants or agents to publish a copy of the judgment and to issue a correction. The injunctive relief also sought for the publisher and distributor to include the judgment and correction to be inserted in the remaining unsold copies of the book.

Subsequently, Tong did not pursue the injunction compelling publication of a correction, but only sought an injunction against Backman from repeating such defamatory posts in his book.

In granting the injunction, Roz Mawar also granted damages to be assessed.

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Court documents, including the notice of application sighted by The Edge, revealed that Backman had been served with the sealed copies of the writ, notice of writ out of jurisdiction and statement of claim by courier and email last December.

Yet, the author failed to enter an appearance. He also failed to file a defence against the lawsuit.

“Hence, the facts in the plaintiff’s [Tong’s] statement of claim dated last September are deemed to have been proved against the defendant. As such, the plaintiff is entitled to obtain a judgment in default and judgment in terms,” Tong’s lawyers stated in the notice of application dated Feb 24.

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Tong filed suit against Backman over the publication of the 2018 book — perceived to be a hagiographic biography of Daim, the country’s former finance minister. The book is published by the author’s Thai publisher.

Basis for the lawsuit

Tong was founder, substantial shareholder and CEO of the PhileoAllied group of companies, including PhileoAllied Bank, of which it was the holding company until May 31, 2000.

PhileoAllied Bank was sold to Malayan Banking that year in what was regarded as a forced merger of Malaysian banks after Bank Negara Malaysia identified several banks as anchors to take over a number of smaller banks, including PhileoAllied Bank.

In his book, Backman wrote that PhileoAllied Bank was not considered to be designated as an anchor bank, but was instead forced to be merged because it was under investigation for possible breaches of legal lending limits to a single customer. Backman also wrote that despite speculation that banks with owners perceived to be close to then former finance minister Anwar Ibrahim were not selected as anchor banks because of those links, what was forgotten (in the case of PhileoAllied Bank) was that it was under investigation at that time for lending breaches.

Anwar rose to be Malaysia’s 10th prime minister last November.

In his suit, Tong said those words in their natural and ordinary meaning or by innuendo meant that his management of the PhileoAllied group and, by extension PhileoAllied Bank, had caused the bank to be under investigation for transgressions serious enough to warrant the bank being excluded from consideration as an anchor bank.

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Tong further claimed that Backman ought to have known that the words were wholly untrue insofar as the reasons given by him for PhileoAllied Bank’s exclusion from consideration as an anchor bank.

He pointed out that Backman should have known that the then-second finance minister, Mustapa Mohamed, had been quoted in a Business Times Malaysia article to have said that the investigation into PhileoAllied Bank was a normal procedure carried out by the central bank to monitor the banking sector.

“Yet, Backman chose to sensationalise the investigation into PhileoAllied Bank by implausibly citing that the investigation was the reason for the bank’s exclusion from consideration as an anchor bank. Numerous published studies exist, which show that the reasons attributed by Backman for PhileoAllied Bank’s exclusion were not true and not at all justified in all the circumstances,” Tong added in his statement of claim.

He said the author failed to consider or clarify the said impugned words by including the fact that in terms of financial indicators or suitability in being an anchor bank, PhileoAllied Bank was ranked much higher than some of the banks eventually selected to be anchor banks.

Tong further said Backman did not contact him or his representatives before publishing the impugned words or seek his comments for his version of the events. He said Backman had recklessly or maliciously published the impugned words in a manner calculated to injure him and to cause him to suffer damage in his business.

The former banker is currently executive chairman of Avarga, a public company listed on the mainboard of the Singapore Exchange, and chairman of The Edge Media Group.

Tong further claimed that Backman ought to have known the offending words were false and yet he chose to publish them to embellish and exaggerate the reputation of Daim at the expense of him (Tong). He further alleged that the words were published in a sensationalised manner with a view to gain pecuniary advantage in increasing book sales.

“A letter of demand dated July 21, 2022, was sent, seeking Backman to apologise over the matter. But the author, in an email dated July 28 this year, refused to issue an apology,” he added.

Tong claimed that his personal and business reputation had been seriously damaged and he had been injured in his character, credit and reputation among the public. Hence, apart from the injunction, he was seeking damages for libel or malicious falsehood, including aggravated and exemplary damages.

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