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1. SYNERGISTIC DUO SDN BHD v. LAI MEI JUAN [2017] 9 CLJ 244 A
2. LING WAH PRESS (M) SDN BHD & ORS v. TAN SRI DATO' VINCENT B
TAN CHEE YIOUN & OTHER APPEALS
5. ROSLAN ALI v. THE NEW STRAITS TIMES (M) BHD & ANOR [2017] 1 E
LNS 1356
11. MOHD IQBAL ZAINAL ABIDIN lwn. MOHD KHAIDIR AHMAD [2017] 1 K
LNS 1319
A Bhd’, the plaintiff did not have a cause of action against the defendant. The
defendant pleaded the defence of justification and/or fair comments, arguing
that the postings were a matter of a public interest to ensure that others were
not deceived by the restaurant’s advertisements. The issues that arose for the
court’s adjudication were: (i) whether the plaintiff had the locus standi to bring
B the action against the defendant; (ii) whether the impugned statements in the
postings had a tendency to have defamatory meaning; (iii) whether the
defendant’s defence of justification and/or fair comments was prima facie
likely to succeed at trial; and (iv) whether there was evidence of intention
to publish the impugned statements pending trial and whether an injunction
C
ought to be granted to restrain the defendant from continuing to publish the
postings.
Held (allowing application):
(1) The official Companies Commission of Malaysia search results showed
that the plaintiff and the restaurant were related companies as both
D companies shared common directors and all the shares in the restaurant
were held by the plaintiff’s directors. Therefore, the plaintiff was the
operator of the restaurant and accordingly, owned the reputation and
goodwill of the restaurant. The doctrine of privity of contract did not
apply in this case as the plaintiff’s cause of action against the defendant
E was for the tort of defamation; not for breach of contract. The
defendant’s preliminary objection was not allowed. (paras 32, 34 & 37)
(2) The defendant’s statement in the postings were defamatory of the
plaintiff. An ordinary person’s understanding of the postings would be
that: (i) many customers were disappointed with the food and service at
F the restaurant; (ii) the defendant was cheated by the plaintiff; and (ii) if
the ordinary and reasonable person dined at the restaurant, he or she
would be subjected to bad food and bad service and would be cheated
by the plaintiff. Any reasonable person reading the postings would
understand them in defamatory sense. (paras 45-47)
G
(3) The defendant failed to adduce any evidence to support her contention
of the events that transpired in the postings. The defendant failed to
establish that her defence of justification on balance of probabilities was
true or substantially true. In addition to that, the defendant did not
provide any evidence to show that her comments at the time of
H publishing the postings were made based on true facts and without
malice. The defendant’s defence of justification and/or fair comment
was, prima facie, unlikely to succeed. (paras 58, 65, 66, 67 & 73).
I
246 Current Law Journal [2017] 9 CLJ
I
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 247
A JUDGMENT
Faizah Jamaludin JC:
Introduction
[1] The plaintiff had filed an ex parte application dated 23 January 2017
B (encl. 5) together with a certificate of urgency seeking an order of interim
injunction to restrain the defendant whether by herself, her servants, agents
or otherwise, howsoever, from publishing or causing to be published in her
Facebook account, posting 1 and posting 2 or similar words which the
plaintiff pleads are defamatory of the plaintiff, in any manner whatsoever
C until the hearing and final disposal of this suit.
[2] On 31 January 2017, John Louis O’Hara J issued an ad interim
injunction (“ad interim injunction”) pending the inter partes hearing of the
plaintiff’s application for an interim injunction, which ordered as below:
D
MAKA ADALAH DIPERINTAHKAN BAHAWA:
Satu Perintah Injunksi Ad Interim untuk menghalang defendan Lai Mei
Juan sama ada melalui diri sendiri, pengkhidmat-pengkhidmatnya, ejen-
ejennya atau bagaimana juapun daripada menerbitkan atau
mengakibatkan penerbitan Pernyataan Fitnah 1 dan Pernyataan Fitnah 2
(sepertimana Lampiran “A”) atau perkataan-perkataan sama yang
E menfitnah plaintiff, dalam apa-apa cara sekalipun sehingga perbicaraan
dan pelupusan muktamad Lampiran 5 secara inter partes.
[3] The plaintiff had served, by way of personal service, the ad interim
injunction on the defendant on 6 February 2017.
F [4] On 25 April 2017 this court heard the plaintiff’s application inter partes
and after reading the written submissions and hearing the oral submissions
of counsel for the plaintiff and the defendant, I reserved judgment to today.
Salient Facts
[5] The plaintiff is a private limited company with its registered address
G
at 31A, Jalan Satu, Kawasan 16, Berkeley Town Centre, 41300 Klang,
Selangor and business address at C-06-1, C-06-2 and C-06-3, Block C, Plaza
Kelana Jaya, Jalan SS 7/13A, Kelana Jaya, 47301 Petaling Jaya, Selangor.
[6] The defendant is an individual and uses the name “Lai Mei Juan” on
H her Facebook account.
[7] On 22 December 2016, the defendant’s husband, Jerry Ong, made a
booking at a restaurant known as “BGT Lakeview Restaurant” in SS 7,
Kelana Jaya (“the restaurant”) and paid a booking fee of RM105.20 to BGT
Lakeview Sdn Bhd. The booking was confirmed for two people at 8pm to
I be seated at table no. B17.
248 Current Law Journal [2017] 9 CLJ
[8] On 25 December 2016, the defendant and her husband attended the A
restaurant but neither of them dined or ate at the restaurant.
[9] On or around 25 December 2016, the defendant published or caused
to be published posting 1 in her Facebook account. Posting 1 contained
edited photographs of the restaurant and the following words:
B
(a) “Kalian jangan di tipu oleh Kelana Jaya SS7 BGT Lake View lagi.”
(b) “Tetapi masih juga ada kawan internet yang lain amat marah dan
beritahu saya mereka terpaksa tunggu dengan begitu lama baru di
hidang makanan, makanan juga sangat tak sedap, berbeza dari H
gambar, mereka amat kecewa.”
(c) “Fikirlah, makan malam RM210 untuk 2 orang. Bukan murah
sangat. Harga ini dan di atur duduk di tempat begitu. Memanglah
(emoji). Cara perkhimatan teruk sangat.”
(d) “Ini merupakan perbualan saya dengan beliau. I
Saya: Saya telah tempah meja. Dah bayar jumlah yang sama dengan
orang yang duduk di sana, kenapa tempat duduk kami tak sama?
Juga tidak sama dengan gambar.
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 249
A
J: Ada datang untuk makan saja! Nak yang cantik, pergilah Ikea
beli!
Saya: Ini tidak sama langsung dengan iklan anda, saya rasa anda
tipu kami. Kalaulah ramai pelanggan sangat, tidak dapat
duduk yang sama, haruslah beritahu kami terlebih dahulu
B semasa kami buat tempahan.
J: Apa yang tak sama? Tasik masih ada! Kan anda kata iklan!
Adakah ayam KFC yang anda makan sama dengan iklan?!
Saya: Sekarang anda menipu. Saya nak balik wang deposit saya.
C J: Tidak boleh! Kami tidak boleh kembalikan. Sudah tulis atas
nota tempahan.”
(e) “Tetapi saya tidak mahu orang lain tertipu pada masa akan datang,
dan meraikan hari perayaan dengan muram. Terutamanya kita
semua ingin makan riang. Seperti pada hari perayaan yang begitu
D penting hari Natal, hari Kekasih dan lain-lain.”
[11] Posting 2 went viral1. It was shared more than 9,500 times on
facebook and was reposted and published in newspapers, websites, blogs and
other Facebook pages including Guang Ming Daily, Huarenwang
E [www.huarenpost.blogspot.com] and Damatoutiao [damatoutiao.com]
(where it was shared about 18,000 times). Posting 2 and the re-postings are
currently still accessible to the public at large.
[12] The plaintiff had on 29 December 2016, through their solicitors,
issued a notice of demand to the defendant demanding, inter alia, that the
F defendant:
(i) immediately cease and desist from further defaming the plaintiff;
(ii) immediately remove the defamatory statements and photographs of the
plaintiff from the posting;
G (iii) publish and display a full and complete notice of withdrawal and
apology;
(iv) give an assurance and undertaking in writing that the defendant will not
repeat the publication of the defamatory statement or similar allegations
against the plaintiff; and
H
(v) compensate the plaintiff by way of damages.
[13] The defendant replied the plaintiff, through her solicitor’s letter dated
24 January 2017, stating that she would be relying on the defence of
justification and fair comment.
I
250 Current Law Journal [2017] 9 CLJ
[14] The defendant has not complied with the ad interim injunction and A
continued to publish or caused to be published posting 1 and posting 2 to
date.
Plaintiff’s Case
[15] The plaintiff pleads that at all material times, it is the operator of the B
restaurant. For the reasons pleaded in the statement of claim, the plaintiff
claims that it has acquired an excellent reputation and valuable goodwill in
the restaurant and food and beverage industry since 2007 and that it has more
than 31,900 followers in its Facebook account at the date of the writ of
summons in this suit.
C
[16] The plaintiff pleads that posting 1 and posting 2 are manifestly
defamatory and that in their natural and ordinary meaning and/or in the
alternative, by way of innuendo, meant and/or were understood to mean
that:
(i) the plaintiff was dishonest and/or untrustworthy; D
(ii) the plaintiff has cheated its customers and/or committed a criminal
offence;
(iii) the plaintiff’s restaurant was terrible;
E
(iv) the plaintiff’s food was bad/terrible; and
(v) the plaintiff’s service was terrible.
[17] The plaintiff avers that because of the defendant’s act in publishing
posting 1 and posting 2, many of the plaintiff’s customers cancelled their
bookings and reservations at the plaintiff’s restaurant. It claims that the F
nature of the damage caused by the defendant’s postings in posting 1 and
posting 2 is so severe that damages would not be an adequate remedy.
[18] The plaintiff submits that if the defendant is not restrained by way of
an interim injunction, the plaintiff would continue to suffer grave irreparable
G
loss and damage to its reputation and goodwill.
Defendant’s Case
[19] The defendant raises a preliminary objection that the plaintiff is not an
aggrieved party and thus does not have locus standi to bring this action against
the defendant. The defendant pleads that her husband had paid the booking H
fee of RM105.20 to a bank account in the name of “BGT Lakeview Sdn.
Bhd.” and not the plaintiff. The defendant submits as the defendant had
entered into a contract with “BGT Lakeview Sdn. Bhd.”, it is “BGT
Lakeview Sdn. Bhd.” and not the plaintiff that has a cause of action against
the defendant. The defendant cites the case of Suwiri Sdn Bhd v. Government I
of The State of Sabah [2008] 1 CLJ 123; [2008] 1 MLJ 743 as authority for
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 251
G
Jerry: Hi and good evening Mr. Teh, what seems to be on your
mind sir. It has been a real eye opener as your customer to
receive such overwhelming services from your professional
colleague. Don’t mean to be rude but it was really shocking
to hear phrases such go buy your own furniture from Ikea
if you are not happy with what we provide. Please kindly
H advise your opinion as a restaurant owner and also a
consumer. Thanks.
[23] It is not disputed that Mr Teh is Teh Chuan Khoon who is one of the
plaintiff’s directors. He is also a director and shareholder of BGT Lakeview
I
Sdn Bhd.
252 Current Law Journal [2017] 9 CLJ
[24] The defendant posted the WhatsApp message from Mr Teh on her A
Facebook page. She pleads that the message shows the restaurant’s admission
that what happened to the defendant and her husband on “25 December
2017” is true (Note: the date of “25 December 2017” is incorrect and I have
made the same assumption as stated in para. [22] above). The defendant’s
claim is denied by the plaintiff who pleads that Mr Teh in the WhatsApp B
message had apologised for the seating arrangement and wanted to privately
settle any dissatisfaction that Jerry Ong has in relation to the seating
arrangement.
[25] The defendant avers that the 3,600 comments she received after
publishing posting 2 on Facebook supports her statement. C
[26] The defendant pleads that posting 1 and posting 2 are fair comments
on a matter of public interest: they were published to ensure that others were
not deceived by the restaurant’s advertisements and that the public as
consumers have the interest and/or right to know the truth about the quality
of the restaurant’s service4. D
[27] She pleads that the 3,600 comments she received after publishing
posting 2 on Facebook supports the defence of fair comment as the other
readers also faced the same issues as the defendant.
Analysis E
A plaintiff and BGT Lakeview Sdn Bhd have the same directors (ie, Teh Chuan
Khoon and Yiap Shed Li) and that both directors are the shareholders of
BGT Lakeview Sdn Bhd.
[31] The plaintiff avers that all the booking deposits for the restaurant are
paid into the account of BGT Lakeview Sdn Bhd for accounting reasons. The
B plaintiff claims that as it is subject to goods and services tax (“GST”), if
booking deposits are paid directly into the plaintiff’s account, their customers
would be subject to a double tax charge: first, when they pay the booking
deposit and second, when they pay the balance of the invoice after the meal.
This is because the plaintiff has a “point of sales” system at the restaurant,
C which can only capture the current payment and not the deposit paid earlier.
[32] The SSM searches show the plaintiff and BGT Lakeview Sdn Bhd are
related companies as both companies share common directors and all the
shares in BGT Lakeview Sdn Bhd are held by the plaintiff’s directors. For
this reason, I am satisfied based on the evidence before me that the plaintiff
D is the operator of the restaurant and accordingly, owns the reputation and
goodwill of the restaurant. I also find that the statements in posting 1 and
posting 2 refers to the plaintiff.
[33] The defendant argues that as her husband had paid the deposit to
“BGT Lakeview Sdn. Bhd.” the contract is between “BGT Lakeview Sdn.
E
Bhd.” and not the plaintiff. Therefore, she argues it is “BGT Lakeview Sdn.
Bhd.” that has a cause of action against the defendant
[34] The defendant’s preliminary objection is premised on the legal
principle that under the doctrine of privity of contract, a third party does not
F have any rights and obligations under a contract. However, in this case, the
plaintiff’s cause of action against the defendant is for the tort of defamation.
It is not for breach of contract. Therefore, the doctrine of privity of contract
does not apply to this action.
[35] It is trite law that in an action for defamation, the onus lies on the
G plaintiff to establish, on the balance of probabilities, that the impugned
statement published referred to the plaintiff and that it had defamatory
imputations. There must be publication of the alleged defamatory statement
and it is publication as soon as it is published to a third person: see Ayob Saud
v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 MLJ 315.)
H [36] The defendant admits that she had published both posting 1 and
posting 2 on her Facebook account. It is not disputed that the postings were
published to third persons. For the reasons set out in paras. [29] to [32]
above, I find that the impugned statements refer to the plaintiff.
I
254 Current Law Journal [2017] 9 CLJ
I
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 255
(2) the judgment of Helilah Yusof J (as she then was) in Wong Yoke Kong A
& Ors v. Azmi M Anshar & Ors [2003] 6 CLJ 559; [2003] 4 MLJ 96 where
she held that:
There are therefore two steps involved in deciding whether or not
the alleged offensive sentence is defamatory or not. The first is to
consider what meaning the words would convey to the ordinary B
person. Having established the meaning the next stage is whether
under the circumstances in which the words were published, the
reasonable person would be likely to understand them in a
defamatory sense. The abstraction or measuring stick of an
ordinary man is but a measure to strike a balance between freedom
of speech and the safeguard of reputation.10 C
…
An imputation is defamatory if it tends to lower a person in the
estimation of others when it affects any aspect of his reputation.11
[45] Applying the two-step test in Wong Yoke Kong to this case, I find that D
an ordinary person’s understanding of posting 1 and posting 2 would be that:
(i) many customers are disappointed with the food and service at the
restaurant;
(ii) the defendant was cheated by the plaintiff; and E
(iii) if the ordinary and reasonable person dined at the plaintiff’s restaurant
he/she would be subjected to bad food and bad service and would be
cheated by the plaintiff.
[46] In my view, any reasonable person reading the posting 1 in the
F
defendant’s Facebook page and posting 2 in the newspapers, websites, blogs
and Facebook pages in which the posting was published and re-published,
would understand them in the defamatory sense. It can be reasonably
inferred from the comments which the defendant says she had received after
publishing posting 2 (some of which are exhibited as exh. “F” in her affidavit
in reply dated 17 February 2017) shows that those who had read posting 2 G
understood the posting in the defamatory sense.
[47] After having considered the natural and ordinary meaning of the
impugned words used and having regards to what meaning and understanding
they would convey to the ordinary and reasonable person, this court finds
H
that the defendant’s statement in posting 1 and posting 2 are defamatory of
the plaintiff.
I
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 257
[51] In this present case, the defendant pleads that the statements in posting A
1 were based on the defendant’s and her husband’s experience at the
restaurant. The plaintiff denies the defendant’s claim and pleads that the
person named Joyce in posting 1 had explained to the defendant that all the
tables are booked and they had to wait if they wanted another table. Yiap
Shed Li in the plaintiff’s affidavit in reply, averred that she is known as B
“Joyce” and that she denies the defendant’s allegations.
[52] Apart from the defendant’s averment in her affidavit in reply that the
statements in posting 1 is based on her and her husband’s experience at the
restaurant and her conversation with a person named “Joyce”, which
averment is denied by Yiap Shed Li (a.k.a. Joyce) in her affidavit, the C
defendant did not adduce any evidence to substantiate the truth of her
allegation.
[53] It is not disputed that the statements in posting 2 are substantially the
same as the comments in posting 1 except for the additional statements:
D
(a) “Kalian jangan di tipu oleh Kelana Jaya SS7 BGT Lake View lagi.”
(b) “Tetapi masih juga ada kawan internet yang lain amat marah dan
beritahu saya mereka terpaksa tunggu dengan begitu lama baru di
hiding makanan, makanan juga sangat tak sedap, berbeza dari
gambar, mereka amat kecewa.”
E
(c) “Fikirlah, makan malam RM210 untuk 2 orang. Bukan murah
sangat. Harga ini dan di atur duduk di tempat begitu. Memanglah
(emoji). Cara perkhimatan teruk sangat.”
[54] It is the defendant’s case that posting 2 was based on comments from
other internet users who claim that they were customers of the restaurant and F
not from her actual experience of eating the food and dining at the restaurant.
The defendant averred that posting 2 is true and that it is substantiated from
3,600 comments after she had published posting 2. The defendant included
copies of some of the comments she received in exh. F of her affidavit in
reply. G
[55] It is not disputed that at all material times, the defendant and her
husband neither dined nor ate any food at the restaurant. The defendant
admitted in her affidavit in reply that after the alleged encounter with Joyce
at the restaurant, the defendant and her husband were no longer interested
in having dinner at the restaurant. H
[50] The law on the defence of fair comment is that if a defendant can A
prove that the defamatory statement is an expression of opinion on a
matter of public interest and not a statement of fact, he or she can rely
on the defence of fair comment. The courts have said that whenever a
matter is such as to affect people at large, so that they may be legitimately
interested in, or concerned at, what is going on or what may happen to
them or to others, then it is a matter of public interest on which everyone B
is entitled to make fair comment.
[51] The comment must be based on true facts which are either contained
in the publication or are sufficiently referred to. It is for the defendant to prove
that the underlying facts are true. If he or she is unable to do so, then the defence
will fail. As with justification, the defendant does not to have to prove the C
truth of every fact provided the comment was fair in relation to those facts
which are proved. However, fair in this context, does not mean reasonable, but
rather, it signifies the absence of malice. The views expressed can be
exaggerated, obstinate or prejudiced, provided they are honestly held. If
the claimant can show that the publication was made maliciously, the
defence of fair comment will not succeed. D
(emphasis added)
[62] The task of determining what is fact and what is comment is not easy,
as alluded by Lord Ackner in the case of Telnikoff v. Matusevitch [1991] 4 All
ER 817 HL where he said: E
However, the fundamental question which remains is whether the words
complained of in that letter were capable of being understood as a
statement or statements of fact, since if they were, they were defamatory,
there being no attempt to justify them. It is common ground that it is for
the judge alone to decide whether the words complained of are capable
of being a statement of a fact or facts and whether his ruling is right or F
wrong is a matter of law for the decision of an appellate tribunal. Drake
J decided that the words were not so capable and his decision was upheld
by the Court of Appeal. It is not always easy to draw the distinction
between an expression of an opinion and an assertion of fact. The very
same words may be one or the other according to their context. This point
G
is cogently made in Winfield and Jolowicz on Tort 11th ed., (1979) where this
example is provided:
To say that ‘A is a disgrace to human nature’ is an allegation of
fact, but if the words were ‘A murdered his father and is therefore
a disgrace to human nature’ the latter words are plainly a comment
on the former. H
A [63] To succeed in a defence of fair comment, the defendant must prove all
the following elements on a balance of probabilities:
(i) that the postings were comments not statement of facts;
(ii) the comments were made as a matter of public interest;
B (iii) the comments were based on true or substantially true facts; and
(iv) the comments were made without malice.
[64] In my view the question of whether the postings are a statement of fact
or comment and whether they were made as a matter of public interest, are
C matters that are better decided after hearing all the parties at trial rather than
based on affidavits. Accordingly, for purposes of determining prima facie the
likelihood of success of the defendant’s defence of fair comment, I have
tipped the scale towards the defendant’s freedom of speech and made the
assumptions that (1) the impugned statements are fair comments; and (2) they
D were made as a matter of public interest. Based on these assumptions and the
facts before me, I have to determine whether the defendant has discharged
her burden of proof as regards the two other elements required for a defence
of fair comment to succeed, namely that (3) the comments were based on true
facts; and (4) they made without malice.
E [65] It is the defendant’s case that the 3,600 comments she received after
publishing posting 2 on Facebook supports her defence of fair comment. She
has not provided any evidence to show that her comments at the time of
publishing the postings were made based on true facts.
[66] In my view, the following expletives in posting 1:
F
“I can only pray for ur business going to hell!! Fxxk ur!”
“BAN BGT Lake View!”
would make it difficult for any objective and reasonable person to agree with
the defendant’s averment that the impugned statements were fair comments
G and made without malice. She has not provided any evidence to prove that
they were made without malice.
[67] Therefore, notwithstanding my assumption that posting 1 and posting
2 are comments made in the public interest, I find that defendant’s defence
of fair comment is prima facie unlikely to succeed. This is because the
H
defendant has failed to prove that the postings were based on true or
substantially true facts and that they were made without malice.
I
262 Current Law Journal [2017] 9 CLJ
(3) Any person who has in his custody or control any computer on
which any publication originates from is presumed to have published
or re-published the content of the publication unless the contrary is
proved.
E
(4) For the purpose of this section:
(a) “network service” and “network service provider” have the
meaning assigned to them in section 6 of the Communications
and Multimedia Act 1998; and
(b) “publication” means a statement or a representation, whether in F
written, printed, pictorial, film, graphical, acoustic or other form
displayed on the screen of a computer.”
[69] It is not disputed that the defendant continues to publish posting 1 and
posting 2 on her Facebook account, notwithstanding the ad interim injunction
ordered by this court restraining her from publishing or causing to publish G
posting 1 and posting 2. She has failed and/or refused to comply with the
ad interim injunction. There is currently an application by the plaintiff before
this court (encl. 18)13 for leave to commence an application for a committal
order against the defendant for failing and/or refusing to comply with the
ad interim injunction.
H
[70] Moreover, based on the presumption of fact under s. 114A of the
Evidence Act she is presumed to continue publishing posting 1 and posting
2 unless she proves the contrary.
[71] This court finds that the defendant’s failure and/or refusal to comply
with the ad interim injunction to date is evidence that she will continue to I
publish or cause to be published posting 1 and posting 2 until trial.
[2017] 9 CLJ Synergistic Duo Sdn Bhd v. Lai Mei Juan 263
A Decision
[72] For the reasons stated above, I find that the defendant’s statements in
posting 1 and posting 2 to be defamatory. I also find that the continued
publication of posting 1 and posting 2 on the defendant’s Facebook would
cause the plaintiff’s to suffer further damage to their reputation and goodwill
B as the potential re-publication of the postings to potentially unlimited
number of internet users would irreparably harm the plaintiff’s reputation:
which harm cannot be adequately compensated with damages.
[73] I have taken cognizance of the caution expressed by the Supreme
Court in The New Straits Times Press (M) Bhd v. Airasia Bhd that this court
C
should exercise its discretion judicially and should balance the freedom of
speech which is related to the freedom of the press against the reputation of
the plaintiff. Based on the affidavits before me and for the reasons set-out
above, I find that prima facie the defendant’s defence of justification and fair
comment is unlikely to succeed. In order to successfully prove justification
D and fair comment, the defendant would need to adduce evidence at trial to
support her plea that the impugned statements are based on true facts and
were made without malice. Furthermore, unlike the defendant in the The
New Straits Times Press (M) Bhd v. Airasia Bhd, the defendant is not the press
but a member of the public with a Facebook account. Her publications in her
E Facebook account are not subject to the same fact-checking and editorial
process as that of a newspaper. Also, her Facebook posting, unlike an article
published in a printed newspaper like The New Straits Times, can reach any
person worldwide who visits her Facebook page. As the learned Judicial
Commissioners observed in the PETRONAS case, the internet is a
F “borderless unrestricted environment”. The damage that her continued
publication of posting 1 and posting 2 can cause irreparable damage to the
plaintiff’s reputation which cannot be adequately compensated with
damages. I have also taken account the fact that any interim injunction
restraining her from publishing posting 1 and posting 2 on her Facebook
would not restrain her from publishing other postings on her Facebook
G
account. Also, as the plaintiff is a company with a paid-up capital of
RM500,000, I am satisfied that the plaintiff would be able to honour its
undertaking of damages for any damages suffered by the defendant due to any
interim injunction granted against her, in the event she succeeds in proving
the defence of justification or fair comment at trial.
H
Order
[74] Accordingly, after weighing all the facts before me and balancing the
defendant’s freedom of speech and the continuing damage to the plaintiff’s
reputation with the continued publication of posting 1 and posting 2 on the
I defendant’s Facebook, I hereby grant an interim injunction effective
264 Current Law Journal [2017] 9 CLJ
I
B
728 Current Law Journal [2000] 3 CLJ
i
730 Current Law Journal [2000] 3 CLJ
For the 1st appellant - Apparao Apana; M/s KC Yap Kamaluddin & Partners
For the 2nd appellant - Karpal Singh (Jagdeep Singh Deo & Gobind Singh Deo with c
him); M/s Karpal Singh & Co
For the 3rd & 4th appellants - Shamsul Bahrain; M/s Skrine & Co
For the respondent - VK Lingam (Adam Bachek & W Satchithnandhan with him);
M/s Adam Bachek & Assoc
JUDGMENT
Eusoff Chin CJ:
These three appeals were with consent of parties, set down for hearing e
together. At the outset counsel for appellant Ling Wah Press Sdn. Bhd.
informed the court that he had received no instruction to proceed, and as no
one from Ling Wah Press was present in court, the appeal was struck out with
costs.
Encik Karpal Singh for 1st appellant (Encik M.G.G. Pillai) drew the attention f
of the court to a newspaper cutting where the Chief Justice when interviewed
by the press two years earlier on 24 October 1996 had expressed his views
that in libel cases persons of higher status would receive higher damages than
those of lower status. He asked whether in view of that expression, the Chief
Justice should disqualify himself from hearing these appeals. Both the Chief g
Judges on the panel, however, felt that each case must be dealt with on its
merits and that this was no good reason to disqualify a judge from hearing a
case. Otherwise, a judge who has expressed his opinion on an issue in an
earlier decision would not be able to hear a case involving the same issue
later on. Encik Karpal Singh withdrew his objection. h
The Bar Council sent three of its members, Tuan Hj. Sulaiman Abdullah, Encik
Mah Weng Kwai and Puan Anita Sockalingam to watch brief on the issue of
quantum. The court allowed them to do so, as indeed the court is an open
court and anyone can come in and go provided he does not disturb the court’s
proceedings. i
732 Current Law Journal [2000] 3 CLJ
a The facts of the case have been clearly set out both by the High Court and
the Court of Appeal in their judgments which have been reported in 1995, 1
MLJ 39, and 1995, 2 MLJ 493 respectively, and we need not repeat them
here.
The High Court had awarded RM2 million against the first appellant as general
b
and aggravated damages; RM3 million as general damages against the second
appellant, Encik Hassan bin Hj. Hamzah; and RM2 million as general damages
against the third appellant, Media Printex (M) Sdn. Bhd.
The Court of Appeal had upheld the awards made by the High Court.
c
These appeals are mainly against quantum of damages awarded. The appellants
argued that they are excessive, and ought to be reduced.
It is well settled that the principle upon which an appellate court will interfere
with an award of damages by a trial judge, has been laid to rest in Davies v.
d Powell Duffryn Associated Colleries Ltd. [1942] AC 601, which was followed
by Dingle v. Associated Newspapers Ltd. and Ors [1964] AC 371, and that
is, the appellant must show that the trial judge had acted on a wrong principle
of law or has misapprehended the facts or has made a wholly erroneous
estimate of the damage suffered. See also Mahmood bin Kailan v. Goh Seng
e Choon & Anor. [1976] 2 MLJ 239 at 240.
Lord Wright in Davies v. Powell Duffryn Associated Colleries Ltd had stated
as follows:
Where, however, the award is that of the judge alone, the appeal is by way
f of rehearing on damages as on all other issues, but as there is generally so
much room for individual choice so that the assessment of damages is more
like an exercise of discretion than any ordinary act of decision, the appellate
court is particularly slow to reverse the trial judge on a question of the amount
of damages. It is difficult to lay down any precise rule which will cover all
cases, but a good general guide is given by Greer LJ in Flint v. Lovell. In
g effect the court, before it interferes with an award of damages, should be
satisfied that the judge has acted on a wrong principle of law, or has
misapprehended the facts, or has for these or other reasons made a wholly
erroneous estimate of the damage suffered. It is not enough that there is a
balance of opinion or preference. The scale must go down heavily against the
figure attacked if the appellate court is to interfere whether on the ground of
h excess or insufficiency.
We are not in the same position as the judge at the trial for assessing damages a
for defamation. He has an opportunity denied to us of judging the true character
of the plaintiff whose sensibility, refinement and feelings of honour are, where
they exist, of no little importance when he is held up to public obloquy and
infamy. So far as the conduct of the trial forms an aid in estimating the degree
of impropriety involved in the publication complained of, the trial judge has
peculiar advantages. The question what amount awarded to the victim of a b
public outrage is enough to serve at once as a solatium, vindication and
compensation to him and a requital to the wrongdoer can only be solved by
an exercise of a discretionary judgment, and a court of appeal should not, in
my opinion, interfere and review the sum fixed unless it is able to infer from
the amount adopted by the trial judge, or otherwise, that in some way his
c
discretion must have miscarried.
The assessment of damages is the province of the trial judge, and an appellate
court is not entitled to substitute its own judgment merely because it would
have arrived at a different figure. Unless the verdict is so outrageously
exorbitant, or shockingly excessive in relation to the libel, or manifestly d
unreasonable, unjust or irrational, the appellate courts should proceed with
caution before making any variation in assessment of damages in libel cases.
Learned counsel for the first appellant submitted that the award of RM2
million was excessive compared with awards given in other defamation cases.
He said in Singapore, the highest award given in a defamation case was e
S$400,000. In the case of Dato’ Musa bin Hitam v. S.H. Alattas & 2 Ors.
[1991] 1 CLJ 314, the High Court awarded RM100,000 as damages. In the
case of Dato’ Patinggi Abdul Rahman Ya’akub v. Abang Mohammad bin
Abang Anding [1979] 2 MLJ 185, the plaintiff was awarded RM25,000.
f
We find that we cannot compare a particular libel case with other libel cases.
Each libel case has its own particular and peculiar facts, is unique and a class
by itself. We cannot by our judgment set a precedent on the damages to be
awarded. The court must consider a number of factors when assessing damages
in a libel case. In John v. MGN Ltd [1997] QB 586 at 607, Sir Thomas
g
Bingham MR (now CJ) said:
In assessing the appropriate damages for injury to reputation the most important
factor is the gravity of the libel; the more closely it (the defamation) touches
the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty
and the core attributes of his personality, the more serious it is likely to be.
h
The extent of publication is also very relevant: a libel published to millions
has a greater potential to cause damage than a libel published to a handful of
people. A successful plaintiff may properly look to an award of damages to
vindicate his reputation but the significance of this is much greater in a case
where the defendant asserts the truth of the libel and refuses any retraction or
apology than in a case where the defendant acknowledges the falsity of what i
was published, and publicly expresses regret that the libellous publication took
place.
734 Current Law Journal [2000] 3 CLJ
a Damages in defamation cases are described as being at large. The law has
not fixed any exact measure for assessment of damages in an action for
defamation. There is no mathematical formula by which the quantum can be
determined; nor is there any requirement that the damages be assessed with
mathematical certainty. But a small sum awarded to a prominent public figure
b for a serious libel could be interpreted as trivialising the incident.
The learned counsel for the first appellant submitted that the damages awarded
in defamation cases should not be more than damages awarded in personal
injury (and road accident) cases because a man’s arm is worth more than a
man’s reputation. The Court of Appeal considered this same submission, and
c had concluded that such proposition must be rejected. We, too, hold the same
view. The Courts of England have also unequivocally rejected the comparison
of libel and personal injury cases – see Cassell & Co. v. Broome [1972] 1
All ER 801; Blackshaw v. Lord [1984] 1 QB 1; and Sutcliffe v. Pressdram
Ltd. [1990] 1 All ER 269. These authoritative views supported by global
d authorities is that awards of damages in defamation cases cannot be equated
with awards of damages in personal injury cases. In personal injury cases there
is no intention to cause harm or damage to the plaintiff. If there was such an
intention he would be charged with committing a criminal offence. The tort
is based purely on negligence of the defendant and breach of duty of care
e owed to the plaintiff. The award in personal injury cases is to compensate
the plaintiff for the pain and suffering which the plaintiff has suffered or will
suffer in the future. The element of punishment or deterrence does not enter
into an award in a personal injury cases. In defamation cases, the defendant
intentionally publishes the injurious false statement to cause humiliation and
f anguish to the plaintiff, and to injure his reputation. True, the intention to
defame the plaintiff is not necessary to impose liability on the defendant
because the intention to defame can be inferred from the publication of the
defamatory statement which gives rise to the presumption of malice on the
part of the defendant. The plaintiff in a defamation case gets compensation
not for his damaged reputation. He gets it because he was injured in his
g
reputation by being publicly defamed. The award of damages given to him
serves as a vindication of the plaintiff to the public and as a consolation to
him for a wrong done. That is why it is wrong and unfair to compare awards
of damages in defamation cases with those in personal injury cases. The
awards in personal injury cases for pain and suffering cannot and should not
h be used to provide any guidance when considering what is a reasonable award
of damages in a defamation case.
The learned counsel for the first appellant argued that since his client did not
file any defence, he should not have been allowed to give evidence by the
i court at the trial. But we note that the record of appeal shows that the first
appellant had agreed to proceed with the trial. He wanted to give evidence
on oath at the trial. Had the trial judge stopped him from doing so, there would
have occurred a grave miscarriage of justice. By allowing the first appellant
Ling Wah Press (M) Sdn Bhd & Ors v. Tan Sri
[2000] 3 CLJ Dato’ Vincent Tan Chee Yioun & Other Appeals 735
to give evidence on oath, the judge was giving him an opportunity to reduce a
or mitigate his liability and affording him an opportunity to apologise to the
respondent. But he aggravated the injury done to the plaintiff by giving
evidence on justification and fair comment.
The learned counsel for the first appellant also complained why the respondent
b
had not taken judgment in default of defence. The Court of Appeal had dealt
with this issue, and we have nothing useful to add to it. It stated [1995] 2
MLJ 511:
Faced with the first appellants default in delivering a pleading, the respondent
had a choice. He could have entered interlocutory judgment and moved for
c
an assessment of his damages. Alternatively, he could have set the action down
for trial. He chose the latter course. In this he is supported by authority. It is
the decision in Nagy v. Co-operative Press Ltd [1949] 2 KB 188; [1949] 1
All ER 1019, which also concerned a libel action. The remarks of Cohen LJ
(as he then was) when dealing with the precursor to O. 19 r. 7 are pertinent.
This is what he said ([1949] 2 KB 188 at p. 193; [1949] All ER 1019 at pp. d
1022-1023):
Order 27 r. 11, seems to me to be in its natural meaning permissive. I
think the purpose of the rule was to provide a cheap method for the
plaintiff to obtain in most cases the relief he seeks. But circumstances
might well arise in which a real hardship would be inflicted on a
e
plaintiff if he was compelled to proceed by a motion for judgment and
could not exercise the right which he would otherwise have had of
setting down the case for trial and letting it come on for trial in the
usual way.
In my judgment a plaintiff in a libel action is not bound to enter default
judgment. I certainly see no such compulsion in the language of O. 19 r. 7 of f
the Rules of the High Court 1980. He is entitled to proceed and to set the
action down for hearing for the purpose of vindicating his reputation and to
have his damages assessed. I do not think that it lies in the mouth of a
defendant who has publicly assailed a person’s character to suggest that
vindication ought not to be properly obtained.
g
The hearing of the action commenced on 10 October 1994, having been set
down for trial pursuant to an order for directions made on 22 August 1994. It
has been suggested that the action had come up for trial with undue haste.
But this suggestion overlooks the fact that none but the second appellant had
delivered a defence. If, in the ordinary way, there had been a motion or
summons for judgment that would no doubt have come on much earlier and h
the very same result achieved with one important difference. The evidence of
the respondent would in that event have been confined to an affidavit. The
judge would not have been able to see and gauge the respondent’s demeanour
and this may have well affected the size of the award. More importantly, the
respondent would have lost the chance of denying the libel from the witness
i
box, in the eye of the very same public before whom he was held up to
ridicule. These are matters of practical concern to lawyers who practise in this
area of the law.
736 Current Law Journal [2000] 3 CLJ
a The question then arises: should a plaintiff suffer delay in the vindication of
his character because he chooses not to take advantage of a defendant’s default
in delivering his defence? I would answer that question in the most vehement
negative. To my mind, it does not seem right that merely because a plaintiff
in a libel action elects not to opt for a less expensive method provided by the
rules of court, he should be made to wait for several years in order to clear
b his name as against a defendant who displays little or no interest in the
proceedings.
Learned counsel for the second and third appellants raised the issue of s. 18
of the Defamation Act 1957. The Court of Appeal had dealt at length on this
issue – See [1995] 2 MLJ 529-531, and held that “the short answer to the
c
submission mounted on s. 18 is that it was never raised before the learned
judge, a fact that was conceded by counsel, and it is therefore too late in the
day to argue it on appeal”. But the reasons for making separate awards were
obvious. There were four separate articles in three different issues of the
magazine. The culpability and liability of each of the defendants in the High
d Court is different for the reasons that: (i) the four articles were written by
four different writers; (ii) although all the articles attacked the plaintiff there
is a difference in the gravity and degree of each attack; (iii) the first appellant
here relied on justification and aggravated the libel and he showed no remorse;
(iv) two writers had apologised to the plaintiff in the court and this was a
e mitigating factor; (v) the second appellant had openly admitted liability and
had agreed that the articles had defamed the plaintiff; and (vi) the court had
done justice to the parties by taking these factors into account and made
separate awards. The trial judge was therefore correct in finding the several
defendants liable as several tortfeasors and not as joint tortfeasors. In Hayward
f v. Thompson & Ors. [1981] 3 All ER 450 at 458 Lord Denning MR held:
More to the point would have been the observations of Lord Hailsham LC in
Broome v. Cassell & Co. Ltd. [1972] 1 All ER 801 at 817 when he said that
both in exemplary damages and in aggravated damages, the jury must award
‘the lowest sum for which any of the defendants can be held liable on this
g score’. I do not think that this is at all satisfactory. Suppose there are some
circumstances of aggravation available against the Sunday Telegraph. There may
be other circumstances of aggravation against Mr. House. Likewise there may
be mitigating circumstances in the one and not in the other. No one can say
what is the ‘lowest’ sum.
h The learned counsel for the second and third appellants had argued that the
award should be reduced because these appellants had published their apologies
(see pp. 389 & 390 of the appeal record). While an apology may be taken
into consideration in assessing an award, in this case the counsel for the second
and third appellants had by cross-examining the plaintiff at the trial had further
i aggravated the libel by insisting the truth of the defamatory publication. The
Ling Wah Press (M) Sdn Bhd & Ors v. Tan Sri
[2000] 3 CLJ Dato’ Vincent Tan Chee Yioun & Other Appeals 737
a had taken all relevant factors and circumstances of the case into consideration,
and had also considered all the leading authorities to justify his award of
general and aggravated damages against the first appellant who showed no
remorse or apology to the respondent. Lord Denning in the Associated
Newspaper’s case [1970] 2 QB 450 at 455 stated:
b
The defendants, in putting this plea of justification on the record, run a very
grave risk. If it fails, the damages, which might otherwise have been modest,
would now be colossal.
As regards the general damages awarded against the second and third
appellants, we too find no good reasons to interfere. The trial judge had
considered all the relevant factors, circumstances and the leading authorities.
f The Court of Appeal had affirmed the awards made. Serious and grave
allegations of corruption and underhand dealings had been made against the
respondent. An apology can never undo the harm done to the respondent. Low
and cheap awards will only send the wrong signal, and will become a licence
to libel the respondent and other people with impunity. Appropriate awards
g
must be made to nail the falsity of the allegations and to vindicate the
respondent.
We find the awards made by the judge and affirmed by the Court of Appeal
are reasonable in the circumstances, and are based on established principles
of law. The appellants have failed to show to us that the trial judge had acted
h on a wrong principle of law or has misapprehended the facts or has made a
wholly erroneous estimate of the damage suffered. Therefore the awards are
not erroneous or excessive to warrant any interference by this court.
We, therefore dismiss these appeals with costs.
i
C
[2005] 2 CLJ Chin Choon v. Chua Jui Meng 569
CHIN CHOON a
v.
CHUA JUI MENG
COURT OF APPEAL, PUTRAJAYA b
GOPAL SRI RAM JCA
ABDUL KADIR SULAIMAN JCA
NIK HASHIM JCA
[CIVIL APPEAL NO: W-02-372-2000]
14 OCTOBER 2004
c
TORT: Damages - Defamation - Libel - Compensatory, aggravated and
exemplary damages - Fair quantum - Separate award for each head - Whether
against practice - Awards thereof - Whether to be globalised
The appellant, an advocate and solicitor, had published a libel against the d
respondent, the Deputy Minister for International Trade and Industry. The
defamatory statement, which was published in two Chinese newspapers, spoke
of the appellant as having ‘boxes of evidence’ that the respondent was corrupt
and had accepted gratification of RM500,000 or RM600,000. At the trial, the
appellant could not however prove his allegations, and was forced to abort
e
his justification plea. The learned judge, in the circumstances, found the
appellant liable and ordered him to pay RM500,000 in damages in respect of
each of the three categories of damages (compensatory, aggravated and
exemplary). Aggrieved, the appellant appealed and argued that the RM1.5
million award was excessive, that the respondent deserved only nominal
damage, and that, since he did not profit monetarily from the attack on the f
respondent, the award for exemplary damages was unwarranted and unjustified.
It was further argued that the learned judge ought to have awarded a global
quantum, instead of apportioning the sums under the respective categories.
Held (setting aside and substituting the award of the High Court) g
Per Gopal Sri Ram JCA delivering the judgment of the court:
[1] Bearing in mind the appellant’s conduct, aggravated damages is justified
and should be awarded. Here is a case of an arrogant appellant who
not only put a plea of justification on record but said that he had ‘boxes
of evidence’ against the respondent to show that the latter had accepted h
RM500,000 or RM600,000. The boxes, as it transpired, were empty and
the plea of justification was withdrawn. (p 575 e)
CLJ
570 Current Law Journal [2005] 2 CLJ
CLJ
[2005] 2 CLJ Chin Choon v. Chua Jui Meng 571
hanya berhak kepada gantirugi nominal sahaja, dan bahawa, oleh kerana beliau a
tidak mendapat apa-apa keuntungan kewangan daripada serangannya ke atas
responden, pemberian gantirugi teladan adalah tidak wajar dan tidak
berjustifikasi. Perayu selanjutnya berhujah bahawa yang arif hakim seharusnya
memberikan suatu award global, dan tidak mengagihkan award mengikut
kategori-kategori di atas. b
Diputuskan (mengenepi dan menggantikan award Mahkamah Tinggi)
Oleh Gopal Sri Ram HMR menyampaikan penghakiman mahkamah:
[1] Mengambil kira kelakuan perayu, gantirugi teruk adalah wajar dan harus
diberi. Kes di sini adalah mengenai seorang perayu yang bongkak yang c
bukan sahaja telah memplidkan pembelaan justifikasi pada rekod, tetapi
mengatakan bahawa beliau mempunyai ‘berkotak-kotak bukti’ terhadap
responden untuk menunjukkan bahawa responden menerima RM500,000
atau RM600,000. Kotak-kotak tersebut, bagaimanapun, dan sepertimana
yang berlaku, adalah semata-mata kosong dan pembelaan justifikasi d
terpaksa ditinggalkan.
[2] Ucapan Lord Devlin dalam Rookes v. Barnard [1964] AC 1129 tidak
boleh diertikan sebagai memberi gambaran bahawa apa yang ingin
dikatakan oleh beliau adalah bahawa pemberian gantirugi teladan harus
dihadkan kepada kes-kes yang melibatkan keuntungan kewangan semata- e
mata. Sebarang bentuk faedah yang diperolehi oleh seseorang defendan
di dalam kes fitnah, sebaliknya, adalah memadai. Faedah sedemikian juga
tidak perlu mencetuskan keuntungan kewangan dengan serta merta.
Memadai jika ia dengan serta merta membangkitkan faedah bukan
kewangan tetapi kemudian bertukar kepada suatu faedah kewangan. f
CLJ
572 Current Law Journal [2005] 2 CLJ
[Appeal from High Court, Kuala Lumpur; Civil Suit No: S2-22-503-1994]
d
Reported by WA Sharif
JUDGMENT
Gopal Sri Ram JCA:
e The appellant is an advocate and solicitor. He was the second defendant in
the court below. This is his appeal against the award of damages made against
him in respect of the libel admittedly committed by him upon the respondent.
The trial judge awarded a total sum of RM1,500,000 made up of RM500,000
as compensatory damages, RM500,000 as aggravated damages and a further
RM500,000 as exemplary damages. The appellant complains that these awards
f
are excessive.
At the date of publication of the admitted libel, the respondent was the Deputy
Minister for International Trade and Industry. The appellant made a charge
against the respondent that was of the gravest nature. He alleged that the
g respondent had acted corruptly in the discharge of his duties. This charge was
made at a press conference called at the appellant’s behest. The story was
carried by two newspapers of the Chinese vernacular. Later, the appellant
repeated the defamatory words to a very limited audience – three or four
journalists – outside the office of the Anti Corruption Agency where he had
h gone to lodge a report. He said that he had “boxes of evidence” against the
respondent. As it turned out, there was no such evidence. Further, the appellant
who had taken the plea of justification abandoned it in the course of the trial.
We would add that there is evidence to show that the appellant was acting
for a client who was facing a possible charge of extortion and had embarked
i
CLJ
[2005] 2 CLJ Chin Choon v. Chua Jui Meng 573
upon his chosen course of action against the respondent for the purpose of a
demonstrating to the world at large that he was a fearless advocate who was
prepared to take on anyone irrespective of his standing.
When this appeal was called on for argument this Monday past, 11 October
2004, this court formed the view that the quantum of damages under all three
b
heads was excessive having regard to the recent trend of awards in defamation
cases. Accordingly, counsel for the respondent was called upon to show why
the appeal should not be allowed and the damages reduced. Learned counsel
for the respondent then drew our attention to the matters set out in para. 2 of
this judgment as grounds that justified the awards in this case. He also
submitted that the evidential materials relied on by the respondent were c
sufficiently weighty, on the very special facts of this case, to justify the very
large awards made by the High Court.
Attention was called to Liew Yew Tian v. Cheah Cheng Hoc [2001] 2 CLJ
385, where this court held that the width or extent of a publication is always d
a relevant consideration when assessing compensatory damages. Counsel argued
that since in that case damages of RM100,000 were awarded when the
publication was only to two persons, the award of RM500,000 was not
manifestly excessive here because the publication was to two newspapers,
namely, China Press and Shin Min Daily News. According to the evidence,
e
the former has a very large daily circulation while the latter has only a
circulation of about 2000 copies per day. On the other hand, counsel for the
appellant pointed out that the article in the China Press was not disparaging
in any way of the respondent and that only that in the Shin Min was. He
then argued that only nominal damages should be awarded.
f
In Defamation Law, Procedure & Practice by Price & Duodu (3rd edition,
para 20-04 at p. 208) the learned authors set out the several factors that a
court must take into account in assessing compensatory damages. This is what
they say:
The amount of damages awarded in respect of vindication and injury to g
reputation and feelings depends on a number of factors:
CLJ
574 Current Law Journal [2005] 2 CLJ
a This list is most helpful. But it must be borne in mind that this is not by any
means exhaustive of the matters which the court may take into account when
making an assessment.
In Karpal Singh v. DP Vijandran [2001] 3 CLJ 871, this court reduced an
award of RM500,000 to RM100,000 on the ground that the award was out of
b
sync with the latest trend of awards. The plaintiff in that case was also a
politician. So was the defendant. Both were lawyers. The conduct of both of
them was relevant and was taken into account as follows:
The respondent relied on his position as a public figure in this suit. But the
c same members of the public who would have read the reports in the two
newspapers would also have read in all the newspapers in the country about
him and the reasons leading to the resignation of the respondent from the post
of Deputy Speaker and his downfall in politics. It would not be correct to say
that the plaintiff’s standing, character, credit and reputation as a public figure
was at its pinnacle at the time the libel was committed and totally collapsed
d because of this libel. In any event, he certainly cannot claim to enjoy a higher
standing, credit and reputation as a public figure than Dato’ Musa bin Hitam
who was only awarded RM100,000 for such a serious libel published just before
the UMNO General Assembly.
...
e
Now, coming to the appellant. He is a well known lawyer and politician. He
was a member of Parliament and a state Assemblyman representing opposition
at that time. It is common knowledge that he was responsible for exposing the
respondent culminating in the respondent's political downfall. The cheque
incident gave him another opportunity to further ruin the respondent. He utilized
f it to the fullest. The fact that his press statement was typed on his ‘Member
of Parliament’ letterhead with his party symbol and the fact that he signed the
press statement as ‘Deputy Chairman, DAP, Malaysia’ and ‘Member of
Parliament, Malaysia’ shows his political motive. He did not apologize. And
he stood his ground throughout. That is the scenario.
g In the circumstances, I am of the view that the award made by the learned
trial judge is excessive. A total award of RM100,000 would be more reasonable.
CLJ
[2005] 2 CLJ Chin Choon v. Chua Jui Meng 575
Dato’ Musa bin Hitam v. SH Alatas & Ors [1991] 1 CLJ 314; [1991] 2 CLJ a
(Rep) 487 is also distinguishable on the ground that at the date of the libel
the plaintiff in that case no longer held public office as a member of the
elected Executive. But it is to be observed that in that case Lim Beng Choon
J made a single global award of RM100,000 that included both compensatory
and aggravated damages. b
On the award of aggravated damages learned counsel for the respondent
referred us to Gatley on Libel & Slander (9th edn, para 32-49 at p. 826) which
reads:
However, the defendant is not confined to evidence of malice when seeking c
aggravated damages. Thus the fact that the defendant has pleaded justification,
and attempted at the trial to establish the plea by persisting in the charge, can
be taken into account by the jury in assessing damages if they find that the
plea is not sustained. A fortiori if the defendant does not attempt to establish
the plea at the trial but does not abandon it. Indeed it has been held that the
mere fact that the defendant has placed a plea of justification on the record is d
a matter the jury can consider when estimating damages, even though the
defendant withdraws the plea at trial. It has been doubted whether mere failure
to make an apology can ever justify aggravation of damages. But the weight
of recent authority is to the effect that the absence of an apology can, depending
on the facts of the case, increase injury to feelings.
e
It was submitted that based on the appellant’s conduct aggravated damages
should be awarded. We think that there is merit in the respondent’s submission.
Here we have a case of an arrogant appellant who not only put a plea of
justification on record but said that he had “boxes of evidence” against the
respondent to show that the latter had accepted RM500,000 or even f
RM600,000. The boxes, as it transpired were empty and the plea of
justification was withdrawn. We are therefore unable to accept the submission
by the appellant that the respondent should receive only nominal damages. That
submission contains the suggestion that the respondent is of poor character
meriting to receive only nominal damages, in our view, itself constitutes an g
aggravating factor. It is established that in an action in defamation, the way
in which a defendant conducts the trial or an appeal may be grounds for
awarding aggravated damages.
Next is the claim for exemplary damages. It is the submission of learned
counsel for the appellant that no exemplary damages should be awarded as h
his client did not profit monetarily from the attack on the respondent. In
support of his submission he relies on the well-known passage in the speech
of Lord Devlin in Rookes v. Barnard [1964] AC 1129 affirmed by the House
in Cassell v. Broome [1972] AC 1027. The learned Law Lord said that there
are only two category of cases in which exemplary damages may be awarded. i
The first is not relevant here. Of the second he said:
CLJ
576 Current Law Journal [2005] 2 CLJ
a Cases in the second category are those in which the defendant’s conduct has
been calculated by him to make a profit for himself which may well exceed
the compensation payable to the plaintiff.
CLJ
[2005] 2 CLJ Chin Choon v. Chua Jui Meng 577
We have considered and taken into account all the factors operating in the a
respondent’s favour. Yet, we are of the view that the award of RM1,500,000
is manifestly excessive. It is certainly far in excess of the range of awards in
defamation cases. In our judgment, having regard to the very special
circumstances of this case, an award of RM200,000 is a fair sum by way of
a global award of damages. We are conscious that this award is twice the b
size of those made in recent cases. But it is made to meet the very special
circumstances of this case. The award herein includes in it compensatory,
aggravated and exemplary damages.
For the reasons already given, this appeal is allowed. The award of
RM1,500,000 made by the High Court is set aside. In its place a sum of c
RM200,000 is substituted.
Now for the question of costs. This is a case in which liability is not in issue.
It is only a quantum question. In our view, the appellant has misconducted
himself both at the trial and on the appeal in the manner already explained. d
He should therefore be deprived of his costs here. We would therefore make
no order as to costs in this appeal and direct the deposit to be refunded to
the appellant. But we will not disturb the order for costs made by the High
Court. Those proceedings were necessitated by the appellant’s conduct. He
must pay those costs.
e
CLJ
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ANTARA
DAN
PENGHAKIMAN
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Pendahuluan
[1] Di dalam tindakan ini, plaintif, Nor Izawati binti Abd Rahman
Malim, Perak. Pada masa yang sama, plaintif mendakwa dia turut
penulis buku.
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[4] Plaintif dan defendan tinggal berjiran dan mengenali satu sama lain
sejak tahun 2006 lagi.
Dakwaan Plaintif
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“Assalamu’alaikum
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Dr segi isu amalan sesat, byk bukti & saksi yg sedia tampil
mangsa.
kerana saya ada klinik sendiri & telah established dlm bidang
behrang 2020.
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[7] Kesan dari slander dan libel tersebut, plaintif telah mengalami
defendan.
Pembelaan Defendan
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lain. Selain itu, defendan menghantar teks dengan niat murni, jujur,
pun pampasan.
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1957, the burden of proof lies on the plaintiff to show (1) the
words are defamatory; (2) the words refer to the plaintiff; and
privilege is set up, as in the present case, the burden lies on the
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i. Elemen Pertama
memutuskan:
memutuskan:
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entire passage in which they are set out. The court is not
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Manakala di dalam kes Mohd Jali bin Haji Ngah (T/A Peranan
Pusat Pendidikan Dan Pemulihan Anak Yatim Dan Cacat
Tenggara Asia) v. The New Straits Times Press (M) Bhd & Anor
[1998] MLRH 665 / [1998] 5 MLJ 773 di muka surat 183, Arifin
Zakaria H (beliau pada ketika itu) memutuskan.
[13] Oleh itu, setiap ungkapan kata-kata yang diucapkan atau ditulis
defendan perlulah diteliti. Berdasarkan kepada slander yang
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Dr segi isu amalan sesat, byk bukti & saksi yg sedia tampil
walau pun tidak ada pengetahuan kepada apa yang berlaku, masih
jika dapat dibuktikan apa yang didakwa sekali pun, ianya adalah
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telah memutuskan:
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[17] Oleh itu, pihak plaintif dengan mudah dapat membuktikan elemen
matter, after it has been written, to some person other than the
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[20] Selain itu, defendan sendiri semasa disoal balas tidak menafikan
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mana berikut:
Provided that the court may, in its discretion, require the facts
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Pandey v. Hotel Marco Polo Pte Ltd [1980] 1 MLJ 4 dirujuk. Dengan
hormatnya didapati bahawa hujahan tersebut adalah meleset. Di
dalam pembuktian kes sivil, pliding pihak-pihak dan keseluruhan
Pembelaan Defendan
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The burden does not lie on the plaintiff to prove that the
Persekutuan memutuskan:
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dipikul plaintif untuk membuktikan motif tidak baik atau niat jahat
defendan semasa mengungkap atau menulis kata-kata fitnah
tersebut.
i. Pembelaan Justifikasi
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[26] Bagi libel pula, teks dikatakan hanya dihantar dan ditujukan kepada
tersebut kepada pihak lain. Selain itu, segala kandungan teks yang
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tersebut.
Di dalam konteks tindakan ini, apa yang perlu dilihat adalah punca
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perubatan Islam.
[32] Bagi libel pula, SP1 hanyalah seorang Pengerusi Masjid dan
had dan keupayaan bertindak SP1. Dia tidak ada kuasa menyiasat
yang lain. Selain itu, defendan tahu JAIPk atau JAKIM dan polis
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tidak perlu lagi membuat penilaian bagi melihat sama ada pihak
Ganti Rugi
Bhd & Anor [2014] 3 CLJ 560 di muka surat 582 telah memutuskan:
or libel, the law presumes that some damages will flow from
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[37] Selain dari menuntut ganti rugi am sebanyak RM1 juta bagi
kehilangan reputasi, defendan turut menuntut sejumlah
RM64,000.00 ganti rugi khas bagi kehilangan pendapatan akibat
penutupan perniagaannya.
Mahkamah Persekutuan di dalam kes Ling Wah Press (M) Sdn. Bhd
& Ors v. Tan Sri Dato’ Vincent Tan Ghee Yioun & Other Appeal
[2000] 3 CLJ 728 adalah dirujuk. Eusoff Chin KHN di muka surat
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large. The law has not fixed any exact measure for
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bagi slander dan libel kerana keduanya adalah saling berkait dan
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Keputusan
plaintif.
Kaunsel:
Bagi pihak plaintiff - Zuraifah Abdul Rahman & Sharina Sharil; T/n
Ridha & Rai
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ANTARA
DAN
JUDGMENT
INTRODUCTION
[1] This is a civil claim for damages for alleged libel of the plaintiff
by the defendants, pursuant to an article entitled “Raja Arak bertukar
Bilal Rockers” which was written by the 2 nd defendant (journalist at
Harian Metro) and was printed and published by the 1 st defendant (a
registered company under the Companies Act, 1965) at page 4 of the
20 th November 2015 issue of the Harian Metro [(“the said article”)-
exhibit P3].
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[3] The defendants denied the allegation and pleaded that the
impugned statements contained in the said article do not bear the
defamatory meanings as pleaded by the plaintiff and therefore are not
defamatory of the plaintiff. The defendants further pleaded that the
said article was based on information, words and statements given by
the plaintiff (SP1) himself to the 2 nd defendant (SD2) during an
interview with SP1 somewhere in June-July 2015 (during the month of
Ramadhan) within the compound of Panglima Kinta Mosque Ipoh
(“the said mosque”) and the defendants have also pleaded that the
plaintiff had consented to the publication of his life history in the said
article. From their statement of defence, the defendants rely on the
defence of justification, fair comment and qualified privilege.
[4] The full hearing of the matter was held on the 22 nd - 24 th May
2017 consecutively, with the list of witnesses as follows:
(a) The plaintiff had called one witness Encik Roslan bin Ali,
the plaintiff [SP1].
(b) The defendants had called two witnesses, Encik Yahya bin
Zainuddin, Executive Photographer [SD1] with the 1 st
defendant and Encik Mohd Hafizee bin Mohd Arop [SD2],
a journalist at Harian Metro.
[5] The evidence from the parties have been duly recorded and upon
perusing all the evidence, relevant cause papers and the respective
written submissions by the counsels, on 16 th June 2017, I find the
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BRIEF FACTS
[6] SP1 in his evidence stated that he was a Bilal at the Masjid
Panglima Kinta, Ipoh (“the said mosque”) and was planning to
produce an album of religious songs (album berunsurkan ketuhanan).
He got acquainted with SD1 as being in the congregation (jemaah) of
the said mosque and it was known that he is working for Harian
Metro. Upon learning of SP1’s intention to produce a religious album,
SD1 introduced SP1 to SD2 with the intention of promoting and
gathering funds for the new album.
[7] According to SP1, during the interview, SD2 did asked him
regarding the new song and had also asked him on why did he
changed from a night club singer to a religious post as a Bilal. Not
long after the said interview, somewhere around the month of
November, SP1 received a message (WhatsApp) from SD2 informing
him of the good sale (jualan laris) of Harian Metro and the story of
the plaintiff was published on the front page of the said newspaper.
On the next day, one of the members of the mosque congregation
showed the plaintiff the paper cutting of the said article. At that time,
the plaintiff was shocked and he felt embarrassed by the said article.
After the said article was published, the plaintiff said that he was
ridiculed (mengata) by the committee of the said mosque and he also
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[8] SD1 affirmed the evidence of the plaintiff, regarding the fact
that he had introduced SP1 to SD2 and even though he was around
during the said interview but he didn’t know the contents of the said
interview.
[9] SD2 in his evidence stated that the said article, were written,
printed and published by the defendants based on information, words
and statements furnished by SP1 himself to SD2 during an interview
in the month of Ramadhan, at the premise of SP1 within the
compound of the said mosque. The information provided by SP1 to
SD2 during the said interview was recorded (hand written) by SD2 in
his diary/note book (exhibit D7) and were later transcribed (exhibit
D7A). SD2 said SP1 had consented to the said article which shows the
plaintiff’s process of transition in his life, from an alcoholic has
successfully changed his way of life to being a religious person. SD2
admitted that the title on the front page of the newspaper “Raja Arak
bertukar Bilal Rockers” was not on his notes but was decided by the
head office in Kuala Lumpur.
THE LAW
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[13] In Tan Sri Dato Vincent Tan Chee Yioun v. Haji Hasan Bin
Hamzah & Ors [1995] 1 MLJ 39 where it was held that it is a question
of law for the court to decide whether the natural and ordinary
meaning of the words used in the articles were capable of conveying a
defamatory meaning of and concerning the plaintiff. Libel does not
depend on the intention of the defamer but on the fact of defamation
and it was irrelevant to consider the meaning the writer and publisher
intended to convey. The question is to be determined by an objective
test
Once proven, the onus then shifted to the defendants to prove any of
the defences:
[15] In the present case it was not disputed that the said article
referred to the plaintiff and since it was published in the local tabloid
Harian Metro, it was in fact communicated to a third party. The
primary issue before this court today is in applying an objective test
as enunciated in Tan Sri Vincent Tan’s case (supra), is whether the
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[16] The plaintiff argued that the impugned statements in the said
article, in their natural and ordinary meaning meant and were
understood to mean as follows:-
(e) the plaintiff is a Bilal with a bad dark history until he was
in a coma due to excessive consumption of liquor; and
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[18] There is no precise test whether or not any given words are
defamatory. Statements or words were defamatory if they tended to
lower the plaintiff in the estimation of right-thinking men or if they
would expose him to hatred, contempt or ridicule or cause him to be
shunned or avoided. Before the words were said to be defamatory, the
court must first look at the particular group in whose eyes the
estimation of the plaintiff was lowered. The court would thus look at
the words from the point view of the law-abiding citizen or that of the
ordinary, reasonable person or that of the right-thinking members of
society in general. Further, the court did not look at the actual effect
of the allegations on the person’s reputation or the meaning of the
words actually understood or taken by listeners. In this respect,
however, it is not enough that the listeners actually took the words as
defamatory for they must be reasonably justified in so taking or
understanding the words.
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in nature that has lowered the plaintiff in the estimation of the general
public, especially to which the plaintiff is stationed in life. The
impugned statements read together would by their natural meaning or
by innuendo, in my opinion, carry a tendency to excite against the
plaintiff the adverse opinion of others. The impugned statements
could also lower the plaintiff in the estimation of right thinking
members of society generally. Based on that, I hold that the impugned
statements complained are defamatory in nature.
[20] The legal issue that the said article refers to the plaintiff and
that there was in fact publication by the 1 st defendant is never in
dispute in the present case, leaving only the finding on the language
employed in the said article whether they are considered defamatory
in nature or not. In my considered view, looking at the facts and
circumstances of the case presented to this court, the three legal
requirements as set out in Kian Lup Construction’s case (supra) has
been satisfied in the determination of defamation in the present case.
DEFENCES
[21] Based on the above, I am satisfied that the plaintiff has proven
its case and I now moved on to consider the defences raised by the
defendants which I will discuss as follows:
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[24] In reply, the learned counsel for the plaintiff argued that the
plaintiff had never consented to the words used for the publication of
his life story. The learned counsel referred to the cross examination
SD2 who admitted that the contents of the said article was not
consistent with the notes taken by SD2. The example are as follows:
(a) The words that was published in the said article are as
follows: “beliau akan minum arak sehingga mabuk serta
marah sekiranya tidak mendapat arak dalam sehari” were
not in the notes taken by SD2 (exhibit 7).
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[25] Based on the evidence before me, there are certain facts reported
by the defendants that are incorrect or inaccurate (as submitted by the
learned counsel above). I refer to the case of Abdul Rahman Talib v.
Seenivasagam & Anor [1966] 2 MLJ 66, Barakbah CJ (Malaya) which
stated as follows:
[26] I refer to the case of Utusan Melayu (M) Bhd v. Othhman bin Hj
Omar [2017] 2 MLJ 800, [2017] 2 CLJ 413 where the Court of Appeal
said that it has always been the case in our own jurisdiction as
decided in plethora of cases, that the test to determine whether the
words complained of are capable of bearing defamatory meaning is
based on the ordinary and natural meaning of the words published. It
may be either the literal meaning or it may be implied or inferred or
indirect meaning. It does not require the support of extrinsic facts
passing beyond the general knowledge. It is an objective test in which
it must be given a meaning a reasonable man would understand it. In
order to understand it, the whole article has to be considered. In the
present case, I agree with the submission by the learned counsel for
the plaintiff in that there are words published in the said article which
are not the words of the plaintiff and I believe there are elements of
falsity in the said impugned statement and consequently therefore, I
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[28] The learned counsel for the defendants submitted although SD2
did in fact slightly vary some of the wordings and/or statements in the
said article from those which were furnished by the plaintiff, the
contents and meanings of the wordings and/or statements remain the
same.
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[30] This is a common law defence as the Act does not provide the
defence of statutory qualified privilege for individuals. However,
section 12 of the Act gives qualified privilege to publication in a
newspaper of any report or other matter as is mentioned in Part 1 of
the schedule to the said Act unless off course such publication is
proved to be made with malice.
[31] There are three (3) elements necessary to establish the defence
of qualified privilege which are as follows:
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was then) referred to the judgment by the Federal Court in John Lee &
Anor v. Henry Wong Jen Fook [1981] 1 MLJ 108 which held that
where a statement made by a person having the legal duty to make it
and the recipient has a corresponding interest or duty to receive it,
such communication is privileged.
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due regard to the adverse impact it would have on the standing of the
plaintiff as a working Bilal in the said mosque. Commercial
consideration was the paramount importance on the part of the
defendants when the title of the said offensive article was named and
decided by the defendants to attract readers interests and sale of the
tabloid newspaper without due regard the adverse impact it had on the
life and standing of the plaintiff. This in the circumstances of the case
constitute malice on the part of the defendants. In an action for libel
or slander it is the practice to allege that the words were published
falsely and maliciously. The plaintiff however does not have to prove
falsity and malice to establish his cause of action. If the words are
defamatory, the law presumes that they are false (see International
Times v. Leong Ho Yuen [1980] 2 MLJ 86 at 89, FC, per Salleh Abas
FJ), and it is for the defendant to plead and prove the words are true
(see S. Pakianathan v. Jenni Ibrahim [1988] 2 MLJ 173 at 179, SC).
The malice signified by the phrase falsely and maliciously is malice
in law, that is to say a wrongful act done intentionally without just
cause or excuse. Malice in that sense is presumed from the fact of the
publication of defamatory words, so that the plaintiff need not prove
it (see S. Pakianatahan case (supra), per Wan Hamzah SCJ). I
therefore hold that the defendants are not entitled to rely on the
defense of qualified privilege for this tortuous wrong committed
against the plaintiff.
DAMAGES
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the plaintiff, the gravity and seriousness of the libel and the extent of
the circulation of the defamatory statements. It cannot be disputed
that the plaintiff was a working Bilal and has high religious standing
among the jemaah masjid (congregation of the mosque) and the
libellous allegation is serious as he was allegedly an alcoholic and the
libel was of grave and serious nature. It also has tendency to damage
the reputation of the plaintiff as the Bilal and his appointment as Bilal
was not renewed after the publication of the said defamatory article.
In respect of the extent of the circulation, Harian Metro is a tabloid
that has wide circulation in the Peninsular Malaysia and I find that the
publication was in fact extensive.
CONCLUSION
[39] After having considered the above and in the upshot, I therefore
awarded the plaintiff an award for general damages of RM70,000.00
and cost of RM15,000.00 to be paid to the plaintiff. I have however
dismissed the claim for special damages as it was not pleaded and
failed to be proven by the plaintiff. The claim for exemplary damages
must be dismissed for want of evidence and as it did not come within
the principles set out in the case of Rookes v. Barnard & Ors [1964]
AC 1129. I have also further ordered that the defendants are to print a
written apology in regard to the said article in Harian Metro two (2)
weeks from today (this judgment). On further application by the
counsel for the defendants and with no objection from the counsel for
the plaintiff and since I find there are circumstances that warrant a
stay to be granted to preserve the status quo of the parties, therefore
stay was granted pending appeal to the Court of Appeal.
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COUNSEL:
For the plaintiff - Syahidah Hanum Mohd Ghazali & Sharul Shabaath
Ali; M/s Syahidah Ghazali & Partners
For the defendants - Muhammad Farhan Abd Ghani & Oazair Huneid
Tyeb; M/s Sharizat Rashid & Lee
Ummi Hafilda Bte Ali v. Ketua Setiausaha Parti Islam (PAS) [2006] 4
MLJ 761
Tan Sri Dato Vincent Tan Chee Yioun v. Haji Hasan Bin Hamzah &
Ors [1995] 1 MLJ 39
Utusan Melayu (M) Bhd v. Othhman bin Hj Omar [2017] 2 MLJ 800,
[2017] 2 CLJ 413
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YB HJ Khalid Bin Abdul Samad v. Datuk Aziz Bin Isham & Anor
[2012] 7 MLJ 301
John Lee & Anor v. Henry Wong Jen Fook [1981] 1 MLJ 108
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ANTARA
DAN
DI HADAPAN
Y.A. TUAN GUNALAN A/L MUNIANDY
PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI
GROUNDS OF DECISION
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[3] After a full trial, I found the Defendant liable for defamation
by libel as alleged and entered judgment for the Plaintiff on liability
and assessed general damages payable by the Defendant in the sum of
RM 100,000.00 and costs in the sum of RM 15,000.00.
Background Facts
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President
Malaysian Medical Council
Ministry of Health Malaysia
Block B, Ground Floor
Jalan Cenderasari
50590 Kuala Lumpur
YBhg Datuk,
Assalamualaikumwarahmatullahiwabarakatuh
The very first meeting with YBhg Datuk has given me the
impression that you are pious and a good Muslim and
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4
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……….
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……..
cc.
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[7] The Defendant did not deny sending the letter containing the
alleged defamatory words and/or comments to the President of the
MMC and the numerous parties to whom it was copied.
[8] It is trite law that the tort of libel is actionable per se without
the need to strictly prove damages. Upon the libel being established,
the law assumes that the Plaintiff has suffered damage to his
reputation and that he is entitled to an appropriate award of damages.
It is settled principle that the award of damages in defamation cases is
within the province of the trial Court and entirely at its discretion.
Any discretionary power is however required to be exercised
judicially in accordance with established principles and all relevant
considerations in the particular case.
[9] A leading case on this aspect of the law is the Federal Court
case of Ling Wah Press (M) Sdn. Bhd. & Ors. v. Tan Sri Dato’
Vincent Tan Chee Yioun and Other Appeal [2000] 3 CLJ 728 where
Eusoff Chin, CJ held inter alia:
We are not in the same position as the judge at the trial for
assessing damages for defamation. He has an opportunity
denied to us of judging the true character of the plaintiff
whose sensibility, refinement and feelings of honour are,
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“In Lau Yeong Nan v. Life Publisher Berhad & 2 Ors [2004] 7
MLJ 7 [TAB P of the PBOA], the defendant newspaper
published an article which meant that the singer Plaintiff was a
liar, an incompetent singer and that he was attempting to
deceive the public that his music was heard by the world at large
and had cheated the Chinese public in China. The High Court
held that the newspaper article was sarcastic, withering,
demeaning, scandalous and outright false and showed how
heartless and unfair the defendants were, and awarded RM
300,000.00 for general and aggravated damages.
The Court in M.G.G. Pillai v. Tan Sri Dato’ Vincent Tan Chee
Yioun & 2 Other Appeals [1995] 2 CLJ 912 [TAB Q of the
PBOA] the learned judge had awarded RM3 Million as general
damages against the first Defendant/Appellant which arose out
of the finding of defamation and of conspiracy to defame the
Plaintiff.
[12] In Lim Guan Eng v. Utusan Melayu (M) Bhd. [2012] 2 MLJ
394 the Court awarded the Plaintiff, the Chief Minister of Penang,
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Finding
[14] The grounds for the Plaintiff’s claim for a substantial sum of
RM 5.0 million as general damages are in essence two pronged:
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[See Roshairee bin Abdul Wahab v. Mejar Mustafa bin Omar & Ors
[1996] 3 MLJ 337; Rookes Barnard [1964] AC 1129].
(GUNALAN MUNIANDY)
Pesuruhjaya Kehakiman
Mahkamah Tinggi Malaya
Shah Alam
COUNSEL:
For the plaintiff - Parvinder Kaur, M/s Jasbeer Nur & Lee
Kuala Lumpur
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Ling Wah Press (M) Sdn Bhd & Ors v. Tan Sri Dato’ Vincent Tan
Chee Yioun and Other Appeal [2000] 3 CLJ 728
Lim Guan Eng v. Utusan Melayu (M) Bhd. [2012] 2 MLJ 394
Roshairee bin Abdul Wahab v. Mejar Mustafa bin Omar & Ors [1996]
3 MLJ 337
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ANTARA
DAN
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Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461 CA (dirujuk)
Datuk Seri Anwar Ibrahim v. Utusan Melayu (M) Bhd & Anor [2013]
3 MLJ 534 (dirujuk)
Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor [2008] 2 CLJ
814 HC (dirujuk)
Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v. Bre Sdn Bhd & Ors
[1995] 1 LNS 304 HC (dirujuk)
ALASAN PENGHAKIMAN
A. LATAR BELAKANG
[2] Di dalam kes ini, Plaintif telah memanggil 5 orang saksi untuk
membuktikan kesnya. Manakala Defendan telah memanggil 4 orang
saksi. Di akhir kes, setelah mendengar hujahan kedua-dua pihak,
Mahkamah telah memutuskan untuk membenarkan tuntutan Plaintif
terhadap Defendan. Seterusnya mahkamah telah memerintahkan agar
gantirugi sebanyak RM70,000.00 (secara global) serta kos sebanyak
RM10,000.00 dibayar oleh Defendan kepada Plaintif. Defendan yang
tidak berpuas hati dengan keputusan tersebut telah merayu ke
Mahkamah Rayuan. Ini adalah alasan-alasan Mahkamah terhadap
keputusan tersebut.
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B. FAKTA KES
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serta boleh dicapai oleh orang awam. Menurut Plaintif, kata-kata fitnah
tersebut telah menanamkan rasa kebencian dan kehinaan orang ramai
terhadap Plaintif yang merupakan seorang yang berjawatan tinggi di
Universiti dan dihormati oleh pelbagai lapisan masyarakat.
[7] Oleh yang demikian Plaintif telah memfailkan tindakan ini terhadap
Defendan untuk fitnah serta menuntut Ganturugi Am, Gantirugi Teruk,
Gantirugi Teladan sebagaimana yang akan ditaksirkan oleh Mahkamah
berserta faedah dan kos. Plaintif juga memohon agar Defendan
menerbitkan permohonan maaf secara bertulis di akhbar tempatan
untuk dikenalpasti dan dalam bentuk dan istilah yang akan ditentukan
oleh Plaintif.
C. HUJAHAN PLAINTIF
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[13] Malah Plaintif berhujah bahawa keterangan SD2 dan SD3 semasa
disoal balas bersetuju bahawa apa-apa jua tindakan yang dibuat oleh
Plaintif dalam menjalankan tugas pentadbiran sebagai Timbalan Dekan
Akademik adalah atas arahan pihak atasan Universiti sahaja. Oleh itu
tiada masalah dalaman di Fakulti dan Universiti perlu dikaitkan dengan
kes ini.
[14] Plaintif juga berhujah bahawa Defendan adalah tidak layak untuk
menggunakan Pembelaan Perlindungan Bersyarat (Qualified Privilege)
memandangkan status maklumat yang diterima oleh Defendan adalah
meragukan dan Defendan tidak pernah berusaha untuk mendapatkan
maklumat sebenar selain mendengar maklumat daripada kata-kata
orang lain.
[16] Oleh itu Plaintif berhujah bahawa wujudnya dendam peribadi oleh
Defendan terhadap Plaintif yang menunjukkan terdapatnya niat jahat
(malice) oleh Defendan di dalam menyebarkan email tersebut. Oleh itu
Defendan adalah tidak layak menggunakan Pembelaan Perlindungan
Bersyarat di dalam kes ini.
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D. HUJAHAN DEFENDAN
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E. UNDANG-UNDANG BERKAITAN
“In our law on libel which is governed by the Defamation Act 1957 the
burden of proof lies on the Plaintiff to show:
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ii. Plaintif merupakan seorang staf yang kasar dengan staf bawahan.
iii. Plaintif telah menggunakan agama untuk kepentingan peribadi.
iv Plaintif hanya merupakan alat kepada Dekan
v. Plaintif telah menyuruh staf-staf bawahan untuk menipu.
vi Plaintif telah menggunakan pelajar Latihan amali untuk membuat
kerja-kerja peribadi.
vii Plaintif telah mengugut pelajar-pelajar Latihan amali tersebut untuk
kepentingan diri.
Viii Plaintif telah melakukan ugutan Jenayah terhadap staf.
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G. PEMBELAAN DEFENDAN
i. Justifikasi (Justification)
ii. Komen berpatutan (Fair Comment)
iii. Perlindungan bersyarat (Qualified Privilege)
i) Pembelaan Justifikasi
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[35] Di dalam kes Datuk Seri Anwar Ibrahim v. Utusan Melayu (M)
Bhd & Anor [2013] 3 MLJ 534 pula, Mahkamah memutuskan seperti
berikut:
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III. that the comments are based on facts, truly stated. They
must also be fair and which a fair minded person can
honestly make on the facts proved.”
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H. KESIMPULAN
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(AHMAD BACHE)
Pesuruhjaya Kehakiman
Mahkamah Tinggi Kota Bharu
Kelantan
Kaunsel:
Bagi pihak defendan - Hisham Fauzi & Intan Nor Nadirah; T/n
Hisham Fauzi & Associates
Peguambela & Peguamcara
Tingkat 2, Kompleks Niaga Lembaga Tabung Haji
Jalan Dato’ Pati
15000 Kota Bharu
Kelantan
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ANTARA
DAN
JUDGMENT
Introduction
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public scandal, odium and contempt. The impugned defamatory
statements have also lowered the plaintiff as an individual and/or
professional in the estimation of right-thinking men in general, the
plaintiff claimed.
[2] The parties have gone through a full trial. On 30.5.2017, this
Court delivered its decision. This Court allowed the plaintiff’s claim.
This judgment sets down the reasons for the decision of this Court.
[8] The essence of the two news reporting was about the grievances
of the house owners in a residential housing project known as Taman
Bayu Damai, Johor Bahru.
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[9] The footage from the news reporting revealed houses in the
housing project were unfit for occupation after vacant possession had
been delivered. There were serious cracks on the internal and external
walls of the houses. Cracks could also be seen on the drains
surrounding the houses. The footage also revealed the construction
of the foundation of the houses was seriously in question. Soil
erosion and soil settlement could be a factor that caused the cracks
in the houses.
[10] It was reported that the housing project was implemented and
managed by the Unit Perancangan Ekonomi Negeri Johor (UPEN).
The developer of the said project was Tebrau Teguh Sdn Bhd. The
plaintiff’s firm was the architect of the housing project.
[11] In one part of the footage aired on 17.1.2015 (the first footage),
the 3 r d defendant, being the anchor reporter of the news, interviewed
some house owners. The first footage ended with a note to inform the
viewers that the news reporting will be continued the following day
with the outcome and reactions of UPEN, the architect firm and the
developer involved in the housing project.
[13] The plaintiff complains there are statements made and reported
in the first footage that were defamatory of him. Those impugned
statements are as follows:
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(a) “Projek dilaksana Unit Perancangan Ekonomi (UPEN) J ohor,
yang melantik perunding arkitek bagi mereka bentuk, dan
pembinaannya.” - A statement uttered by the narrator.
(b) “Ada rumah saya semua, longkang semua pecah, makna bawah
tanah ini semua bawahnya semua tanah kosong, takda tanah.
Longkang dia cuma bikin, dia bikin cuma dia ‘celet- celet’ je.” -
A statement uttered by one Hamaidon Salleh, a house owner
interviewed by the 3 r d defendant.
(c) “Saya pindah mari satu haribulan May tahun lepas la, ahh..dapati
rumah yang kami dapati ni retak, retak tu mula mula longkang tu
pecah, longkang-longkang pecah, retak, kemudia reta k itu
semakin hari semakin membesar bila masa hujan turun membesar
pecah tu.” - A statement uttered by one Lugiman Sastro during the
interview carried out by the 3 r d defendant at the site.
[14] The plaintiff also complains that there are statements made and
reported in the second footage that also contained defamatory
statements. Those impugned statements are as follows:
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selepas itu dan kerosakan itu kata kerosakan yang b esar,
maknanya salah arkitek yang mereka dan seterusnya
mengesahkan.” - A statement uttered by Pengarah UPEN Encik A.
Rahim Nin.
[16] The plaintiff also pleads that those impugned statements and
visual imagery by their natural and ordinary meaning and/or by
implication meant and were understood to mean, inter alia, the
followings:
• The plaintiff constructed the houses that were not fit for
habitation;
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• The plaintiff did not take his responsibilities or his tasks
seriously;
• The plaintiff was not fit and proper person to hold positions of
responsibility;
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• The plaintiff is a disreputable professional;
[18] The first and second footage were broadcasted in the said news
programme in the news segment Aduan Rakyat on 17.5.2015 and
18.5.2015 respectively. In addition, the two news reporting were
uploaded and available for viewing on the website which is owned
and/or managed and/or administered by the 4 t h defendant.
[21] The learned counsel for the defendants conceded that two out
of the three elements necessary in order to establish the plaintiff’s
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case have been established and proved in the trial, namely, the
impugned statement referred to the plaintiff and that they have been
published, i.e. publication has been satisfied. The only contention
left for the consideration of this Court in the plaintiff’s case is
whether the impugned statements are capable of or have a tendency
of having a defamatory meaning.
Defamatory Statement
i. The plaintiff, being the appointed architect of the project, was also
appointed to construct the houses in the project;
ii. There were serious cracks and defects in those houses purportedly
constructed by the plaintiff; and
i) UPEN informed that the developer was Tebrau Teguh Sdn Bhd and
that the houses were constructed based on the desig n facilitated
by the plaintiff, and the parties supposed to hand over the houses
free from defects;
ii) The plaintiff, who was the architect in the project, had certified
the CCC, therefore, the plaintiff has to be responsible if there are
serious defects in the houses;
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iii) The architect failed to respond to the enquir y by the defendants
for comment.
[24] The news reporting stated that the plaintiff as the appointed
architect in the housing project was also involved in the construction
of the said houses. This report suggests that the plaintiff has violated
the Architects Act 1967. A professional architect is not supposed to
undertake construction works in a project in which he is the architect,
otherwise the architect would be in conflict of interest. Viewers who
are familiar with the duties of professional architects would think
that the plaintiff had gone outside his scope as a professional
architect. This reporting places the plaintiff into disgrace within the
architect profession.
[25] The footage showing the defects and cracks of the houses would
convey a message to the viewers that the professionalism of the
plaintiff as a professional architect is highly questionable. The
statements made by the Director of UPEN impressed upon the fact
that the CCC was issued by the plaintiff, and therefore, the plaintiff
and parties who were involved should be answerable. The footage
then ended with the fact that there was no response from the plaintiff
up to the time of reporting. The last statement in the second footage
seems to convey the message the plaintiff was avoiding from making
any comment.
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[27] The learned counsel for the defendants has condensed the
impugned statements in the two news reporting into two parts. The
first part, as he termed it as the 1 s t sting as follows:
“The plaintiff had issued the Certificate of Compli ance & Completion
(CCC) certifying that the houses built were safe and fit for occupation.
And if the houses suffered damage subsequently rendering them unsafe
and unfit for occupation, the plaintiff architect w ho designed and issued
the CCC is to be blamed.”
[29] With regard to the 1 s t sting, the learned counsel for the
defendants submitted that the impugned statements in the first
footage must be understood as a whole, and that the court must take
into consideration the other parts of the reporting which are capable
to take away the 1 s t sting.
ii) “Dakwa pengadu aduan yang dibuat kepada pemaju baga ikan
mencurah air ke daun keladi....” - Statement made by the narrator.
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iii) “Esok Aduan Rakyat dapatkan reaksi UPEN Johor, syarikat akitek
serta pemaju yang terbabit dengan perumahan Bayu Damai.” -
Statement made by narrator.
[31] The learned counsel for the defendants submitted that the above
statements, read together with the 1 s t sting, would convey to the
viewers the following messages:
ii) Complaints with reg ard to the unstable site wer e made to the
developer, as opposed to the architect (plaintiff) but there was no
response;
[33] The learned counsel for the defendants submitted that the above
statement in the second footage has clarified and made clear the point
that the houses in the project were built by the developer, not the
plaintiff. When read as a whole, in its entirety and in context, the
impugned statements make it abundantly clear that: (i) the houses in
the project were built by the developer; and (ii) in addition to the fact
that the developer had failed to ensure the stability of the housing
project site, complaints made to the developer by the residents and
requests for remedial action to be taken were ignored by the
developer, the learned counsel for the defendants submitted. Hence,
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st
the 1 sting arising from the words complained of is taken away by
several other passages which does not give any meaning which is
capable of defaming the plaintiff, the learned counsel for the
defendants further submitted.
[36] With regard to the 2 n d sting, the learned counsel for the
defendants conceded that those impugned statements in the second
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footage are prima facie defamatory or capable of having a defamatory
meaning.
Defences
[38] This Court, after being satisfied that the plaintiff has proved his
case, moved on to consider the defences raised by the defendants.
[40] The thrust of the defendants’ argument is that the true facts are
that the houses were not fit for occupation; and that the plaintiff,
being the principal submitting person (PSP), submitted the CCC
dated 5.3.2014 in Form F pursuant to the Street, Drainage and
Building Act 1974 which replaced the old system and procedural
rules for the issuance of Certificate of Fitness for Occupation (CFO),
therefore, the plaintiff has to be responsible and accountable for his
act of issuing the CCC under the new procedural law. The learned
counsel for the defendants has submitted at length in regard to the
new regime of the issuance of CCC, and that based on this new regime
of procedural requirements of the issuance of CCC, the PSP must be
made accountable for his action when he decided to issue and submit
the CCC. On this score, the defamatory statements, particularly those
in the second footage, or the 2 n d sting, is indeed true and justified.
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[41] In response to this first defence, the learned counsel for the
plaintiff submitted that the Lucas-Box defence was not pleaded. After
examining the defendants’ Statement of Defence, I find that the
Lucas-Box defence was indeed not pleaded. The decision of the
Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v. Tony Pua
Kiam Wee [2015] 6 MLJ 187, at pp. 209-210, states:
[43] This Court is of the considered view that the issue whether an
architect could be accountable for the issuance of the CCC under the
new regime of the procedural law in the event the construction of
houses suffer serious defects is not an issue to be tried in this present
case. The crux of this case is not about the extent of liability of an
architect in relation to the issuance of CCC. No clear evidence was
adduced before this Court on the said issue, and the said issue was
not fully ventilated during trial. The counsels are not to be blamed,
because it was not an issue agreed to be tried at the first place.
Perhaps, this intricate issue could be fully ventilated and adjudicated
in another appropriate case.
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[44] Still on the defence of justification, the learned counsel for the
plaintiff brought to the attention of this Court that an interim
injunction was granted by this Court (by the previous judge) on
30.9.2015. In order to obtain an interim injunction in a defamation
case, the plaintiff must satisfy the court that the impugned statement
is untrue. Hence, the defendants could not rely on the defence of
justification in their defence now, the learned counsel for the plaintiff
submitted. The learned counsel for the plaintiff cited a Supreme
Court decision in The New Straits Times Press (M) Bhd v. Airasia
Bhd [1987] 1 MLJ 36, wherein it states:
“(1) There was no reason to depart from the general rule that an
interlocutory injunction will not be granted against a defendant in a
libel action if he intends to pled justification unless the plaintiff can
prove that the statement is untrue; (2) The plaintiff had not shown that
the defendant’s statement was untrue.”
[45] Based on the evidence before the Court, there are certain facts
reported by the defendants that are incorrect or inaccurate. In the
interest of justice and fairness, a defendant ought not to be precluded
from leading evidence in support of his defence of justification in the
trial as well as relying on the defence of justification in the
submission. The determination of an interim injunction is not the
final of determination of the case. Evidence will not been fully
adduced during the interlocutory stage. Therefore, a court can only
make a finding of fact after evidence has been led in a trial. It is only
then that a court can determine whether a fact is or is not true. This
Court is of the opinion that at the interlocutory stage, all the plaintiff
is required to prove is that there are elements of untrueness in an
impugned statement. In the course of the trial, the defendant will lead
evidence to defend the assertion that the statement is not ‘untrue’.
Having said that, in this instant case, as the Lucas-Box defence was
not pleaded, as explained above, therefore, this Court could not
consider this defence.
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Reynolds Defence - Qualified Privilege
Public Interest
[47] The learned counsel for the defendants submitted five reasons
why the defendants believed that the impugned reporting was of
public interest. However, these five reasons submitted are again not
pleaded in the Statement of Defence. For this reason, the
consideration of whether the reporting is or is not of public interest
ought not to be considered by this Court, and it follows that the
Reynold defence must fail. However, having said that, it is the
considered view of this Court that the impugned news reporting does
not carry any element of public interest. An issue is considered of
public interest if it affects the general public at large, especially if it
affects the public rights, health or finances. An issue said to be of
public interest must possess a common concern among the people in
the management of the welfare of the society by the state, local
authorities, public bodies and the government, or any institution is
authorised to carry out the duties, functions and responsibilities of a
state, local authorities, public bodies or the government. In short, an
issue that concern the public weal or that the public weal is at stake.
[48] In the instant case, the impugned news reporting concerns only
a specific group of persons, i.e. only those house owners in the
housing project. Matters concerning public interest must necessarily
affect across the breadth of the society as a whole. Housing projects
with defective houses is not something that would affect the public
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at large, but only affect a small group of house buyers. There are
avenues provided by the local and federal government for house
owners to complain and seek remedies. These affected house owners
could also bring civil suits in court. Hence, the impugned news
reporting could not be characterized as being of public interest.
Pushing further the argument of public interest in the defendants’
defence, if the concern in the news reporting is to highlight what the
extent of the responsibility of an architect who issued the CCC is (as
argued in the Lucas-Box defence), though the issue would in
substance affect the general public rights, health and finances, such
reporting would be unfair to the plaintiff. This is because the plaintiff
would become the scapegoat for such argument before the courts of
law to have decided this point.
[49] For completeness, this Court will consider the submission of the
learned counsel for the defendants on the steps taken by the
defendants verifying the information and publishing the information
as fair and responsible. This Court has considered submission of the
learned counsel for the defendants, and found two out of ten items
listed by the learned counsel for the defendants in his submission
warrant a comment of this Court. They are (i) the steps taken to verify
the information; and (ii) whether the article contained the gist of the
plaintiff’s side of the story. These two items are interrelated to a
certain extent in relation to the actions taken by the 3 r d defendant.
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rd
Upon arrival, the 3 defendant introduced himself and went into the
office. He told the staff (Hanis Nazurah Bte Abu Hassan - PW1) who
received him the purpose of his visit. He was then informed by the
staff that the person-in-charge was not in. The 3 r d defendant then left
his calling card with the staff and told the staff to pass his calling
card to the person-in-charge to call him. The 3 r d defendant and his
camera crew left the plaintiff’s office.
[51] The above event prompted the learned counsel for the
defendants in his submission to submit as follows:
“i) Despite the 3 r d defendant (SD1) leaving behind his contact details
as alluded to above for the Plaintiff Architect to call, no such call was
ever made by the Plaintiff Architect to the 3 r d Defendant (SD3) [sic]
even up to and after the time when the impugned bro adcasts were aired
on 17.01.2015 and 18.01.2015, some 12 days since wh en the contact
details were first left behind on 07.01.2015.”
“k) Had the Plaintiff Architect contacted the 3 r d Defendant (SD1), his
explanation, comments or answers in respect of the problems plaguing
the residents of the TBD housing project, or his response to the
comments of the En. Rahim, the Director of UPEN, could have been aired
as part of the impugned broadcast on 18.01.2015.”
“n) It is hence submitted that adequate steps were indeed taken, which
were possible in the circumstances of that time, to obtain the Plaintiff’s
comments and to verify the information prior to its broadcasting albeit
they were never forthcoming.”
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[52] This Court is of the considered view that the actions taken by
the 3 r d defendant were inadequate to satisfy ‘responsible journalism’.
Firstly, the 3 r d defendant did not make an appointment with the
plaintiff before he went to the plaintiff’s office. Being a professional
journalist, it would be more appropriate to arrange for a meeting with
the person concern before attending to the person’s premises,
especially a working place. The plaintiff is not an ordinary lay
person, but a professional architect. Secondly, leaving a calling card
at the plaintiff’s office could not be construed as the 3 r d defendant
has notified the plaintiff of his intention of the visit to the plaintiff’s
office. Thirdly, there was no obligation for the plaintiff to call the
3 r d defendant, because the real intention of the 3 r d defendant’s visit
was not properly related to the plaintiff. Fourthly, having a cooling
off period does not give the 3 r d defendant or other defendants the
carte blanche to report statements which could be defamatory in
nature. Fifthly, reporting something which in nature could affect a
person’s professional credibility is a serious matter. Therefore, it
would be unjust not to obtain a response from the person, unless it is
unnecessary or impracticable. In this instant case, the response of the
plaintiff could not be said unnecessary or impracticable (see Dato’
Seri Anwar bin Ibrahim v. The New Straits Times Press (M) Sdn Bhd
& Anor [2010] 2 MLJ 492). Sixthly, the 3 r d defendant did not attempt
to follow-up to contact the plaintiff after his unscheduled appearance
at the plaintiff’s working place before the publication of the
impugned news reporting. Seventhly, not notifying the plaintiff of
the comment made by the director of UPEN before publication would
be unfair to the plaintiff. It is like springing a surprise ‘attack’ on the
plaintiff’s professional conduct without giving him a chance to
respond. Lastly, the news reporting did not make clear that the 3 r d
defendant’s visit to the plaintiff’s work place was an unscheduled
one. The manner in which the news reporting was reported was as if
the plaintiff did not want to respond to the defendants.
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[53] With regards to the submissions of the learned counsel for the
defendants on the other steps taken by the defendants, this Court has
considered the reply submissions of the learned counsel for the
plaintiff. This court, after having considered both counsels’
submissions, is more inclined to accept the rebuttals raised by the
learned counsel for the plaintiffs in his reply submissions.
Malice
Trespass
Conclusion
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[56] Based on the above reasoning, this Court allowed the plaintiff’s
claim. This court has, before awarding the damages to the plaintiff,
taken into consideration of the following factors:
iv) The injur y caused to the plaintiff not only to his professional
career but also to his personal integrity, honesty and trustworthy
as a person;
vi) The impugned news programme could have caused l oss of public
confidence in the plaintiff as a professional architect; and
[57] After having considered the above, the Court awards the
plaintiff as follows:
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iii) The prayer in paragraph 24(g) in the Statement of Claim is not
allowed;
iv) The pray ers in paragraph 24(h) and (i) in the State of Claim are
allowed; and
DATED: 5 JULY2017
Counsel:
For the plaintiff - David Peter; M/s Jerald Gomez & Associates
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IN THE COURT OF APPEAL OF MALAYSIA
(CIVIL JURISDICTION)
[CIVIL APPEAL NO: D-02(IM)-2015-12/2015]
BETWEEN
2. MUHAMAD ISMAIL
(No. KP 4212165) ... APPELLANTS
AND
BETWEEN
AND
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(Dalam Mahkamah Tinggi Malaya di Kota Bharu
Dalam Negeri Kelantan Darul Naim, Malaysia
Guaman Sivil No: 22-41-2008
Antara
Dan
4. Sukri Hasyim
(No. KP: 761124-03-5667) … Defendan-Defendan
Coram:
JUDGMENT
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[3] The facts giving rise to a claim for damages are narrated by the
learned JC in his judgment in Bahasa Malaysia at p.9 of Rekod
Rayuan Tambahan as follows:
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[5] Dissatisfied with the award made by the Deputy Registrar, the
appellants filed an appeal to the Judge in Chambers who, on
23.11.2015, affirmed the order of the Deputy Registrar. The
appellants were ordered to pay the respondent as follows:
[6] Dissatisfied with the award of the High Court, the appellant
filed an appeal in part to this court regarding his loss of profit in the
sum of RM3,627,360.00 and payment of 8% interest on the total
amount of RM3,627,360.00 from the date of filing the Writ of
Summons on 17.3.2008 until full settlement.
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[8] To prove his loss of profit, the respondent pleaded the “Kertas
Kerja”, exhibit P2 in his amended statement of claim. In his
application for a bank loan facility, the respondent had submitted the
“Kertas Kerja”, exhibit P2 to the 1 st appellant. Initially the 1 st
appellant approved a loan of RM100,000.00 to the respondent and
subsequently agreed to increase the amount to RM150,000.00, thereby
making a total amount of RM250,000.00. According to the
respondent, during 6 months of his bankruptcy, an estimated net profit
stated in exhibit P2 was RM302,280.00: see Bank Bumiputra Malaysia
Bhd, Kuala Terengganu v. Mae Perkayuan Sdn Bhd & Anor [1993] 2
CLJ 495. Counsel for the respondent argued that the amount awarded
for loss of profit in the sum of RM3,627,360.00 was reasonable.
[9] Learned counsel for the appellants argued that exhibit P2 was
merely “Kertas Cadangan” prepared by the respondent’s friend and it
was hearsay and inadmissible as the friend was not called to testify.
At any rate, exhibit P2 is only an estimation which is nothing more
than a mere speculation, conjecture and projection which is not a
sufficient basis to prove loss of profits. The respondent had failed to
prove the actual loss as no audited accounts had been tendered to
support the claim. There was no supporting evidence to show how the
figures in the said projection in exhibit P2 were arrived at. There was
also no evidence shown as to the prospect of achieving the future
projected income: see Bank Muamalat Malaysia Bhd v. Sophisticated
Pipe Industry Production Sdn Bhd [2011] 9 CLJ 748.
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[11] The appellants also disputed the estimation for every 6 months
as stated in P2 for a period of 6 years from the year 1999 to the year
2005 (see Rekod Rayuan Jilid 2, Bahagian C) which amounted to
RM50,380.00 per month. Yet with this so-called profit, learned
counsel for the appellants argued that the respondent could not afford
to settle his loan to the 1 st appellant in the sum of RM96,057.05.
Going by his profit margin (if true), the respondent should have been
able to fully settle the loan with the 1 st appellant within 2 to 3 months
before the legal action was instituted against him.
[12] In his written submission, learned counsel for the appellants also
argued that the learned JC had erred inter alia:
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[14] As regards the rate of interest at 8% per annum from the date of
filing the Writ of Summons on 17.3.2008 to date of full settlement
was contrary to Order 42 Rule 12 of the Rules of Court 2012. The
proper interest should be at 5% per annum from date of judgment to
date of full settlement.
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[18] We, however, were inclined to agree with the submission for the
appellants as alluded to in paragraph 15 above that the actual loss of
profit by the respondent is RM22,150.00 (for a period of 6 months).
Thus, the actual loss suffered by the respondent is RM22,150.00 x 2 x
6 = RM265,800.00.
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[24] Under this head (exemplary damages), the respondent prayed for
an award of RM500,000.00.
[25] Thirdly, the award for aggravated damages has been succinctly
stated in Gatley on Libel & Slander, 11 th Edition Sweet & Maxwell at
pp 282 and 283. There are two situations to assess aggravated
damages, namely:
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[27] The RO/AO against the respondent were rescinded and annulled,
exhibit P19 when the police stepped in to conduct criminal
investigation based on a police report lodged by the respondent
alleging deceit, conspiracy and malicious prosecution by the
appellants. All the actions and conduct of the appellants had caused
exemplary, aggravated damages and injury to the respondent’s
reputation. They provided ample basis for exemplary and aggravated
damages to be awarded to the respondent.
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[31] The appellants replied that the amounts of RM50,000.00 for loss
of reputation and business, RM20,000.00 for exemplary damages and
RM20,000.00 for aggravated damages, making a total of RM90,000.00
awarded by the Deputy Registrar was sufficient and reasonable. The
appellants did not advance any appeal on the aforesaid heads of
damages.
[32] Having perused the Rekod Rayuan and heard the submissions of
both parties, we agreed with learned counsel for the appellants that
the actual loss of profit by the respondent was RM22,150.00 (for a
period of 6 months in a year). We therefore, allowed the appellants’
appeal in part, that is, the loss of profit of the respondent be varied to
a formula of RM22,150.00 x 2 x 6 = RM265,800.00. We set aside the
amount of RM3,627,360.00 awarded by the Deputy Registrar whose
award was affirmed by the learned JC.
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[34] We had also ordered each party to bear their own costs in
respect of this appeal. The deposit is to be refunded.
(ZAMANI A. RAHIM)
Judge
Court of Appeal
Malaysia
Counsel:
For the appellants - Zakiah Mohammed, Nurhayati Juha & Nor Akmar
Shamsuddin; M/s Akmar & Co
B3A-3, 3 rd Floor,
Block B, Dataran Palma,
Jalan Selaman 1,
Off Jalan Ampang,
68000 Ampang,
Selangor Darul Ehsan
For the respondent - Yusfarizal Yussoff, Wan Rohimi Wan Daud &
Mohd Faizi, Che Abu; M/s Tengku Amalin’ A-Ishah, Putri, Faizi &
Wan Rohimi
17-04-02 Block A,
Jalan Semarak Api 1,
Diamond Square,
Off Jalan Gombak,
53000 Kuala Lumpur
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Kamaruzaman bin Omar & Ors v. Yakub bin Husin & Ors [2014] 1
CLJ 987
Sime UEP Properties Bhd v. Woon Yoke Lin [2002] 3 CLJ 719
Dato’ Paduka Husam Musa v. Norzula Mat Diah & 2 Ors [2014] 1
LNS 1411
Suzana Md Aris v. DSP Ishak Hussain & Ors [2011] 1 CLJ 226
15
J
[2017] 1 LNS 1754 Legal Network Series
ANTARA
DAN
ZUKERI IBRAHIM
(NO. K/P: 720506-03-5741 ... RESPONDEN
ANTARA
DAN
CORAM:
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INTRODUCTION
[1] This is an appeal arising from the decision of the learned Judge of
the High Court at Kota Bharu dated 24 th January 2016 which dismissed the
Appellant’s claim for defamation with costs of RM10,000.00.
[2] After having perused the appeal records, the written submissions of
the respective parties as well as hearing the oral arguments on the issues
raised, we allowed the appeal with costs of RM20,000.00 herein and below.
We also ordered damages in the sum of RM70,000.00 to the Appellant.
[4] For ease of reference the parties will be referred to as they were
described in the High Court.
[5] The Plaintiff, Abu Hassan bin Hasbullah was at all material times a
senior academician/lecturer and political analyst and also the Dean of the
Faculty of Creative Technology and Heritage (“FTKW”) at the University
Malaysia Kelantan (“UMK”). The Plaintiff was the superior of the
Defendant in FTKW.
[6] The Defendant, Zukeri bin Ibrahim was at all material times a
lecturer on probation in FTKW.
[7] The Plaintiff had commenced an action against the Defendant for the
tort of defamation. The Plaintiff claimed that the Defendant had authored
two (2) offensive emails dated 29 th October 2014 and 30 th October 2014
respectively (“the impugned emails”) (see pages 841-844, Part B of
Appeal Record (“AR”)) and caused the same to be published via the
Defendant’s UMK email address ie, zukeri@umk.edu.my to various groups
of people namely:
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[8] The Plaintiff contended that the words in the impugned emails as
underlined, in their natural and ordinary meaning, were defamatory of the
Plaintiff and in their natural and ordinary meaning meant and were
understood to mean as described in paragraph 9 of the Statement of Claim
(see pages 36-38 of Part A, Volume 1 of AR).
[9] These impugned emails were calculated to disparage the Plaintiff and
were issued with malicious intent and published and circulated to the
above-stated groups.
[12] The Plaintiff had also come to know on 4 th November 2014, a group
of lecturers and students from his faculty had assembled and signed a
memorandum demanding for his removal as the Dean of the FTKW.
[13] Subsequent to the said impugned emails and text messages, there had
been a barrage of articles, news, reports, statements posted almost daily
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since 5 th November 2014 on online news portal Suara TV stating that Suara
TV had been informed by an individual who is a lecturer in UMK that the
Plaintiff had committed fraud, that a police report had been lodged against
him in Bachok Police Station, Kelantan on 1 st November 2014 and yet no
steps were taken against the Plaintiff.
[14] Vide the Plaintiff’s solicitors letter dated 20 th November 2014, the
Plaintiff demanded the Defendant to withdraw and / or retract the two
impugned emails, render an apology to the Plaintiff as well as to give an
undertaking that he would not repeat similar publication of defamatory
statements concerning the Plaintiff to the public at large. The Plaintiff had
also demanded that the Defendant ceases to cause any further threats and
harassments to the Plaintiff.
[15] The Plaintiff then commenced this Suit seeking for, amongst others,
injunctive relief, damages for defamation, interest and costs.
[17] The case proceeded by way of a full trial with three witnesses for the
Plaintiff and four witnesses for the Defendant having testified. After
perusing the respective submissions filed therein and having heard oral
arguments of both parties, the learned Judge accepted the Defendant’s
defences and dismissed Plaintiff’s claim with costs.
[18] Aggrieved by the said decision, the Plaintiff then appealed to this
Court against the whole decision.
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(b) Although the Plaintiff’s thesis was not 100% copied, there
were certain parts that were copied and the references and / or
sources of which were not stated and / or quoted.
(c) The Defendant was justified in making the remarks that the
Plaintiff had created on his own, a University known as
“University Manggis”, in order to give the impression certain
insertions or materials he fabricated and / or cooked up in his
thesis were actually sourced from credible and influential
academic references.
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(g) The defamatory remarks were true, which were disclosed only
upon the investigation conducted by the Defendant personally.
OUR DECISION
The law
[20] We were mindful of the limited role of the appellate court in relation
to findings of facts made by the court of first instance.
[21] In the course of that, we had sought guidance from the very often
quoted case of Lee Ing Chin @ Lee Teck Seng v. Gan Yook Chin [2003] 2
MLJ 97 where the Court of Appeal held as follows:
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[22] Reference is also made to the decision of the Federal Court in Gan
Yook Chin v. Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the
Federal Court held that the test of “insufficient judicial appreciation of
evidence” adopted by the Court of Appeal was in relation to the process of
determining whether or not the trial court had arrived at its decision or
findings correctly on the basis of the relevant law and the established
evidence.
[23] In the above case, the Federal Court had also stated, the Court
hearing the appeal is entitled to reverse the decision of the trial judge after
making its own comparisons and criticisms of the witnesses and of its own
view of the probabilities of the case. It is also entitled to examine the
process of evaluation of the evidence by the trial court and reverse the
decision if it is wrong.
[24] At the end of the case, the trial judge has a duty to explain how the
said court had come to its findings and /or how it appraised the evidence
and issues which will determine the outcome of the case before it. In doing
so the Judge need not explain or identify every factor that he had
considered. If the learned Judge failed to do so, his decision can be set
aside (see English v. Emery Reimbold & Strick Ltd, DJ & C Whithers
(Farms) Ltd v. Ambic Equipment Ltd, Verrechia (trading as Freightmaster
Commercials) v. Commissioner of Police Metropolis [2002] EWCA Civ
605, [2002] 3 ER 385).
[25] The appellate court must be slow to interfere with the findings made
by the trial court unless if it can be shown there was no judicial
appreciation of the evidence adduced before it (see Hamit Matusin & Ors
v. Penguasa Tanah dan Survey & Anor Appeal [2006] 2 CLJ 251; Tay
Kheng Hong v. Heap Moh Steamship Co Ltd [1964] MLJ 87).
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[27] The Plaintiff’s case against the Defendant was premised on the tort
of defamation. The Plaintiff had pleaded that the Defendant had caused to
be published the impugned emails as in Appendix 1 and Appendix 2
attached to the Plaintiff’s Statement of Claim (“SOC”) made on 29 th
October 2014 and 30 th October 2014 respectively. In Appendix 1 there
were 150 plus 8 defamatory statements having been made (see pages 82
to100 of Volume 1 of AR). Whilst in Appendix 2, another 155 plus 8
defamatory statements were made (see pages 101 to 124 of Volume 1 of
AR).
[29] Despite the magnitude of the complaints made against the Defendant
as evidenced in the impugned emails, the learned Judge had reduced the
complaints to only two issues, the non-existence of “University Manggis”
which was quoted in the Plaintiff’s thesis and the unaccredited programmes
offered by UMK. The rest of the complaints had been disregarded.
[30] The learned Judge had also made a finding that there was plagiarism
in the Plaintiff’s thesis despite the fact that the impugned emails made no
reference to the complaint of plagiarism. The learned Judge had even
proceeded to make a finding that the Defendant could rely on the defence
of justification and qualified privilege when the complaints of the Plaintiff
in the impugned emails did not touch the topic of plagiarism.
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[32] As can be seen from the above-quoted paragraph 20 of the GoJ the
learned Judge made a finding that the words as underlined in the impugned
emails were true. However, at paragraph 14, 15 and 16 of the GoJ, the
learned Judge focused on the issue of plagiarism, at paragraph 17, on the
issue surrounding the Plaintiff’s reference to materials from a non-existent
university known as University Manggis in his thesis and at paragraph 18
on the non-accredited courses. There was no mention of the rest of the over
200 defamatory statements as underlined in the impugned emails.
[33] We were of the view that in arriving at his determination, the learned
Judge did not address the facts in totality and / or make a finding if those
underlined words were defamatory of the Plaintiff based on the Plaintiff’s
pleaded case and the evidence of the witnesses before him.
[34] Upon our perusal of the records of appeal, we found that the learned
Judge did not apply settled principles of law and did not address the three
stages that must be satisfied before resolving whether there is defamation
and whether the defences apply.
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[35] Despite there is a plethora of cases to guide the learned Judge on how
to resolve the issues before His Lordship when faced with cases of this
nature, the learned Judge went on a frolic of his own and took a very
simplistic approach to resolve the issues before him.
[36] In a defamation case, the learned Judge has a duty to rule on the three
essential ingredients of the tort of defamation before he proceeds to decide
on the defences pleaded by the Defendant in his Defence. Firstly, the
learned Judge ought to determine if the impugned emails were capable of
bearing the defamatory meaning as ascribed in paragraph 9 of the SOC.
Secondly the learned Judge ought to examine if the impugned emails
referred to the Plaintiff. Lastly the learned Judge ought to have resolved if
the impugned emails were published to a third person.
[37] We could not detect anywhere in the GoJ this task was undertaken
by the learned Judge in the case before His Lordship, especially with
respect to whether the words as underlined in the impugned emails were
capable of bearing the defamatory meaning as ascribed in paragraph 9 of
the SOC and whether there was publication. Despite a sum of 158 and 163
defamatory statements respectively having been made in the impugned
emails, the learned Judge had not made any ruling on these statements. The
learned Judge was selective and had ruled only on the three issues as
highlighted above, one of which was not even the subject matter of the
Plaintiff’s complaint in the SOC.
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[38] We also observed the learned Judge did not address the third
ingredient of the tort of defamation, the publication of the impugned emails
to a third Party as required of him in resolving cases premised on the tort
of defamation.
[39] We are of the view that in a case of this nature, the learned Judge
ought to have evaluated the evidence before His Lordship and make a
finding on each and every ingredient of the tort of defamation before going
to the defences. Our view is supported by the case of Chok Foo Choo v.
The China Press Bhd [1999] 1 CLJ 461which states as follows:
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[41] From the above paragraph, it would appear that the learned judge
was not satisfied that the Plaintiff had proven the first ingredient of the tort
of defamation. However, upon perusal of the GoJ, we found that the
learned Judge proceeded to make a ruling that the Defendant had
successfully raised the defences of justification, qualified privilege and fair
comment. If the learned Judge was of the opinion the first element of the
tort of defamation had not been proven, the learned Judge ought to have
dismissed the Plaintiff’s case as the Plaintiff had failed to prove his case
on the balance of probabilities and ought not to have made a finding that
the Defendant had successfully raised the defences as pleaded in his
Defence. The learned Judge seemed to be confused on the manner the case
before him ought to be resolved. Further, how could the learned Judge say
“Sama seperti isu kedua, perkara ini juga tidak diperhalusi dan
dibincangkan secara terperinci di dalam penghakiman ini memandangkan
elemen pertama telah gagal dibuktikan oleh pihak Plaintiff.” when the
learned Judge did not decide if the 158 and 163 underlined words
respectively in the impugned emails, with the exception of the two we
mentioned above, were defamatory of the Plaintiff and were calculated to
expose the Plaintiff to hatred, ridicule or contempt in the minds of
reasonable man or whether these words tend to lower the Plaintiff in the
estimation of right thinking members of society generally.
[42] The learned Judge erred in deciding in the manner he did, as the
Plaintiff need not prove that the defamatory words were false in order to
prove his case as the law presumes that the defamatory words were false
(see Miles v. Logan (1851) 1 Ky 80 (Civ); Abdul Rahman Talib v.
Seenivasagam & Anor [supra]).
[43] The Plaintiff only needs to prove the publication of the impugned
emails. “It is not part of the plaintiff’s case in an action of defamation to
prove that the defamatory words are false for the law presumes this in his
favour.” (Abdul Rahman Talib v. Seenivasagam & Anor [supra]).
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[44] In Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor [2008] 2
CLJ 814 the Court provided the guidelines on how a defamation case ought
to be resolved:
(h) Whether the article contained the gist of the plaintiff’s side of
the story;
[45] On our perusal of the GoJ, we observed that the learned Judge failed
to follow the settled principles of law and had not made any findings on
the matters as discussed above. We were of the view, the learned Judge
erred in not applying the principles set out by the law in resolving the
issues before him.
[46] Only upon having been satisfied that all the three ingredients of the
tort of defamation having been established by the Plaintiff, then the next
step is for the learned Judge to examine if the Defendant could rely on the
defences pleaded in the Defence.
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[47] The Defendant pleaded that the words underlined in the impugned
emails were true and relied on the defence of justification.
[48] At paragraphs 42-44 of his Defence, the Defendant pleaded that the
impugned emails were “fair comments” on matters of “public interest”
communicated to members of UMK, FTKW as well as UMK’s students.
[49] The Defendant also relied on the defence of qualified privilege and
alleged that the impugned emails were a proposal to resolve pending
problems concerning the administration and management of FTKW and the
alleged wrongdoings of the Plaintiff in the said management.
Defence of Justification
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[51] In Datuk Seri Anwar Ibrahim v. Utusan Melayu (M) Bhd & Anor
[2013] 3 MLJ 534, the Court held:
[52] The Defendant argued that the impugned emails were true in fact and
substance and the same were sent to persons who had the essential interest
in receiving the same and that he has the right to send the same. We agree
with the Plaintiff that the defence of justification and qualified privilege
was wrongly accepted by the learned Judge due to the following reasons as
highlighted by the Plaintiff:
(a) The impugned emails were addressed to third parties who did
not have an interest or duty to receive the same.
(b) The impugned emails were not true nor proven to be true.
(c) When the Defendant wrote the two impugned emails he was a
probationary lecturer and there was a clear avenue and / or
procedure for complaints to be addressed on matters
concerning FTKW. In fact, the Defendant as well as his
witnesses had confirmed under oath this fact. In view of the
aforesaid, the Defendant did not have the duty to send the
impugned emails in the way he did.
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[53] As shown above, other than the two mentioned issues herein, the
learned Judge did not address the rest of the complaints in the impugned
emails in his GoJ which form the bulk of the complaints. There was a sum
of 155 plus 8 and 163 allegedly defamatory statements respectively having
been identified in Appendix 1 and Appendix 2 which the learned Judge had
totally disregarded. Despite the magnitude of the complaints having been
pleaded in the SOC, the learned Judge chose to ignore these and proceeded
to rule only on two statements and another complaint which was not
pleaded. Further there was no analysis of the evidence adduced before the
learned Judge with respect to the bulk of the complaints. If these
complaints were true or otherwise it could not be ascertained as the learned
Judge had ignored these complaints completely. The learned Judge erred
in doing so as we have mentioned earlier, the learned Judge did not make
a finding if the bulk the complaints in the impugned emails were
defamatory of the Plaintiff.
[54] How could the learned Judge make a finding that the impugned
emails were true when he had only considered two of the 155 plus 8 and
163 complaints as underlined in Appendix 1 and Appendix 2 of the SOC
and left out the bulk of the complaints as shown above. The learned Judge
fell into an error when he resolved that the Defendant had successfully
raised the defence of justification when there was no explanation afforded
with regards to the bulk of the complaints.
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[55] The defendant did not prove justification or the words as underlined
in the impugned email were true. A Defendant who relied on the defence
of justification must substantially justify the statements by proving their
precise truth and every defamatory fact as alleged. The Defendant cannot
rely on his honest believe that the statements were true.
(see Abdul Rahman Talib v. Seenivasagam & Anor [supra]; “The law
of Defamation in Singapore & Malaysia” by Keith R. Evan 2nd
Edition, Butterworth at pages 49-54)
Fair Comments
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150 plus 8 in Appendix 1 and 163 in Appendix 2, except for the two
complaints discussed herein. Hence, the learned Judge’s finding that the
complaints of the Plaintiff were true in substance could not be correct. The
learned Judge ought to have considered if the defence of fair comment
could be relied by the Defendant and only after having found that the 150
plus 8 and 163 complaints were true in substance, then and only then the
learned Judge could decide if the defence of justification is available to the
Defendant. As the learned Judge had failed to undertake this task, the rests
of the complaints were not proved as true.
[59] Even for the two complaints with respect to reference to a non-
existent university as in University Manggis and the unaccredited courses,
which the learned Judge found to have been proved, there was no evidence
before the learned Judge that these complaints were in fact true so as to
afford the protection of the defence of justification to the Defendant. With
respect to University Manggis the evidence showed that the reference was
not to University Manggis but a blog site known as “Universiti.Manggis”.
Whilst the matters concerning the unaccredited courses, the Defendant was
not the person responsible as the approvals of programmes and the
decisions were made by the Chancellor, the Senate of UMK and the
Ministry of Education.
[60] We were guided by the case of Tun Datuk Patinggi Haji Abdul
Rahman Ya’kub v. Bre Sdn Bhd [supra] which held as follows:
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[62] What is fair comment had been defined by Gatley on Libel and
Slander, 9 th Edition as follows:
[63] As the learned Judge did not make a finding if the 150 plus 8 and 163
complaints in Appendix 1 and Appendix 2 were defamatory of the Plaintiff
how could the learned Judge go on to say that the complaint were fair
comment. Our scrutiny of the complaints stated in the impugned emails,
showed that these were not comments as defined in the Gatley but
statement of fact which could not be termed as comment for the purpose of
the defence of fair comment. In Lee Kuan Yew v. JB Jayaretnam [1979] 1
MLJ 281 the court held that “a libelous statement of fact is not a comment
or criticism of anything”. Therefore, based on the Defendant’s pleadings,
it is not opened to the Defendant to raise defence of fair comment
concerning the public at large (see RV Flower [1880] 44 JP 377).
[64] On the point of pleading, we observed that the Defendant had not
complied with the provision of Order 78 of the Rules of Court 2012. The
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[65] Based on the foregoing, it is our humble view, the learned Judge
erred in law and in fact in his finding that the defence of fair comment was
available to the Defendant.
Qualified Privilege
[66] The Defendant had also relied on the defence of qualified privilege.
In Adam v. Ward [1017] AC 307 at page 334, Lord Atkinson stated as
follows:
[67] In John Lee & Anor v. Henry Wong Jen Fook [1981] 1 MLJ 108 it
was held:
[68] Turning now to the case at hand, where the Defendant pleaded that
the impugned emails were sent to the persons who had an essential interest
in receiving the same and that he had the right to send these impugned
emails. We observed that the impugned emails were sent by a person who
did not have the legal duty and interest or a duty, legal or social or moral,
to make it and the recipient of the impugned emails did not have a
corresponding interest or duty to receive it.
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[69] At the time the impugned emails were sent the Defendant was only a
probationary lecturer. At the material time, there is already in place a
mechanism in UMK for matters such as this to be referred to. The
Defendant and his witnesses had confirmed this in their testimony in court.
Therefore, the Defendant did not have the legal duty and interest or a duty,
legal or social or moral to send the impugned emails to the three email
addresses stated herein. Further, it was shown via evidence there was a set
of procedure for sending emails on the UMK email address but this was
not followed by the Defendant. In fact, the Defendant had breached the
guidelines issued by UMK on the use of the email address. The Defendant
and his witnesses admitted that what the Defendant did was not in
accordance with the guidelines issued by UMK.
[70] The impugned emails were statement of facts that were not true. The
Defendant pleaded that it was based on his personal investigation. Other
than what was pleaded nothing more was shown and / or proved. Issues
such as racism, corruption, committing illegal acts and ill-treating staff
were raised by the Defendant against the Plaintiff, however, no findings
had been made by the learned Judge with respect to the truth of the matter.
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Malice
(a) The Defendant had sent malicious and offensive text messages
to the Plaintiff. This was admitted by the Defendant.
(b) The Defendant had liaised with and forwarded the impugned
emails to an online news blog known as Suara TV.
(c) The Defendant had liaised and forwarded the impugned emails
to a student blog post known as “Pemudatekat.blogspot”.
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(f) The Defendant had lodged a police report against the Plaintiff.
(g) The Defendant continued to defame the Plaintiff even after the
legal notice was issued.
(h) The Defendant sent a letter to Duli Yang Maha Mulia Sultan
of Kelantan without the approval of UMK and using UMK’s
letter head without the approval and the authority of UMK.
LIABILITY
[74] Having perused the appeal records and heard the respective
submissions, we hold and conclude, on the balance of probabilities the
Defendant in this action is liable to the Plaintiff. We are satisfied that on
the balance of probabilities the words as underlined in the impugned emails
are capable of and are defamatory of the Plaintiff. These words in their
natural and ordinary meaning, meant or were understood to bear the
meaning as ascribed by the Plaintiff in paragraph 9 of the SOC. We are
satisfied, the words as underlined in the impugned emails which referred
to the Plaintiff were published to third parties. Further we are not satisfied
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DAMAGES
[76] The allegations against the Plaintiff were very serious imputing to
him, inter alia, criminal act, dishonesty, lack of credibility, greed and
cheating. These allegations were highly libelous to the Plaintiff. Any award
to be awarded must be sufficient to vindicate the gravity of the allegations
against the Plaintiff.
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[78] The Defendant had never expressed any regret and or remorse on the
alleged defamatory statements which had been published. Neither had the
Defendant apologized for the said publication.
CONCLUSION
[81] Having examined the pleadings, the notes of proceedings, and having
heard the respective learned Counsels, we found that the learned Judge had
not given sufficient judicial appreciation of the evidence both testimonial
and documentaries as well as the established principles of law concerning
the tort of defamation. We were constrained to hold that the learned Judge
failed to judicially appreciate the evidence and / or the law presented
before him so as to render his decision plainly wrong and upon curial
scrutiny it merits our appellate intervention. Hence, we unanimously
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allowed this appeal and set aside the order of the learned Judge dated 24 th
January 2016 with cost of RM20,000.00 subject to payment of allocator
fees. The deposit is refunded to the Plaintiff.
(ASMABI MOHAMAD)
Judge
Court of Appeal, Malaysia
Counsel:
For and on Behalf of the Appellants - Malik Imtiaz Sarwar, Renu Zechariah
& Cheryl Kwan; M/s Rosley Zechariah
Advocate & Solicitor
17-5, 17 th Floor, Oval Tower @ Damansara
(Menara Permata Damansara)
685, Jalan Damansara
60000 Kuala Lumpur
[Ref: RZ/A1894/AHH/Sub[COA]/rz]
For and on behalf of the respondent - Hisham Fauzi; M/s Hisham Fauzi &
Associates
Advocate & Solicitors
Tingkat 2, Kompleks Niaga Lembaga Tabung Haji
Jalan Dato’ Pati
15000 Kota Bharu
Kelantan
[Ref: HAKB/CIV/103/14]
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Lee Ing Chin @ Lee Teck Seng v. Gan Yook Chin [2003] 2 MLJ 97
Gan Yook Chin v. Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309
English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605
Hamit Matusin & Ors v. Penguasa Tanah dan Survey & Anor Appeal
[2006] 2 CLJ 251
Kian Lup Construction v. Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32
Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor
[1973] 2 MLJ 56
Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v. Bre Sdn Bhd [1996] 1
MLJ 399
Irene Fernandez v. Utusan Melayu (M) Sdn Bhd & Anor [2008] 2 CLJ 814
Chok Foo Choo v. The China Press Bhd [1999] 1 CLJ 461
Datuk Seri Anwar Ibrahim v. Utusan Melayu (M) Bhd & Anor [2013] 3
MLJ 534
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John Lee & Anor v. Henry Wong Jen Fook [1981] 1 MLJ 108
AJA Peter v. OG Nio & Ors [1979] 1 LNS 1; [1980] 1 MLJ 226
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ANTARA
DAN
PENGHAKIMAN
Pengenalan
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(h) “Tidak adakah akal dan hati perut dia memikirkan nasib
dan masa depan anak bangsanya sendiri?”
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(f) Khai K’Roy: “Koi kenal dia sebab koi pernah jumpa
dengan dia atas urusan tanah, tapi masa jumpa ngan dia
baik ngat orangnya bercakap pun sopan santun betul tak
tahulah pulak di sebalik sopan santun ada perangai
sebegini pulak”;
(k) Amin Firdaus Roslee: “Saya tlg jawab, sebab deal dgn
tokey pasir masyukkkkkk… Deal dgn tokey sangkar dapat
ikan sekali makan”;
(l) Mohd Tohir Ali: “Kalau minta sesuatu itu tak semestinya
dapat itu namanya taka da rezeki… ngapa melatah bila tok
dapat… pendek ceritanya mengikut peraturan tanah…
adalah dilarang memasuki atau mengusahakan tanah selagi
ianya belum diluluskan dgn erti kata lain mengusahakan
secara haram adalah salah di sisi undang-undang utk
menjawab kenapa En Khaidir Ahmad dapat surat …”; dan
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(b) Zul Ajoi: “Boleh pakai evo ni byk tul gajinya…. Faham2
sendiri lah ohhh!!! Lupa dia ada bisness Pasir kat sangkor
ikan Khaidir baru nak start…. Hahaha”:
[15] Defendan juga membuat aduan kepada pihak YAB Menteri Besar
Pahang dan menyebabkan Plaintif diarahkan memberikan penjelasan
yang mana Plaintif telah berbuat sedemikian melalui satu laporan
lengkap bertarikh 20.5.2015.
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tersebar luar dan diketahui orang ramai kerana terdapat beribu ‘like’ dan
ianya di ‘tag’ oleh Defendan kepada rakan-rakan mukabuku Defendan
termasuk Menteri dan pegawai menteri selain ianya turut dikongsi oleh
rakan-rakan mukabuku Defendan di halaman mukabuku mereka masing-
masing adalah portal berita yagn paling dikunjungi.
Pembelaan Defendan
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Beban Pembuktian
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[34] Prinsip undang-undang ini boleh dilihat dengan jelas dalam kes
Kian Lup Construction v. Hong Kong Bank Malaysia Bhd. [2002]
7CLJ 32, Ayob bin Saud v. TS Sambanthamurthi [1989] 1 CLJ (Rep)
321, Chong Swee Huat & Anor v. Lim Shian Gee [2009] 4 CLJ 113
CA; [2009] 3 MLJ 665 CA, Subramaniam Paramasivam v. Courts
Mammoth Berhad & Anor [2010] 1 LNS 904.
[35] Dalam kes Chok Foo Choo v. The China Press Bhd. [1999] 1
CLJ 461, Mahkamah Rayuan memutuskan seperti yang berikut:
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“Held
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(i) justifikasi;
[43] Dalam kes Syarikat Bekalan Air Selangor Sdn. Bhd. [supra], YA
Azhar Mohamed HMP memutuskan:
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[44] Dalam kes Chong Swee Huat & Anor v. Lim Shian Ghee (t/a L &
G Consultants & Education Services) [2009] 3 MLJ 665; [2009] 4
AMR 1, Zainun Ali JCA telah menyatakan seperti berikut:
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terhadap Plaintif sama ada secara semula jadi dan biasa atau secara
innuendo.
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It follows from the fact that the context and circumstances of the
publication must be taken into account, that the plaintiff cannot
pick and choose parts of the publication which, standing alone
would be defamatory. This or that sentence may be considered
defamatory, but they may be other passages which may take
away the sting.”
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[58] Berkaitan dengan elemen (ii) iaitu sama ada pengataan itu
merujuk kepada Plaintif, adalah menjadi fakta dan keterangan yang
tidak dipertikaikan bahawa kata-kata yang diterbitkan iatu merujuk
kepada Plaintif dan pengaduan oleh Defendan adalah berkaitan
Plaintif. Malah Defendan sendiri tidak mempertikaikan kata-kata
fitnah itu ditujukan kepada Plaintif. Di antara pengataan-pengataan
tersebut ialah:
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(b) Tie Manaf: “Apa ke bangang sgt ‘tuan pegawai tu…”; dan
[60] Dalam kes Pakianathan v. Jenni Ibrahim & Another Case [1988]
1 CLJ Rep 233, Mahkamah Agong memutuskan seperti yang berikut:
Ulasan Saksama
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dan elemen awam. Defendan juga mengatakan dia tidak berniat jahat
bila menerbitkan gambar-gambar Plaintif dan anaknya di mukabuku
Defendan.
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Perlindungan Bersyarat
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ntuk kepentingan awam. Kecuali Defendan, tidak ada orang lain yang
mengambil tindakan yang menyalahi undang-undang sepertinya.
[74] Aduan yang dibuat kepada Menteri Besar hanyalah satu rekaan
dan tidak berasas kerana masalah ini tidak dialami oleh penternak-
penternak sangkar ikan yang lain. Walaupun Defendan mendakwa
penternak-penternak lain juga menghadapi masalah yang sama tetapi
tidak ada bukti dikemukakan oleh Defendan untuk untuk menyokong
dakwaannya. Defendan hanya membangkitkan satu dakwaan kosong
yang tidak disokong oleh mana-mana saksi dan keterangan
dokumentari.
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[76] Oleh kerana aduan yang dibuat oleh Defendan lebih bersifat
peribadi dan tidak melibatkan elemen awam, mahkamah berpendapat
pembelaan perlindungan bersyarat juga tidak terpakai kepada
Defendan kerana pengataan-pengataan itu hanya dimuat naik oleh
Defendan setelah wujud masalah dengan Plaintif dan bukan masalah
Plaintif dengan penternak-penternak yang lain dan ia hanya dimuat
naik setelah Plantif merobohkan papan tanda dan sangkar ikan
Defendan sahaja. Mahkamah juga berpendapat pembelaan ini tidak
terpakai kerana Defendan jelas telah melanggar undang-undang kerana
menduduki tanah kerajaan tanpa kebenaran pihak berkuasa negeri dan
menjalankan aktiviti penternakan ikan tanpa lesen tetapi menyalahkan
pihak berkuasa apabila mengambil tindakan undang-undang
terhadapnya. Perbuatan Defendan adalah sama seperti kata pepatah
melayu “menangguk di air keruh dan lempar batu sembunyi tangan”.
[77] Mahkamah tidak fikir telah wujud satu pemikiran atau falsafah
hidup yang baru di mana terdapat kewajipan undang-undang, sosial
dan moral kepada Defendan untuk membuat aduan kepada Menteri
Besar di atas isu Plaintif atau pihak berkuasa negeri telah mengambil
tindakan undang-undang ke atasnya atau ke atas sesiapa sahaja kerana
didapati telah melanggar undang-undang. Walau apapun yang
dikatakan oleh Defendan, tindakannya adalah jelas bertentangan
dengan undang-undang, moral, sosio-budaya masyarakat dan
kepentingan awam. Luahan rasa terkilan dan ketidakpuasan hati
Defendan tidak berasas kerana Plaintif hanya menjalankan tugas dan
tanggungjawabnya sebagai Penolong Pentadbir Tanah untuk
menguatkuasakan undang-undang seperti yang diperuntukkan di
bawah Kanun Tanah Negara. Oleh itu, aduan yang dibuat kepada
Menteri Besar bukanlah aduan benar yang diterbitkan dan lindungi di
bawah perlindungan bersyarat. Aduan yang dibuat kepada Menteri
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“Redress of grievance.
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terdapat dalam kes-kes yang dirujuk oleh Plaintif iaitu Lim Guan Eng
[supra], Datuk Seri Utama Dr Rais Yatim [supra].
Kuantum
[81] Di dalam kes Datuk Seri Utama Dr. Rais bin Yatim [supra]
Mahkamah telah mengambil kira beberapa faktor di dalam
menentukan kuantum ganti rugi iaitu:
(f) The whole conduct of the Defendant from the time the
libel was published down to the very moment of the
verdict.
[82] Dalam kes Ling Wah Press (M) Sdn. Bhd. & Ors v. Tan Sri
Dato’ Vincent Tan Chee Yioun & other appeals [2000] 3 CLJ 728,
Mahkamah Persekutuan memutuskan seperti yang berikut:
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Konklusi
KAUNSEL:
Bagi pihak plaintif - Adnan Seman @ Abdullah; T/n Adnan Sharida &
Associates
Advocates & Solicitors
No. 3-2-2A & 3-2-2B
Jalan Medan PB 2A, Seksyen 9,
43650 Bandar Baru Bangi
Selangor Darul Ehsan
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Utusan Melayu (Malaysia) Bhd. v. Dato’ Sri Diraja Hj. Adnan Hj.
Yaakob [2016] 5 CLJ 857
Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 3 MLRH 124
Chong Swee Huat & Anor v. Lim Shian Gee [2009] 4 CLJ 113 CA;
[2009] 3 MLJ 665
Chok Foo Choo v. The China Press Bhd. [1999] 1 CLJ 461
Syarikat Bekalan Air Selangor Sdn. Bhd. v. Tony Pua Kiam Wee
[2015] 8 CLJ 477
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Sivabalan a/l P Asapathy v. The New Straits Time Press (M) Sdn. Bhd.
[2010] 9 MLJ 320
Datuk Seri Anwar Ibrahim v. Wan Muhammad Aziz bin Wan Deris
[2014] 9 MLJ 605
Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ Rep 233
Ling Wah Press (M) Sdn. Bhd. & Ors v. Tan Sri Dato’ Vincent Tan
Chee Yioun & other appeals [2000] 3 CLJ 728
Chin Choon @ Chin Tee Fut v. Chua Jui Meng [2005] 3 MLJ 494
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