DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA, (BAHAGIAN SIVIL) gs BETWEEN DATUK SERI ANWAR BIN IBRAHIM -+sPLAINTIFF AND 1. DATUK S, NALLAKARUPPAN 2. UTUSAN MELAYU (MALAYSIA) BHD. 3, DATUK ABDUL AZIZ BIN ISHAK + DEFENDANTS STATEMENT OF DEFENCE OF THE 1ST DEFENDANT PART A THE PARTIE: 1. Paragraph 1 of the Statement of Claim is admilled subjec! fo the qualification that the Plaintiff's international reputation, (if any], is limited 4 certain chosen quarters and the 1 Defendant will contend that the Piaintiff is a person with proven bad character and a person without good, reputation. The Plaintiff has been the subject of criminal convictions on 4 charges of conupt practice under Section 2(1] of the Emergency (Essential Powers) Ordinance No, 22 of 1970. His conviction has been upheld by the Federal Cour, the apex court of Malaysia. 1.1 Further, the 1s Defendant will contend that various courts in Malaysia from the High Court fo the Federal Court had made findings of fact that the Plaintiff has been involved in acts ofbuggery and homosexual activities as pleaded in paragraphs 10.1 fo 10.3 herein Further, the 1 Defendant will contend that various judicial pronouncements have been made faking cognisance of the above said cases including the cases mentioned at paragraphs 10.1 to 10.7 , and in porticular in the following cases: {0} Dato’ Seri Anwar bin torahim v Tun Dr. Mahathir bin Mohamed {High Court Kuala Lumpur Civil Suit No: $2-33-07-1999); (b) Dato’ Seri Anwar bin Ibrahim v Tun Dr. Mahathir bin Mohamed (Court of Appeal Civil Appeal No. W-02-663-99); (c} Dato’ Seri Anwar bin Ibrahim v Tun Dr. Mahathir bin Mohamed (Federal Court Civil Application No. 08-2-2001 (W]) {d) Dato’ Seri Anwar bin Ibrahim v Tun Dr. Mahathir bin Mohamed (High Court Kuala Lumpur Suit No, $4-23-15-2006) that the Plaintiff's reputation as a homosexual / gay / bisexual is 10 well established and there can be no cause of action by the Plaintit with respect to the same or similar subject matter. The 1 Defendant will contend as part of the substantive defences and/or mitigation of damages (if any] that in view of the above cases and the bad reputation of the Plaintiff that these cases have brought upon the Plaintiff, the Plaintiff no longer enjoys a good reputation in the spoken context, The 1 Defendant will contend tha? the Plaintiff's reputation in the Malaysian community is so. tomished and sulied before the publication of these impugned passages that no further reputational harm can fake piace againstthe Plaintiff. The Plaintiff, in effect, is “libetproof” before the publication of the impugned passages. 2, Paragraph 2 of the Statement of Claim is admitted. It is further stated that the 1s Defendant is the President of the Malaysian Indian United Party {MIUP) and a member of the Dewan Negara who has, inter alia, public duties, functions and responsiolities, and in particular, owes a duty to expose wrongdoings especially by public figures such as the Plaintiff. 3. With respect to paragraph 3 and 4 no comment is proposed as they do not have relevance to the 1*' Defendant. It is however denied that the I Defendant is the owner, publisher and printer of Utusan Malaysic. PART BACKGROUND 4. Referring to paragraph § (a} and § (b} of the Statement of Claim, the 1 Defendant avers as follows: 4.1 The 1 Defendant admits that there was an article entitled “Anwar biseksual, {ak boleh jacii Keluc Pembangkang ~ Nolia” on the front page Utusan Malaysia dated 20.3.2012 (hereinatter referred fo as “the 1* impugned passage"). The 1 Defendant further admits that the 1 impugned article was about the Piainiiff, 42 The 1* Defendant admits that there was an arlicle entilled “Nallakaruppan fuduh Anwar biseksual” on page 6 of Utusan Molaysia dated 20.3.2012 hereinatier referred to as “ihe 2 impugned passage"). The 1 Defendant further admits that the 24 impugned article was also about the Plaintiff.aes 43. The 1* Defendant denies that any defamatory / libellous comments were falsely uttered conceming the Plaintiff on the 1% and 2% impugned passages and puls the Plaintiff to strict proof thereof 4.4 The 1 Defendant also denies that words uttered conceming the Plaintiff on the 1+! and 2" impugned passages were made with malicious intent and puts the Plaintiff to strict proof thereof, 4.5 The 1 Defendant admits that the words published in the 1 and 2n impugned possages were in substances uttered by him and that the content of the said Arficle in paragraphs 5 {a) and 5 {b) of the Statement of Claim are substantially true in their natural and ordinary meaning and the 1 Defendant shall seek, inter alia, to justify the contents thereof. The 1" Defendant will refer to the entire Utusan article dated 20.3.2012 entitled “Nallakaruyppan tuduh Anwar biseksual" and / or the full context under which they were said. The 1! Defendant was formerly the Plaintif's close friend and confidante for as long as 30 years upward. The 1# Defendant was introduced to the Plaintiff by one Datuk Lim Thian Kiat (hereinafter referred fo as “Datuk TK. Lim"), who was then the alter ego of Magnum Corporation. Their relationship began at a time when the Plaintiff was the Education Minister of Malaysia and they became even closer when the Plaintiff was subsequently appointed as the Minister of Finance of Malaysia. The Plaintiff and the 14 Defendant would engage in sports activities, namely tennis at a tennis court in Bangsar (hereinafter referred fo as tennis court”) (next to Bangsar Shooping Centre in Jalan Maarof, Bukit Bandoraya, 59100 Kuala Lumpur, where a condominium is now erected upon the said tennis courl). This is the specially constructed tennis court at the initiative of Datuk T.K. Lim. Datuk T.K. Lim had brought down a tennis. coach from the United States of America to give lessons fo the Plaintiff, the 1+ Defendant and himself from the years 1993 until 1998. 6. Hwa the 1s! Defendant's long term friendship with the Plaintiff which had made it possible for the 15! Defendant to acquire such detailed intimate information about the Plaintiff. It was this information that subsequently led the 1 Defendant to make such allegations about the Plaintiff as was published in the said two impugned passages. PARTC THE ALLEGED DEFAMATORY WORDS IN THE 15" AND 2% IMPUGNED PASSAGES AND ITS MEANING 7. Subject to and without prejudice to the Defence pleadings in paragraphs 4, 5 and 6 above, in relation to paragraphs 5 (a) and 5 (bj) of the Statement of Claim, the Defendant agrees that the impugned words in the proper context and in their natural and ordinary meaning bore or were understood to bear or were capable of beating the mecning set out in paragraph 5 (a), 5 (b) and 7 of the Statement of Claim except for Paragraphs 7.2 and 7.4 of the same for which the 1 Defendant herein denies and seeks to give a lesser defamatory meaning: be efamatory meaning to paragraphs 7.2 and 7.4 Statement of Claim On Paragraph 7.2 Not qualified or suited to be the Prime Minister of Malaysia (which is a category falling within member of the administration as opposed to being a mere public officer in the public service).On Paragraph 7.4 He is and appears to be a person who does not have a good reputation in relation to his moral turpitude. PART D - SUBSTANTIVE DEFENCES JUSTIFICATION 8. The 1 and 2% impugned passages in paragraphs $ a) and 5 (b) of the Statement of Claim are substantially true in their natural and ordinary and inferential meaning as pleaded in the Defence herein at paragraph 7 above, PARTICULARS OF JUSTIFICATION A. Of the Plaintiff being a bisexual (having sexual relationship with both women and men) and of having sexual relationship with married women. 9. The 1# Defendant had always and on many previous occasions been requested by the Plaintiff to act as a conduit or an arranger fo facilitate the Plaintiff having illicit sex with various men and women (married and unmarried) on various occasions and at various localities in Kuala Lumpur ‘and elsewhere Particulars of Women (a) Shamsidar Binii Taharin (“Shamsidar”) She has been at all material fime the lawful wife of Mohamed Azmin bin Ali (hereinafter referred to as “Azmin") who was the Special Officer to the Plaintiff and later became the personal secretary. Azmin is currently the Member of Parliament of Gombak and the Deputy President of Parti Keadilan Rakyat (hereinafter referred to as “PKR”). The Plaintiff had many 6sexual encounters with Shamsidar from 1993 to early 1998 at a Unit in Tivoli Villo at Jalan Medang Tanduk, Bukit Bandaraya, 59100 Kuala Lumpur (hereinafter referred to as “the Tivoli Vila Unit") (particulars of which shail be provided upon discovery or otherwise). On most of the occasions the Plaintiff would ask the 1% Defendant fo transpori Shamsidar to the sciid address, at times with the Plaintiff seated in the same car. The 1* Defendant would transport Shamsidar in his car, a Daimler bearing the vehicle registration no. WBV37. On all these occasions the 1 Defendant was able to watch the sexual activities between the two through a monitor which was linked to. a CCTV camera in the relevant bedroom. Some of these sexual activifies have gone beyond the normal, ‘On one occasion in 1997 the Plaintiff had sexual activity with Shamsider in @ hotel room arranged by the 1* Defendant in London. Azmin, her husband was also in London at that fime in a different room of the same hotel. The Plaintiff was in London with his own wife Dato’ Seti Dr. Wan Azizah Wan Ismail (the President of Parti Keadilan Rakyal) in the same hoiel, A daughter of Shamsidar, then at the material time aged only 3 months old, used fo be brought by Shamsidar fo the Tivoli Vila Unit when the two: had sexual activities . the 1s Defendant aways acted as the baby sitter during these occasions. Both the Plaintiff and Shamsidar jointly and on separate occasions announced to the 1% Defendant that the baby git! wos the Piaintif's biological daughter. (b) Norlaila Abdul Majid (“Norlaila”) (A married woman) Noraila wos a soles gil in Sukma Darmawan Sasmitaat Madja's {hereinafter referred to as "Sukma") boutique, Gianfranco Ferre at the old Hilton Hotel Kuala lumpur in Jolan Sultan Ismail. She was at the material time 27 years of age and martied with a child. Noraila had sex with theEn Plaintiff on several occasions at the Tivoli Villa Unit all in 1997. Norlaila had also given evidence to the police on her sexual involvement with the Plaintiff during the investigations against the Plaintiff in 1998. (c) Soma Rodrigo @ Anne (“Anne”) An unmarried Eurasian girl who used fo work at a luxury auto shop, Zoibi Motor Sd. Bhd, in Lot 61,Jalan Maarof, Bangsar 59000, Kuala Lumpur. At the request of the Plaintiff the 1s! Defendont took her to the Tivoli Villa Unit ‘and the Plaintiff made sexual proposition to her which she rejected. the 1 Defendant at the request of the Plaintiff for sexual favours at various premises including (d) Various prostitutes were arranged by ihe Tivoli Villa Unit, a house in Bukit Tunku and at various hotel rooms. Particulars of Men (e) Mior Abdul Razak Yahya (“Mior”) Mior was the personal tailor of Datuk Seri Wan Azizah Wan Ismail, wife of the Plaintiff (hereinafter refered to as “Wan Azizch"}. The Plaintiff had met with Mior secretly for four times at the Hilton Hotel in Petaling Jaya. The Plaintiff usually would call Mior at his home at No 7, SS4A/4, Petaling Jaya to confirm the date, venue ond time of their meetings. The hotel rooms were booked under the name of Dr. Munawar Ahmad Anees, who was the Editor-in-Chief of Periodica Islamia. (f) Sukma Darmawan Sasmitaat Madja ("“sukma” Sukma is the “god brother" of the Plaintiff who had lived with the Plaintiff and his family when Sukma was between 16 fo 1? years of age.Sukma had given the evidence to the police that he and the Plaintiff had gotten involved sexually when they would sleep together in the room. According to Sukma, it started by him masturbating the Plaintiff and when his body touched the Plaintiff's body, he wos overcome by sexual feelings. The Plaintiff and Sukma hugged and thereafter Sukma had helped the Plaintiff with manual stimulation of the Plaintiff's penis. Sukma stated that this continued for about one or two years for once a month. I was after two years when the Plaintiff sodomised Sukma, On 19.9.1998 Sukma pleaded guilty in the Sessions Court at Kuala lumpur in case no. 62-136-1998 and wos convicted under Section 37D of the Penal Code for allowing the Plaintiff to sodomise him, The facts revealed in that case will be relied upon at this trial. Sukma’s conviction had been intained by the appellate cours, (g)_ Dr. Munawar Ahmad Anees (“Dr. Munawar") Or. Munawar is a Pakistani national who had gained a Permanent Resident {PR) status in Malaysia and also the United States of America. Dr Munawar was the Plaintiff's consultant in 1989 and had regularly prepared speeches and work papers for the Plaintiff particularly when it involved seminars organised by Islamic organisations outside the country. Dr. Munawar took an active part in providing manual stimulation (masturbation) fo the Plaintiff and it happened once every two weeks which began in mid-1990 at the Plaintiff's residence at No. 8, Jalan Setiamumi 1, Bukit Damansara, Kuala Lumpur. These acts would take place when the Plainiiff's wife and his children were not at home. Dr, Munawar had also provided the Plaintiff with prostitutes al the Holiday Inn Chicago City Centre, United States and Equatorial Hotel in Penang.Dr. Munawar pleaded guilty on 19.9.1998 in the Sessions Court at Kuala Lumpur in case no. 62134-1998 and was convicted under Section 377D of the Penal Code for allowing the Plaintiff 10 sodomise him. This conviction 291 revecled in Dr. Munawar's case will be relied upon at this trial ist Dr. Munawar had been upheld by the appellate courts. The facts (hb) Azizan Abu Bakor (“Azizan”) Azizan was the former driver to the Plaintiff and his family. The sexual involvement between Plaintiff and Azizan began around 1992. The sexual involvement belween Piainfiif and Azizan began while on a holiday in Port Dickson, at a villa owned by Arab Malaysian, with Plaintiff's family which included Sukma. According to Sukma, Plaintiff had asked Azizan to give him a massage as his body was aching. After the massage, Azizan had proceeded to give Plaintiff an oral stimulation. These acts hod. taken place in @ room in the vila which was the room Azizan and Sukma slept in The 1" Defendant will rely upon, inter alia, the findings of the Federal Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004} 3 CLI 737 for furlher allegations of fact in relation to Azizan, (Ismail Mat Rabi @ Ismail Harun (“Ism: Ismail Mat Rapi @ Ismail Harun {hereinafter referred to as Ismail") was unemployed. Ismail had sexual relations with Plaintiff in the same unit at Tivoli Villa and at Plaintiff's residence at No. 8, Jalan Setiamumi 1, Bukit Damansara, Kuala Lumpur in exchange for about RM200 to RM300,On one occasion, the | Defendant by accident opened the adjoining door to the tennis court toilet at the Bangsar tennis court and saw the Plaintiff having sex with ismoil. () Halrany Mat Natees (“Hairany”) Hairany was at one time the speech writer to Plaintiff and had received payment of RM1 4,000 per month. According to Hairany's confession to the police, Plaintiff and him had been sexually involved in 1995. Plaintiff had tied to sodomise him in his office area, in his house etc. (k) Rashid (“Rashid”) Rashid was a prisoner in the Sg. Buloh Prison where the Plaintiff was held The 1+! Defendant had on one occasion seen Rashid with the Plaintiff in his bedroom at the Piaintiff's residence, No. 8, Jalan Setiamumi 1, Bukit Damansara, Kuala Lumpur. This incident had taken place in 2004, after the back surgery that the Plaintiff underwent in Munich, Germany. The 1¥ Defendant caught the Plaintiff and Rashid in the room. The 1 Defendant admitted to having sex with Rashid. Later on, the I Defendant found out that Mohamed Ezam Mohd Nor had knowledge about the relationship between the Plaintiff ‘and Rashid Findings of facts by the Courts The following are the findings of facts by the Courts. uv10.1 At the High Court in Publle Prosecutor v Dato’ Seri Anwar Ibrahim & Anor [2001] 3 CLI 313, the findings of fact by Ariin Joka J are as follows; At page 397, para (a) and page 398 para (g) “I was therefore satisfied that the prosecution has successfully adduced sufficient evidence to prove beyond reasonable doubt that both Dato' Seri Anwar and Sukma had committed camal intercourse on Adizan, It is therefore clearly established by evidence that intercourse was performed by Dato’ Seri Anwar and Sukma on Azizan against the order of nature." Ai page 400, para (a) “The evidence of Azizan himself which | accept as reliable is the strongest evidence fo prove penetration. The admission of Sukmar in his confession stating that Dato’ Seri Anwar did sodomise Azizan until he reached orgasm is yet another piece of evidence to prove penetration. | find that the prosecution has proved beyond reasonable doubt the element of penetration." At page 405, para (b) “Having regard fo the fotality of the evidence adduced so far by the prosecution and after carefully considering the submission of counsels for both accused and the prosecution, | am satisfied that the prosecution had successfully established a case beyond 1210.2 reasonable doubt against Dato’ Seri Anwar and Sukma on the offences for which they are being charged.” At page 444, para (h) and (i) (8) Sukma has nof cast any doubt on the prosecution case of abetment against him. There is ample evidence adduced that he abetted Dato Seri Anwar in committing sodomy against Azizan. (9) It is my finding that the defence evidence adduced on behalf of both the accused as a whole has not succeeded in creating any reasonable doubt on the case for the prosecution. (10) If is also my finding that the prosecution has proved its « beyond a reasonable doubt on the charges against both the accused." At page 445, para (a) “laccordingly found both Dato Ser Anwar and Sukma guilty on the charges against them. | accordingly convicted Dato’ Seri Anwar and Sukma guilty on the charges agaiinst him. | also accordingly convicted Sukma on the two charges against him." At the Court of Appeal in Dato’ Seri Anwar Ibrahim v Public Prosecutor & Another Appeal [2003] 4 CLJ 409, it was held that: At page 413, para (e) to (h) “{1]] There was no reason to disagree with the tral judge that the act of the 1 appellant in asking Azizan to deny the contents of his statutory declaration was conoborative of Azizan’s evidence and relevant by virtue of s. 8 EA. There was no challenge from either of 13ail bind 10.3 10.4 the appetianis fo the prosecution's assertion that the 1:' appellant hod asked Azizan fo deny the contents of the statutory declaration. Similarly, it was reasonable for the trial judge to find conoborative evidence in the action of the I appellant instructing one SACI ‘Musa to cease investigations into the matter. Further, the confession of the 2"! appellant as held by the trial judge, was corroborative of Adizan's evidence as it was made voluntarily and was admitted in evidence. Although the confession was retracted, it was still good corroboration for it is settled law that a confession even if it was subsequently retracted can be a basis to convict a person so long as the court is satisfied of its voluntariness and fruth.” The Judges in this case dismissed the appellants appeal and affirmed the sentences passed by the leamed trial judge. In a finding of facts by the Federal Court in the case of Dato’ Seri Anwar Ibrahim v PP (2004) 3 CLJ 737 at page 788 points to the fact that the alleged homosexual activities did take place at Tivoli Villa, Jalan Medang Tanduk, Bukit Bandaraya, 59100 Kuala Lumpur (hereinafier referred to as “Tivoli Vila"). The conviction was not upheld as coroborative evidence was lacking. Abdul Hamid Mohamad FIC in the Federal Court held that: “To. summarise our Judgment, even though reading the appeal record, we find evidence to confirm that the appellants were involved in homosexual activities and we are more inclined fo believe thal the alleged incident of Tivoli Villa did happen, sometimes. The above quotation clearly means that the Federal Court found the Plaintiff to be involved in homosexual activities. Earlier, the High Court at Kuala Lumpur found the Plaintiff guilty on a charge of 4sodomising one, Azizon 8. Abu Bakar and the conviction was upheld by the Court of Appeal. In the appeal to the Federal Court, although the Plaintiff's appeal was allowed by the majority of the Federal Court on technical grounds, nevertheless the majority had made a specific finding of fact as quoted above. 10.5 Further, the dissenting Judgment of Rahmah Hussain, FCJ in the same case at the Federal Court concluded that the Plaintiff was guilly of the offence under Section 3778 of the Penal Code, a buggery offence. gl cl ail 10.6 Another man, Dr Munawer Anees' conviction still stands, in taking part with the Plaintiff in homosexual activities / sodomy acts. The application by Dr Munawar Anees fo the Federal Courl to review the decision of ihe Court of Appeal under Rule 137 of the Rules of the Federal Court 1995, was dismissed on 17.12.2008. 10.7 Sukma's conviction still stands, in taking part with the Plaintiff in homosexual/sodomy acts. The Appellate Courts had upheld his convictions. QUALIFIED PRIVILEGE W. Altematively, if the impugned words in paragraphs 5 (a) and 5 (b) were defamatory (which is denied) of the Plaintiff, the same were published on an occasion of qualified privilege without matice and in the public interest over matters which the 1s Defendant have a fegall, moral and social duty to communicate to the public. bis cecal13 WS PARTICULARS The 1# Defendant repeats the particulars under paragraphs ? and 10 above. The 14 Defendant as a President of MIUP and a member of the House of Senate has a legal, moral and social duty to communicate or inform the cifizens of Malaysia regarding matiers ‘of utmost importance which includes the Plaintiff's sexual orientation as the Plaintiff is the Head of the Opposition and harbors deep seated ambition of becoming Malaysia's Prime Minister. Further, the impugned words concemed the issues pertaining to the characters of a potential Prime Minister of Malaysia should the Opp: public interest and the 1 Defendant has a legal and moral duty to ion win the next General Election and this is a matter of inform the public at large so that the general public can make intelligent choices during the General Election; The Plaintiff is at all material times a member of the opposition polilical parly, and therefore offers himself to public scrutiny and criticism. Public interest requires that all aspect of the Plaintiff's conduct, whether in an official or personal capacity, shall be open fo searching criticism; Comments upon the conduct and suitability for office of those exercising the powers of government, especially for the Leader of the Opposition who is aspiring to be the Prime Minister, are essential to the proper operation of representative democracy. The reputation of the Plaintiff as a bisexual, homosexual, gay and a womaniser although now widely known has always received total 16E E E . E E E E Lean’ denial from the Plaintiff fil today. The Plaintiff is therefore a “closeted” personality. On the other hand the Plaintiff for a very long time has put on a charade of being very religious, puts himself up as a leader of Muslims both nationally and internationally. The Plainfiff offen uses religious platform to further his political career. As a Muslim, The Plaintiff realises the danger of integrating his closeted Personae with that of his public personae, This hypocritical stance chosen and taken by the Plaintiff in his quest and ambition to remain as an apposition leader and a potential Prime Minister Places the Plaintiff as a source of danger to national security as he can easily be the subject of extortion, blackmail or intimidation by unscrupulous powers, both domestically and internationally. The 1s Defendant therefore owes a duty to expose the Plaintiff's “closeted personae" in order fo better inform the public of the dangers of making wrong choices of their leaders. FAIR COMMENT 12, 13, Further and/or alternatively, if the impugned words in paragraph § {a} and {b) were defamatory [which is denied) of the Plaintiff, and ils meanings under paragraph 7 of the Defence herein, the 1 Defendant maintains that the said words constitutes fair comment on matters of public interest. The said words were fair comment on matters of public interest, namely the Plaintiff's unsuitability as a future leader of the people either as Leader of the Opposition and/or Prime Minister of Malaysia, given the acts of unnatural and promiscuous sex that the Plaintiff indulged in which characterises the Plaintiff as a bisexual because of his inclination towards both sexes and as an adulterer in the face of his constant hypocritical stance of projecting himself by moking public pronouncements as a Muslim leader domestically and internationally, which are not matchedby his own private behaviour and therefore exposing himself as a serious source of national secutily problem as earlier stated herein PARTICULARS OF FACT UPON WHI ENT IS BASED. The 1" Defendant repeats paragraphs 9 and 10 of the Defence herein, The 1 Defendant was under a social and moral duty fo publish the words complained of to the general public, pariicularly that the society is enfitied to know who they cast their votes for and what the 1 Plaintiff as ‘on Opposition Leader and as potential Prime Minister stand for. The Plaintiff was in the habit of misleading and deceiving the people of Malaysia, including making empty and contradictory promises in his quest to achieve his political ambition. The 1! Defendant made the statement contained in paragraphs 5 (a] and (b) of the Statement of Claim honestly and in good faith under such circumstances in which another fair minded person would have made if placed under similar circumstances. The Plaintiff further denies that the words used in the said impugned passages was made maliciously and/or falsely and/or with the intention of defaming the Plaintiff Furhermore, although Iwo Judges of the Federal Court had allowed the Plaintiff's appeal against a conviction and sentence under Section 377B of the Penal Code in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2004] 3 GLI 737, the learned Federal Court Judges made the following findings in the judgment at page 788: “To summarise our judgment, even though reading the appeal record, we find evidence to confirm that the appellants were involved 18a. 22. 23, in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen, sometime, this court, as a court of law, may only convict the appeliants if the prosecution has successfully proved the alleged offences stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law. We may be convicted in our minds of the guilt or innocence of the appellants but our decision must only be based on the evidence adduced and nothing else." The 1 Defendant was not actuated by malice in publishing the impugned possages but merely stating the truth of the matter or as fair comment as it is a matter of public interest in which the 1s! Defendant has corresponding duty as a member of the House of Senate. The 1+ Defendant denies paragraphs 8 and 9 of the Statement of Claim and states that the Defendant has no knowledge of the contents of the said paragraph. The Defendant puts the Plaintiff fo strict proof thereof Paragraph 10 of the Statement of Claim is admitted that by a letter dated 20.3.2012, the Plaintiff through its solicitors demanded a refraction, an apology and damages. However, the 1% Defendant avers that the Plaintiff, for reasons stated herein, is not entitled to any of the demands above because the said words are true and/or fair comment and/or were published on an occasion of qualified privilege. Where applicable the 1s Defendant will resort fo the provisions of the Defamation Act 1957, in parlicular Sections 8 and ¢ herein, The 1 Defendant accordingly avers and will contend that the Plaintiff is not entilled to exemplary damages as alleged in paragraph 11 of the Statement of Claim.24, The 1* Defendant denies paragraph 12 of the Statement of Claim and aver that the impugned passages were published merely to provide the truth of the matter to the people of Malaysia. 25. The 1" Defendant denies paragraph 13 of the Statement of Claim and ‘aver that he has a right to freedom of speech under Article 10{1){9] of the Federal Constitution and thal the imposition of an injunction is unwarranted and contrary to the said right granted by the Federal Constitution. 26. Save as expressly admitted, the 1s Defendant denies each and every allegation of fact contained in the Statement of Claim as if the sare were set forth setiatim and specifically traversed. Dated 9% day of May 2012 } MESSRS SHAFEE & CO. Solicitors for the 1" Defendant This STATEMENT OF DEFENCE OF THE 1S" DEFENDANT is fled by Messrs Shafee & Co,, solicitors for the above named Defendant whose address of service is at ‘Chambers Twenty-Five, No. 25, Jalan Tunku, Bukit Tunku 50480 Kuala Lumpur. Tel: 03 - 2694 8377 Fox: 03-2694 7307 (83812 MSA/NZ]