HASNUL BIN ABDUL HADI V BULAT BIN MOHAMED & ANOR ( 1978 ) 1

MLJ 75

1) FACTS

a) This was a claim for damages for libel contained in the issue of the Utusan
Melayu dated 29 April 1964 at page 10 column 5 with the heading ‘Four
Reasons Why the Socialist Front was condemned in Malacca’. \

b) The translation of the relevant portion of the defamatory publication was as

follows: ‘Third, the citizens in the town whether they are Malays or Chinese
look at Hasnul as ‘Abu Jahal’ because of his very big lies.’

2) HELD

a) To call a man a liar, ‘Abu Jahal’, is defamatory and publication of the words
‘Abu Jahal’ is actionable per se. The plaintiff need not prove that he had
suffered any resulting damage.

b) Statements made on a subject matter in which both the defendant and the
person to whom the statements are made have had legitimate common
interest come under one of the classes of statement published on an occasion
of qualified privilege but since the publication was made after the elections
the occasion was no longer privileged; the onus of proving that the facts on
which the comment is founded are true is on the defendant.
 MUSA BIN HITAM , DATO V SH ALATTAS & 2 ORS ( 1991 ) 1 CLJ 314

1) FACTS

a) The defendant says in an article in challenge “ Siapa Lawan Siapa ” that

Dato’ Musa is responsible for killing 14 innocent Muslim in a incident in
Memali . The defendant was liable as the words content defamatory words.
 DATUK SERI UTAMA DR RAIS BIN YATIM v AMIZUDIN BIN AHMAT
[2012] 2 MLJ 807; [2011] MLJU 1071; [2011] 1 LNS 1441; [2012] 2 AMR 266

1) FACTS
a) The plaintiff, a renowned senior politician, was at all material times a
Member of Parliament of Jelebu, Negeri Sembilan, while the defendant was
at all material times a committee member of the youth wing of a rival
political party.

b) On 28 December 2010, the defendant had published in his blog an article

under the heading of 'Hei Pak Menteri … mana mau lari …' ('the article')
with the photograph of the plaintiff prominently displayed at the top left hand
corner of the article.

c) The plaintiff alleged that in their natural and ordinary meaning or

alternatively by way of innuendo the words of the article were false and
malicious or defamatory, in that, inter alia, they were understood to mean
that the plaintiff was guilty of raping his Indonesian maid, a criminal offence;
that the plaintiff was capable of murdering his Indonesian maid; and that the
plaintiff was unfit to hold a public office whether as a minister or as a
Member of Parliament.

d) The plaintiff commenced an action based on libel against the defendant and
claimed for general, special, aggravated and punitive damages with interest.
The plaintiff also prayed for a mandatory injunction to compel the defendant
to remove the words from the blog site and a prohibitory injunction to
restrain the defendant from further publishing libelous words in his blog.

e) The defendant did not dispute the publication of the defamatory words but
pleaded justification as a defence.

f) The defendant's testimony was that his blog about the plaintiff with regards
to the defamatory words were actually what he had copied and pasted from
the contents of the website of Harakah Daily. As such, the defendant claimed
that he was merely repeating what Harakah Daily had published.

2) HELD

a) Allowing the plaintiff claim with costs:(1) The defendant relied heavily on
the investigation report of Migrant Care, an NGO of Indonesia that was
entrusted with the welfare of Indonesian workers working in foreign lands, to
prove his defence. However, the report was a disputed document and was not
accepted as evidence because the maker of the document was not called to
prove the report. Further the investigation report did not bear the signatures
of any person of authority. Thus the said report remained as inadmissible
hearsay.

b) The defendant also relied on Indonesian media and newspaper reports ,

which confirmed that there was an investigation report by Migrant Care
 pertaining to the alleged rape of the Indonesian maid. However, the contents
of the reports had not been verified to be true. Further from the dates of the
reports it was clear that the defendant had written his blog before the
publication of the reports. Thus, there was no basis for the defendant saying
that what he published in his blog on 28 December 2010 was true based on
the reports, which were non-existent as at 28 December 2010.

c) The defendant defence that he had done nothing wrong because he had
merely copied from the Harakah Daily and pasted it onto his blog was
misconceived. This was because the defendant had not only copied and
pasted the contents of the Harakah Daily to the article in his blog but he had
added the photograph of the plaintiff, which had the effect of implicating the
plaintiff with the rape case. By putting the photograph of the plaintiff next to
the article, the defendant was adding on facts which were not in the original
text. Further it is trite law that the fact that the defendant was not the original
author of the libel but only published it by way of repetition was no defence.

d) Based on the evidence it was found that the defendant had not attempted to
find out, investigate or verify whether what he had imputed on the plaintiff
was true until he received the writ and statement of claim. The defendants act
of publishing first and investigating later was reckless and irresponsible. The
defendant had failed to prove the defence of justification and was liable to
the plaintiff for libel .

e) In determining the quantum of damages this court took into consideration,

factors such as, the conduct of the plaintiff; the plaintiffs standing in society;
the nature of the libel; the mode and extent of publication; the defendants
absence or refusal to retract or apologise; and the whole conduct of the
defendant from the date of publication of the libel. It was found that there
was no evidence of any bad conduct on the part of the plaintiff except for the
fact that both parties were on the opposite political divide. This court also
found the present case, in which the defamatory words imputed that the
plaintiff had committed rape of a foreign maid, to be special in its facts
compared to other decided cases.

f) The publication in the present case was via a blog site, which was accessible
to everyone who opened the site. This meant that the circulation was
worldwide.

g) On the facts of this case, there was nothing to show that the defendant had
made an offer of a retraction or an apology. It was also clear from the facts
that the defendant intended to wreck the reputation of the plaintiff personally
and politically. In the circumstances the plaintiff was entitled to
compensatory damages for the effect that the imputation had on his personal
integrity and reputation. In addition, the plaintiff was also awarded
aggravated and exemplary damages. The court awarded the plaintiff a global
sum of RM300,000, an amount slightly above the trend of the awards, for
compensatory, aggravated and exemplary damages because it found that the
special distinguishing factors in this case warranted the granting of such an
amount. The plaintiff was also granted the injunction orders he prayed for.
 TOLLEY V FRY & SONS LTD ( 1931 ) ALL ER 131

1) FACTS

a) The defendants were owners a chocolate manufacturing company. They

advertised their products with a caricature of the claimant, who was a
prominent amateur golfer, showing him with the defendants’ chocolate in his
pocket while playing golf.

b) The advertisement compared the excellence of the chocolate to the

excellence of the claimant’s drive. The claimant did not consent to or knew
about the advertisement.

2) ISSUE

a) The claimant alleged that the advertisement suggested that he agreed to his
portrait being used for commercial purposes and for financial gain. He
further claimed that the use of his image made him look like someone who
prostituted his reputation for advertising purposes and was thus unworthy of
his status.

b) At trial, several golfers gave evidence to the effect that if an amateur sold
himself for advertisement, he no longer maintained his amateur status and
might be asked to resign from his respective club.

c) Furthermore, there was evidence that the possible adverse effects of the
caricature on the claimant’s reputation were brought to the defendants’
attention.

d) The trial judge found that the caricature could have a defamatory meaning.
The jury then found in favour of the claimant.

e) The defendants appealed. The Court of Appeal was of the view that the case
should never have gone to the jury. This time the claimant appealed.

3) HELD

a) The House of Lords held that in the circumstances of this case – as explained
by the facts – the caricature was capable of constituting defamation.

b) In other words, the publication could have the meaning alleged by the
claimant. The Lords also ordered a new trial limited to the assessment of
damages.
 LEWIS V DAILY TELEGRAPH LTD ( 1964 ) AC 234

1) FACTS

a) The Daily Telegraph had published an article headed ‘Inquiry on Firm by

City Police’ and the Daily Mail had published an article headed ‘Fraud
Squad Probe Firm’.

b) The plaintiffs claimed that those articles carried the meaning that they were
guilty of fraud. The defendants admitted that the articles were defamatory,
but they maintained that the articles did not go so far as to include actual
guilt of fraud, but something less.

2) HELD

a) The House defined the general principles for the ascertainment of the
meaning of words in defamation proceedings. The test to be applied is what
the words would convey to the ordinary reader. The sting alleged may not be
so much in the words themselves as in what the ordinary man will infer from
them and that that is in consequence regarded as part of the natural and
ordinary meaning. ‘The gist of the two paragraphs is that the police, the City
Fraud Squad, were inquiring into the appellants’ affairs.’ As to the different
categories of justification: ‘In the present case, for example, there could have
been three categories of justification – proof of the fact of an inquiry, proof
of reasonable grounds for it and proof of guilt.’

b) A company cannot be injured in its feelings, it can only be injured in its

pocket. The injury must sound in money, but the injury need not necessarily
be confined to loss of income. Its goodwill may also be injured.

c) Lord Reid said: ‘What the ordinary man would infer without special
knowledge has generally been called the natural and ordinary meaning of the
words. But that expression is rather misleading in that it conceals the fact that
there are two elements in it.

d) Sometimes it is not necessary to go beyond the words themselves, as where

the plaintiff has been called a thief or a murderer. But more often the sting is
not so much in the words themselves as in what the ordinary man will infer
from them, and that is also regarded as part of their natural and ordinary
meaning.

e) In this case it is, I think, sufficient to put the test in this way. Ordinary men
and women have different temperaments and outlooks. Some are unusually
suspicious and some are unusually naive. One must try to envisage people
between these two extremes and see what is the most damaging meaning
they would put on the words in question.

f) What the ordinary man, not avid for scandal, would read into the words
complained of must be a matter of impression.’
g) As to justification he said: ‘I must notice an argument to the effect that you
can only justify a libel that the plaintiffs have so conducted their affairs as to
give rise to suspicion of fraud, or as to give rise to an inquiry whether there
has been fraud, by proving that they have acted fraudulently. Then it is said
that if that is so there can be no difference between an allegation of
suspicious conduct and an allegation of guilt.

h) Lord Devlin said: ‘My Lords, the natural and ordinary meaning of words
ought in theory to be the same for the lawyer as for the layman, because the
lawyer’s first rule of construction is that words are to be given their natural
and ordinary meaning as popularly understood.

i) Lord Devlin said: ‘There is no doubt that in actions for libel the question is
what the words would convey to the ordinary man: it is not one of
construction in the legal sense. The ordinary man does not live in an ivory
tower and he is not inhibited by a knowledge of the rules of construction. So
he can and does read between the lines in the light of his general knowledge
and experience of worldly affairs.

j) Ordinary men and woman have different temperaments and outlooks. Some
are unusually suspicious and some are unusually naive. One must try to
envisage people between these two extremes and see what is the most
damaging meaning they would put on the words in question. If the ordinary
sensible man was capable of thinking that wherever there was a police
inquiry there was guilt, it would be almost impossible to give accurate
information about anything . .’

k) As to repetion of the statements of others, Lord Devlin said: ‘For the

purposes of the law of libel a hearsay statement is the same as a direct
statement, and that is all there is to it.’
 CHONG CHIENG JEN v GOVERNMENT OF STATE OF SARAWAK &
ANOR [2019] 3 MLJ 300

1) ISSUE

a) The issue in the instant case was whether a state government or a department
or organ of that government (‘the respondents’) had the right to sue the
appellant (‘Chong’) for defamation.

2) FACTS

a) Chong, an opposition state assemblyman and Member of Parliament, had

alleged that the financial affairs of the Sarawak State Government had been
mismanaged to the extent that the ‘disappearance’ of close to RM11 billion
in state funds had not been explained. Chong’s allegations were published in
a daily newspaper, in a leaflet of his political party, as well as in an online
news portal.

b) Claiming that Chong had defamed them, the respondents sued him for
damages. Chong relied on the defences of justification, fair comment and
qualified privilege and also pleaded that the words complained of, in their
natural and ordinary meaning, were not capable of having a defamatory
meaning.

c) In any event, he said, based on the common law, the Defamation Act 1957,
the right to freedom of speech and expression guaranteed under art 10 of the
Federal Constitution (‘art 10’) and on grounds of public policy/public interest,
the respondents had no locus standi to sue him for defamation.

d) Chong applied under O 14A of the Rules of Court 2012 (‘O 14A’) to have
the High Court determine four questions of law and that if those questions
were determined in his favour the court should strike out the respondents’
claim against him,

e) The High Court determined three of the questions in favour of the

respondents (against which decision Chong did not appeal) but answered the
most critical question — ie, whether the respondents had the right to sue him
for damages for defamation — in the negative and dismissed the
respondents’ claim. Relying on the decision of the House of Lords
in Derbyshire County Council v Times Newspaper Ltd & Ors [1993] AC
534 (‘the Derbyshire principle’), the High Court held that although
a state government or a statutory body could sue and be sued, they did not
have a right to sue for defamation.

f) By a majority, the Court of Appeal (‘COA’) reversed the High Court’s

decision on that question. It further ruled that since all the questions posed in
the O 14A application had been decided in the respondents’ favour, the claim
against Chong had been established and there was no need for the High Court
to hear further evidence or arguments.
g) The majority of the COA entered judgment for the respondents as per their
statement of claim and ordered damages payable by Chong to be assessed.
The majority of the COA interpreted s 3 of the Government Proceedings Act
1956 (‘the GPA’) to mean that if one private individual could sue another for
defamation the government could similarly sue a private individual for the
same cause of action.

h) The majority rejected the appellant’s argument that government and its
bodies had no reputation that needed to be protected by the law of
defamation, holding that a government’s reputation could be injured by libel
if the impugned words tended to lower its reputation in the estimation of
right-thinking members of the public or exposed it to hatred, contempt or
ridicule.

i) The Federal Court granted Chong leave to appeal against the majority COA’s
decision on the question whether: (a) s 3 of the GPA and s 3(1)(c) of the
Civil Law Act 1956 (‘the CLA’) precluded the Derbyshire principle from
being applied against the respondents; and (b) whether if a party had applied
under O 14A to determine only some of the issues that it had pleaded, it was
deemed to have abandoned other causes of action, issues or defences that it
had pleaded but which were not made the subject of the O 14A application.

j) In the instant case, the minority judgment of the COA ruled that based on
the Derbyshire principle, the respondents had no right to sue for defamation
and that there was no reason why, under the CLA, that principle should not
be adopted in Malaysia as it was consistent with art 10 and the requirement
for government to be accountable and transparent. The minority judgment
ruled that s 3 of the GPA did not specifically say that government had a right
to sue for defamation.

k) At the instant appeal hearings, Chong submitted that various jurisdictions

around the world had adopted the Derbyshire principle to support the view
that democratically-elected governments or government bodies should be
open to public criticism and not fetter the right of free speech and expression
of its critics with the probability that they could be sued for defamation.

l) Chong also argued that since neither the GPA nor the Defamation Act 1957
specifically allowed government to sue for defamation, the guarantee of
freedom of speech and expression enshrined in art 10 should not be unduly
fettered, especially in the instant case where a citizen should have the right to
query the expenditure of considerable public funds by the state government.

m) The respondents, on the other hand, argued that the Derbyshire principle,
being part of English common law, could not be adopted in Malaysia because
the respondents’ right to sue for defamation was statutorily conferred by s 3
of the GPA. They also said the right to freedom of speech and expression
guaranteed under art 10 was not absolute but curtailed by various limitations
and restrictions, including laws relating to defamation.
3) HELD

a) Unanimously: (i) affirming the COA’s majority decision that the respondents
had the right to sue and maintain an action for damages for defamation
against Chong; (ii) setting aside the COA’s majority decision to enter
judgment and order damages to be assessed against Chong; and (iii) remitting
the case back to the High Court for trial to determine whether the impugned
words did, in fact, defame the respondents, as well as to determine the
defences raised by Chong and, if necessary, the damages to be assessed:

b) The statutory right of the government to sue in civil proceedings under s 3 of

the GPA, including for defamation, was not subject to the common law of
England because the words ‘written law’ in that section was not defined by s
3 of the Interpretation Acts 1948 and 1967 to include the common law of
England. Hence, the common law principle expounded in Derbyshire did not
apply.

c) The GPA did not preclude the government from taking civil action for
defamation. Indeed, s 2(2) of that Act, which defined ‘Government’ to
include the federal government and the state governments, provided a wide
definition of ‘civil proceedings’ to include any proceeding whatsoever of a
civil nature before a court. Thus, under s 3 of the GPA, if an individual made
an allegation critical of a government, which allegation if made
against another individual would have afforded that other individual ground
to sue, then the government could sue in defamation. There was nothing
under s 3 or under the GPA as a whole which could be construed as
prohibiting or restricting the government from suing in defamation. Chong’s
submission that government did not have a reputation that could be defamed
could not be accepted. The majority of the COA had rightly decided on this
point.

d) When faced with a situation whether a particular principle of common law of

England was applicable in Malaysia, the court first had to determine whether
there was any written law (on the point) in force in Malaysia. If there was,
the court did not have to look anywhere else. In the instant case, the GPA
was the specific law in force which governed proceedings by and against the
Federal and State governments. The right of the government, including
the Sarawak State Government to sue, including for defamation, was
statutorily provided for under s 3 of the GPA. Hence, the English common
law principle expounded in Derbyshire did not apply .

e) The right to freedom of speech and expression guaranteed under art 10(1)(a)
of the Federal Constitution was not absolute or unfettered but was subject to
restrictions imposed by art 10(2)(a) including the law of defamation.

f) In an action for defamation, the court’s first task was to determine whether
the words complained of were capable of bearing a defamatory meaning.
This was a question of law which turned upon the construction of the words
published. The court’s next task was to ascertain whether the words
complained of were in fact defamatory. This was a question of fact which
 depended upon the circumstances of the particular case. In the O 14A
application in the instant case, only the above question of law was
determined by the High Court in the affirmative.

g) The High Court did not determine whether the impugned words were in fact
defamatory because that question was not in the O 14A application.
Furthermore, no question relating to the defences pleaded by Chong were
raised or determined by the High Court judge. As such, the majority of the
COA erred in holding that since all the four questions in the O 14A
application had been answered in favour of the respondents, their claim had
been established without the need to hear any further evidence or arguments.

h) The COA also erred in entering judgment for the respondents and ordering
that the damages payable by Chong be assessed.
 DATUK SERI ANWAR BIN IBRAHIM v WAN MUHAMMAD AZRI BIN
WAN DERIS [2014] 9 MLJ 605; [2014] MLJU 177

1) FACTS

a) The plaintiff was known internationally as a statesman and political leader.

b) The defendant was the owner and operator of a website / blog with the URL
in www.papagomo.com and known as 'Papa Gomo'. The defendant's website
had published statements and articles containing sexually oriented
defamatory statements regarding the plaintiff.

c) The plaintiff through his solicitor demanded the defendant to retract,

apologise and pay compensation but the defendant failed to do so. Hence the
plaintiff commenced the present suit for defamation.

d) The defendant claimed that he was not the owner, operator or author of the
articles and was not responsible for the publication of any article in
www.papagomo.com. The defendant also raised the defences of qualified
privilege, fair comment and justification.

2) HELD

a) Allowing the plaintiff's claim with costs of RM50,000:

b) To succeed in defamation action, the plaintiff has to establish that: (a) the
statements are defamatory; (b) the statement must refer to the plaintiff; and (c)
there must be a publication.

c) The defamatory statements had defamed the plaintiff. The statements were
very obnoxious and obscene. The statements and the images (defamatory
statements) that were pleaded, in ordinary and natural meaning were
understood that the plaintiff was: an immoral person; a person with no
dignity; a person unfit to hold public office; not qualified as a political leader;
not fit to be Prime Minister of Malaysia, and a leader who was not
responsible and could not be trusted .

d) As to whether the statements were capable of being and were, in fact

defamatory of the plaintiff, the test to be considered was whether the
statements were calculated to expose the plaintiff to hatred, ridicule or
contempt in the mind of a reasonable reader would tend to lower the plaintiff
in the estimation of right thinking society generally. The ordinary and natural
meaning may therefore include any inference or implication which any
inference or implication which an ordinary reasonable reader would draw
from the statements .

e) The statements had exposed the plaintiff to hatred, ridicule or contempt in the
mind of a reasonable reader and would tend to lower the plaintiff in the
estimation of right thinking society generally. It also attacked the moral
 character of the plaintiff. Hence, the statements were defamatory of the
plaintiff.

f) In a libel action the statements complained of must refer to the plaintiff. The
statements referred to the plaintiff personally. The website or blog was
specially made to defame the plaintiff. Any reasonable reader reading the
defamatory statements published on the website or blog Papagomo would
know that the defamatory statements referred to the plaintiff.

g) The defamatory statements were published in the website

www.papagomo.com ie in the internet and the people all over the world
could get access to the website meaning that there was a wide publication of
the defamatory statements. It was a judicial notice that the internet is used
worldwide. The online defamatory statements or published on the internet
amounted to publication.

h) The plaintiff had proved that the defendant was the person name Papagomo
and published the defamatory statements of the plaintiff through the website
www.papagomo.com
 MORGAN V ODHAMS PRESS LTD ( 1971 ) 1 WLR 1239

1) FACTS

a) The defendant was a journalist collecting material on a dog doping gang

story, whereby he put a key witness (who agreed to talk to him) under his
surveillance while investigations were ongoing.

b) The witness left the defendant’s lodgings to spend a few days with the
claimant with whom she was seen in public. The witness was later taken
back to the defendant’s lodgings until after some of the gang members have
been convicted.

c) The defendant published his story, which included a photograph of the

witness with her name also indicated. A later article suggested that the
witness was kidnapped by members of the gang – the article did not mention
the claimant by name or description.

2) ISSUE

a) The claimant brought an action for libel, arguing that by innuendo the article
associated him with the dog doping gang and thus the kidnapping.

b) At trial, the judge put the case before the jury as words of the article were
capable of being understood as referring to the claimant.

c) The jury found in favour of the claimant. The defendants appealed. The
Court of Appeal allowed their appeal.

d) It held that any reasonable man would have been prevented by the
discrepancies in the story from thinking that the article referred to the
claimant.

e) It also held that in order to become defamatory, the article should have
contained some clear indications that it referred to the claimant – which was
not the case here. The claimant appealed to the House of Lords.

3) HELD

a) The House of Lords held that one must first consider the nature of the article
and the class of readers likely to read it.
b) Then, one might go on to determine the impression the article would have
had on the mind of the ordinary sensible reader, who read the article casually
and not in expectation of precision.
c) The Court held that the article would be defamatory if it contained
defamatory imputations and pointed to the claimant as the person to be
defamed.
d) The Lords were of the view that in the present case the article complied with
these requirements and was thus defamatory.
 HULTON & CO V JONES ( 1910 ) AC 20

1) FACTS

a) An article was written by a correspondent of an English newspaper reporting

that at a large and well attended motor vehicle show in France there on the
terraces was ‘Artemus Jones with a woman not his wife who must be you
know – the other thing.’

b) The writer did not know an Artemus Jones and had made the name up for the
purposes of the story.

c) In fact there really was an Artemus Jones a barrister in practice in North

Wales.

2) HELD

a) The plaintiff was entitled to maintain the action. The newspaper and its
publishers were liable: ‘A person charged with libel cannot defend himself
by showing that he intended in his own breast not to defame, or that he
intended not to defame the plaintiff, if in fact he did both.’

b) Lord Loreburn LC said that intention is no defence ‘however excellent it may

be’. The defendant’s remedy ‘is to abstain from defamatory words.’ It is for
the jury to decide as a question of fact whether the article actually identified
the plaintiff.

c) The meaning intended by the publisher is irrelevant for the purpose of

construing the words, although it may be relevant to the question of damages.
‘Libel is a tortious act.

d) What does the tort consist in? It consists in using language which others
knowing the circumstances would reasonably think to be defamatory of the
person complaining of and injured by it.’
 NEWSTEAD V LONDON EXPRESS NEWSPAPER LTD ( 1939 ) 4 ALL ER
319

1) FACTS

a) A newspaper published details of a bigamy trial and referred to the accused

as “Harold Newstead, thirty-year-old Camberwell man.”

b) Another man by the name of Harold Newstead, also from Camberwell and
aged around thirty, brought an action in libel against the newspaper. He
claimed that the article had been misunderstood as referring to him.

2) ISSUE

a) The defendant newspaper admitted publication of the account but denied that
they were intended or understood to refer to the plaintiff or that they were
defamatory of him.

b) The plaintiff alleged that the defendants were under a duty to take reasonable
care to give a precise and detailed description of the correct Harold Newstead,
denoting him exclusively, and to ensure that the words published were not
capable of referring to any other person.

c) They were in breach of this duty.

d) The key question was whether reasonable persons would understand the
words complained of to refer to the plaintiff.

3) HELD

a) The Court of Appeal noted that it is established law that liability for libel
does not depend on the intention of the defamer; but on the fact of the
defamation.

b) Accordingly, in a case such as this it may be right to direct the jury that a
reasonable man, and, in particular, a newspaper publisher, must be aware of
the possibility of individuals with the same name and must assume that the
words published will be read by a reasonable man with reasonable care.

c) The Court held that the evidence justified a finding by the jury that a
reasonable man may have understood the words complained of to refer to the
plaintiff.

d) The fact that the words were true of another person was not a valid defence
against a claim of libel.
KNUPFFER V LONDON EXPRESS NEWSPAPER LTD ( 1944 ) 1 ALL ER 495

1) FACTS

a) Knuppfer (K) was the head of the British branch of the Young Russia Party.
The respondents published a newspaper article in 1941 which alleged
association between Hitler and the Party.

b) Whilst K was not named individually in the article, witnesses at trial

intimated that they understood the article as referring to K. K was successful
in his libel claim at trial.

2) ISSUE

a) The Court of Appeal held that the words could not be regarded as referring to
K and allowed the newspaper’s appeal.

b) K appealed to the House of Lords. On appeal, K submitted that when a

defamatory statement is made of a class of persons, an individual suit can be
raised by those members of the class capable of being defamed by the
statement.

c) K submitted that the article particularly reflected upon him as a prominent

member of the group in Britain.

3) HELD

a) The House of Lords noted that it is an essential element of defamation that

the words complained of should be published “of the plaintiff.”

b) Viscount Simon held that the article, having regard to its language, could not
be regarded, as a question of law, as being capable of referring to K.

c) The trial judge had erroneously relied upon a question of fact i.e. the fact that
K was capable of being identified by reasonable people who knew him as a
subject of the article.

d) Similarly, Lord Atkin held that in libel cases the key question was whether
the words were published “of the plaintiff” as an individual rather that
whether they were spoken of a class.

e) The appeal was therefore dismissed.

 PULLMAN V W. HILL & CO LTD ( 1891 ) 1 QB 524

1) FACTS

a) The plaintiffs were two members of a partnership firm.

b) They owned property in Borough Road, London which they had contracted
to sell. In the meantime, they let a hoarding which was erected on the
property, to the defendant.

c) A dispute arose between the defendant and the purchaser of the Borough
Road property regarding the hoarding.

d) The defendant wrote a letter addressed to the partnership alleging that the
partnership had no right to let the hoarding due to the sale of the land.

2) ISSUE

a) The plaintiffs alleged that the letter written to them by the defendant was
defamatory.

b) The letter was dictated by the managing director of the defendants to a clerk,
who wrote them out in a type-writing machine. The letter was then copied by
an office-boy in a copying-press.

c) Upon reaching its destination, it was read by two other clerks. The key issue
was whether these facts amounted to a “publication” of the letter for the
purposes of libel.

d) The plaintiffs contended that there was a publication to the respective clerks
in each office.

3) HELD

a) The Court of Appeal reversed the decision of the trial judge and held that the
letter must be taken to have been published both to the plaintiffs’ clerks and
the defendants’ clerks and that on neither occasion was the publication
privileged.

b) Lord Esher held that there is a “publication” of a letter wherever the writer of
the letter shows it to any person other than the person to whom it is written.

c) If some individual wishes not to publish a letter, where the letter contains
defamatory matter, he must either keep it to himself or send it himself
straight to the person to whom it is written.
 LUK KAI LAM V SIM AI LENG ( 1978 ) 1 MLJ 214

1) FACTS

a) This was an appeal against the decision of the learned judge of the High
Court on the question of slander arising out of a counterclaim.

b) The learned judge found that the respondent had used against the appellant
words which were slanderous in that they imputed adultery or unchastity but
was of the view that the words were slanderous of the appellant as a woman
and not in the way of her profession and office as a staff nurse.

c) Subsequently there was a meeting called with a view to settling matters. At

that meeting the appellant made certain slanderous remarks against the
respondent imputing unchastity to the respondent.

d) The learned trial judge found the occasion was a privileged one but held that
the words were spoken out of malice and the defence of qualified privilege
failed. He awarded the appellant $1,500 damages against the respondent and
the respondent $1,250 damages against the appellant.

e) The appellant appealed.

f) It was argued inter alia

i. The learned trial judge was wrong in holding that the appellant was
not slandered in the way of her profession and office;
ii. That the words constituting the slander were spoken and published
in the presence of a witness;
iii. That the learned judge should not have held that the words were
spoken out of malice as the respondent had not delivered a reply to
the appellant's claim of privilege.

2) HELD

a) On the evidence the learned judge was right to say that he did not consider
the words calculated to disparage the appellant in her office, profession or
calling held by her at the time of publication;

b) The learned judge saw and heard all the witnesses and he was clearly
satisfied that there was publication;

c) Where it is necessary for the plaintiff to prove that the defendant was
actuated by an improper motive he need not specifically allege malice in his
reply if he has already done so in his statement of claim or if the defendant in
his defence has pleaded that he acted in good faith. If the plaintiff has already
alleged malice in his statement of claim the proviso to O 19 r 22 does not
come into play.
 ZAINUDDIN BIN MUHAMMAD V NEC SYSTEM INTEGRATION
CONSTRUCTION ( 2006 ) 6 MLJ 763

1) FACTS

a) The plaintiff had entered into a settlement agreement with two investors to
return certain sums of money which they had invested with him.
b) Pursuant to the agreement, the plaintiff was directed to pay a sum of
USD7.5m into a bank account belonging to the first defendant by 19
February 1999. The second and third defendants, acting as attorneys for the
first defendant wrote to the plaintiff a letter dated 29 January 1999.
c) The plaintiff contended that the first line of the last paragraph of the letter
which reads, ‘We expect that as a respectable businessman, your promise of
“trust me, I will pay” will be kept’ was defamatory.
d) However, the senior assistant registrar (‘the SAR’) who heard the case found
against the plaintiff. The plaintiff appealed.

2) HELD

a) Upholding the SAR’s decision and dismissing the appeal:

b) In his statement of claim, the plaintiff had only stated that the second and
third defendants as servants or agents of the first defendant wrote and
published or caused to be published the letter dated 29 January 1999.
However, the plaintiff had made no reference in the statement of claim as to
who else the publication was made to. In order to constitute publication, the
allegedly defamatory matters must be published to, or communicated to, a
third party other than to the plaintiff himself.

c) The plaintiff also could produce no evidence to substantiate his contention

that the letter had been sent by fax; on the contrary there was clear evidence
that the said letter was dispatched by express delivery to the plaintiff
personally;

d) Nothing defamatory can be found about the the first line of the last paragraph
of the letter dated 29 January 1999. The plaintiff was unable to illustrate with
any single authority to suggest that the said words had a defamatory meaning
and did not even address the court as to how such words could be termed
defamatory.

e) Furthermore, the second and third defendants had a legal duty to write the
letter to the plaintiff and in the absence of express malice, ex facie the letter
cannot in any way be defamatory to the plaintiff.

f) The entire final paragraph read together was a plea to the plaintiff to abide by
his commitment and a subtle warning to the plaintiff to pay up or else face
litigation.
 WENNHAK V MORGAN ( 1888 ) 20 QBD 635

1) FACTS

a) Wennhak v Morgan is a leading case in English defamation law, that held

that communication with one's own spouse will not be considered to be
'published' for the purposes of defamation acses.

2) HELD

a) In Wennhak, Huddleston B thought (with Manisty J. agreeing) that the

question could be decided “on the common law principle
that husband and wife are one”, and that accordingly there had been no
publication.
 HUTH V HUTH ( 1915 ) 3 KB 32

1) FACTS

a) The defendant, Captain Huth, sent an allegedly defamatory letter in an

unclosed envelope through the post to his four children.

b) The letter contained an implication that the children were illegitimate.

c) The letter was taken out of the envelope and read by a butler in breach of his
duties and out of curiosity.

d) At trial, the claim was dismissed on the basis that there was no evidence of
publication of the libellous information.

2) ISSUE

a) On appeal, counsel for the appellants contended that the defendant knew that
the document was likely to be taken out of the envelope and read and he must
therefore be responsible for it.

b) The only obligation on the plaintiffs was to show that the words are
susceptible to defamatory meaning.

c) The respondent argued that there had never been a successful libel claim
where the publication had been sent in an envelope.

d) This should be contrasted with a postcard or telegram where there is a

reasonable inference that the matter would be published.

3) HELD

a) The Court of Appeal was of the view that it was not right to treat a letter in
an “ungummed” envelope with a halfpenny stamp as though it were an open
letter.

b) Such a letter required some act by a person before they could be read and the
Court could not presume that such letters would be opened in the ordinary
course of business.

c) Therefore, the defendant could not be taken to have known that the letter
would have been taken out of the envelope and there was accordingly no
evidence of publication of the libel in the case.
 THEAKER V RICHARDSON ( 1962 ) 1 WLR 151

1) FACTS

a) The defendant (R) wrote to the plaintiff (T) accusing her of, amongst other
things, being “a very dirty whore.” T’s husband opened the letter thinking
that it was an election address.

b) At trial, the jury found that there was a valid claim of libel because R
anticipated that someone other than T may have opened the letter.

2) ISSUE

a) R appealed and contended that the findings of the jury were perverse. R argued
that there was no “publication” of the libel because the defendant could not have
anticipated that T’s husband would have opened the letter.

b) It was conceded that there was no publication other than to T’s husband.

c) Thus, the key question was whether the libel was published where only T’s
husband had read it.

3) HELD

a) The Court of Appeal dismissed the appeal.

b) The trial jury’s finding could not be said to be perverse.

c) The answer to the question of publication of a libel contained in a letter

depends on the state of the defendant’s knowledge, either proved or inferred,
of the conditions likely to prevail in the place to which the libel is destined.

d) Further, the question of whether the opening and reading of the letter by T’s
husband was something which could happen in the ordinary course of events
was clearly one for the jury and not the Court.

e) Judicial notice should not be taken of the fact that husbands read wives’
letters and the jury was entitled to consider R’s behaviour especially
considering that he had no warranty for any of the scandalous things he had
said in the letter.
 MOHAMED AZWAN ALI V SISTEM TELEVISYEN MALAYSIA ( 2000 ) 4
MLJ 120

1) FACTS

a) The plaintiff brought this action for libel against the defendants as the
broadcaster, owner, the producer and maker of the defamatory statements in
the programme called ‘Melodi’ aired by the first defendant.
b) The fourth defendant in one of the segment of the programme had uttered
‘kau ni nak jadi macam Azwan Alilah menangis sebab Ziana Zain kahwin!’.
In his amended pleadings, the plaintiff claimed that the word ‘menangis’
gives the impression to the public that the plaintiff was ‘hysterical’ when
Ziana Zain married and hence it was the use of the word ‘menangis’ that had
allegedly caused the plaintiff embarrassment and humiliation.

2) HELD

a) Held, dismissing the claim:

b) The plaintiff's contention that ‘menangis’ means that he was ‘hysterical’
(melalak) is totally unsupported by any evidence (see p 125H). The plaintiff
had amended the pleadings and substituted the word ‘melalak’ to read
‘menangis’.
c) Whilst the fourth defendant had never used the word ‘melalak’ in the relevant
segment of the ‘Melodi’ programme, the fact that the plaintiff had amended
his pleadings to denote that the word used was ‘menangis’ and not ‘melalak’
ought to have indicated to the plaintiff that he ought not to have pursued with
his arguments .
d) Public personalities ought to accept the fact that their lives are not confined
within the cloistered walls of their own hermitage. Public personalities must
accept the ‘buffets and blows’ that come with fame (see pp 126I–127A).
Since the programme ‘Melodi’ in itself is a light entertainment programme,
the said words were words spoken in jest and therefore not defamatory of the
plaintiff .
e) When the plaintiff makes such a public announcement of his intention to
propose marriage to someone, surely he must accept the fact that when the
object of his desire had turned him down, he must be ready to accept public
comment either in the press or on TV.
f) Any matter brought before the public so as to invite public criticism on it
may be commented upon .
g) The whole statement was not defamatory when looked upon in its natural and
ordinary meaning.
h) The statements also did not carry any secondary meaning or innuendo
because the whole statement was not derogatory and was not an attack upon
the moral character of the plaintiff, nor did it attack the plaintiff in his
professional capacity as an artiste.
 VIZETELLY V MUDIE’S SELECT LIBRARY LTD ( 1900 ) 2 QB 170

1) HELD

a) The court was asked about the liability in defamation of a circulating library
who provided books to subscribers, in this case about the book on Stanley’s
search for Emir Pasha in Africa.
 GOLDSMITHS V SPERRINGS ( 1977 ) 1 WLR 478

1) FACTS

a) The plaintiff commenced proceedings for damages for libel and an injunction
against the publishers, the editors and the main distributors of Private Eye.

b) In addition, he issued writs against a large number of other wholesale and

retail distributors of the paper for the same relief.

c) Some of the distributors applied for an order that the actions against them
should be stayed or dismissed as an abuse of process of the court on the
ground that the plaintiff’s purpose in pursuing the actions against them was
not to protect his reputation but for the collateral purpose of destroying the
paper by cutting off its retail outlets.

2) HELD

a) Bridge LJ said: ‘For the purpose of [the] general rule, what is meant by a
‘collateral advantage’? The phrase manifestly cannot embrace every
advantage sought or obtained by a litigant which it is beyond the court’s
power to grant him.

b) Actions are settled quite properly every day on terms which a court could not
itself impose upon an unwilling defendant. An apology in libel, an agreement
to adhere to a contract of which the court could not order specific
performance, an agreement after obstruction of an existing right of way to
grant an alternative right of way over the defendant’s land – these are a few
obvious examples of such proper settlements.

c) In my judgment, one can certainly go so far as to say that when a litigant sues
to redress a grievance no object which he may seek to obtain can be
condemned as a collateral advantage if it is reasonably related to the
provision of some form of redress for that grievance.

d) On the other hand, if it can be shown that a litigant is pursuing an ulterior

purpose unrelated to the subject matter of the litigation and that, but for his
ulterior purpose, he would not have commenced proceedings at all, that is an
abuse of process.

e) These two cases are plain; but there is, I think, a difficult area in between.
What if a litigant with a genuine cause of action, which he would wish to
pursue in any event, can be shown also to have an ulterior purpose in view as
a desired by product of the litigation? Can he on that ground be debarred
from proceeding? I very much doubt it.

a) But on the view I take of the facts in this case the question does not arise
and it is neither necessary nor desirable to try to lay down a precise
criterion in the abstract.’
YB HJ KHALID BIN ABDUL SAMAD V DATUK AZIZ BIN ISHAM & ANOR
( 2012 ) 7 MLJ 301

1) FACTS
a) The plaintiff, a member of the Parti Islam Se-Malaysia (PAS) and Member of
Parliament (MP) for Shah Alam, sued the defendants for libel. The first
defendant was sued in his capacity as Chief Editor of the second defendant's
publication.
b) The second defendant had republished in toto an article that appeared on the
official blog of another MP that portrayed the plaintiff as a person who was
capable of distorting verses from the Holy Quran for his own political ends.
c) That article was made in connection with the plaintiff's role in attempting to
resolve a dispute over the relocation of a Hindu temple in Section 23, Shah
Alam, which had stirred up strong emotions among the residents there. The
defendants said the impugned article did not make any direct reference to the
plaintiff and was not defamatory of him.
d) They relied, inter alia, on the defence of qualified privilege, and said they
merely republished an article that was already posted by another MP on his
official blog and that the same privilege that attached to the article in its first
publication on the blog extended to protect its republication by the second
defendant.
e) The defendants said they felt it was safe to republish the article in the blog
because it had been written by an MP
2) HELD
a) Allowing the claim and awarding the plaintiff RM70,000 in compensatory
damages and costs:
b) The verses quoted from the Holy Quran in the letter written by the plaintiff to
the residents of Section 23 were confirmed by PW2 to be accurate.
c) The second defendant made no attempt to verify the veracity of the article.
No disclaimer was published to make known to its readers that the views
expressed in the article were those of the MP of the blog and not that of the
second defendant and no opportunity was given to the plaintiff to give his
views on the article, thus presenting a one-sided picture of him to the readers
d) The court rejected the argument that as the article was extracted from the
official blog of another MP it was thought safe to rely on it. Here, sensitive
matters were raised and the standard of conduct required of the second
defendant to constitute responsible journalism was much higher. The defence
of reportage or responsible journalism raising qualified privilege was not
applicable in this case.
e) The second defendant's readers were mainly Malay Muslims, and there was
no doubt the article defamed the plaintiff as it held him up to hatred and
contempt of all Muslims who would have read it. It was even more injurious
to the plaintiff as he was an MP on the platform of an Islamist political party.
The article took on an even more serious connotation when it was published
in connection with the relocation of a Hindu temple, which had stirred up
violent emotions
f) The defence of ancillary derivative privilege was rejected as the impugned
article that appeared on the blog of the official website of the MP did not
attract qualified privilege
DATUK WIRA SM FAISAL SM NASIMUDDIN KAMAL V EMILIA HANAFI
& OTHERS

1) FACTS

a) The eldest son to the late Tan Sri Nasimuddin Kamal, the owner of the
NAZA Group and an iconic figure on the automobile and/or property sectors.
b) The 1st Defendant is the ex-wife of the Plaintiff. The parties are divorced
from each other but are currently resolving the other matrimonial issues such
as custody etc. in the Syariah Court
c) The Plaintiff’s action was filed against the 1st Defendant and the other
Defendants for the distribution of a video clip that went viral following an
incident on 20.09.2016 at the Syariah High Court of Kuala Lumpur.
d) In a nutshell, the Defendant published a video clip (‘the Video Clips’) of the
Plaintiff taking his son into his embrace for an overnight visit with him
pursuant to an order of the Syariah Court.
e) The Video Clip, which featured the 1st Defendant and others making remarks
and accompanied by captions disparaging the Plaintiff was meant to cast a
bad light of the Plaintiff was made to look as if he was snatching the child
away from his mother (when this was furthest from the truth).
f) The plaintiff brought a claim for defamation against the defendants for the
distribution of a video clip that went viral following an incident on 20
September 2016 at the Shariah High Court of Kuala Lumpur.
g) The plaintiff’s claim had been struck out except for that against the sixth
defendant which had been settled. In the same action, the first defendant
counterclaimed for assault and battery based on incidents allegedly occurred
since 2011.
h) The plaintiff in the present action filed an application (‘L 71’) to strike out
the first defendant’s counterclaim pursuant to O 18 r 19(1)(b), (1)(c) and
(1)(d) and/or O 15 r 5(2) of the Rules of Court 2012.
i) The issue arose for the court’s determination was whether the relief claimed
in the first defendant’s counterclaim was sufficiently connected with or allied
to the subject matter of the principal claim.

2) HELD

a) Allowing the application:

b) The first and most important point to note was that the principal and the
counterclaim arose out of different incidents which were separate and distinct
from each other.
c) Likewise, the causes of action and reliefs prayed for were entirely different.
Based on the above grounds, the first defendant had clearly failed to
demonstrate that her counterclaim in terms of the reliefs claimed and
surrounding facts/factual matrix was sufficiently connected to or had material
affinity with the principal claim for the counterclaim to be maintained in the
same action.
d) Therefore, the first defendant had failed to satisfy the establish test for the
present counterclaim to be sustainable in law
 DATO’ SRI MOHD NAJIB TUN HAJI ABDUL RAZAK & ANOR V MOHD
RAFIZI RAMLI & ANOR

1) FACTS

a) The first appellant was the Prime Minister of Malaysia while the second
appellant was his wife (‘the plaintiffs’).

b) They filed an action at the High Court for defamation against the respondent
(‘the first defendant’) and one Chan Chee Kong (‘the second defendant’).
According to the plaintiffs, the first defendant made defamatory remarks
against them in his speech at a forum when the latter suggested that the
plaintiffs stole and pocketed people’s monies from the removal of oil
subsidies for their personal gains.

c) The speech was then uploaded by the second defendant on Youtube and
Media Rakyat’s webpage and Facebook. In addition to filing two separate
defences, namely fair comment and qualified privilege, the defendants also
counterclaimed for damages in tort and abuse of court process and
victimisation.

d) The plaintiffs filed two separate applications to strike out part of the
defendants’ counterclaim and defence of fair comment (‘encls 16 and 21’),
on the ground that the defendants’ statements were not comments but pure
allegations of facts which did not qualify to sustain a defence of fair
comment.

e) Therefore, the plaintiff submitted that the defence of fair comment ought to
be struck out. Enclosures 16 and 21 were dismissed on the grounds that:
i. The impugned paragraphs were not clearly unsustainable and not
plainly obvious to merit striking out
ii. The court would not be able to make its findings as to whether the
impugned statements were not comments purely by looking at the
pleadings. Hence the present appeals.

2) HELD

a) Held, allowing appeals:

b) To constitute a defence of fair comment:

(i) The words complained of were comments, although they may consist
of or include inferences of facts;
(ii) The comment was a matter of public interest;
(iii) The comment was based on facts; and
(iv) The comment was one which a fair-minded person could honestly
make on the facts proved. The court is fully-entitled to decide that a
particular statement was a comment and not a bare or naked statement of
facts when it contains a person’s belief for his conclusion, which was
based on or drawn from certain facts. However, it is not always necessary
 to decide whether a particular statement is a comment or otherwise by
adducing evidence from witnesses.

c) By just looking at the pleadings, it became clear that the statement made by
the first defendant was not an opinion or what the first defendant believe, or
his comment on any particular fact. When a comment was based upon facts,
it could not be on the facts invented by the maker himself. It must rest upon
facts which were presumed to be true. If the facts never existed, then the
defence must fail. The defendants were duty-bound to particularise what
were the facts relied upon in order to support that the allegations made were
their true beliefs or opinions and not to leave to the plaintiffs and the court to
speculate, pick and choose for them.

d) The impugned statement showed clearly and plainly that it was not a
comment but a mere allegation or statement of facts. Looking at the speech
as a whole and the first defendant’s defence, none of the facts pleaded
supported the allegation that the plaintiffs stole and pocketed people’s
monies from the removal of the oil subsidies for their personal gains to
enable characterisation that the statement was a comment or an opinion
premised upon some facts. Without the underlying facts which could form
the basis of a comment, the impugned statement could not be said to be a
comment that could qualify for a defence of fair comment .

e) The High Court judge erred in law in deciding that this was not a plain and
obvious case for striking out pursuant to O 18 r 19 of the Rules of Court
2012. There was no necessity for further enquiries to decide whether or not
the spoken words in this case were comments or otherwise
 ZAHIDA MOHAMED RAFIK V NOOR AZMAN AZEMI ( 2019 ) 3 MLJ 141

1) FACTS

a) At all material times Zahida bt Mohamed Rafik (‘the respondent’) was an

actress, while Noor Azman bin Azemi (‘the appellant’) was her personal
driver. On 29 February 2012, the respondent had instructed the appellant to
bank in the sum of RM200,000 in cash and a cheque in the amount of
RM120,000 into her bank account.

b) When she was unable to contact the appellant, the respondent made a police
report that the appellant had run off with cash amounting to RM200,000.

c) After making the police report and while she was leaving the police station,
the respondent was approached by reporters, who wanted to know why the
respondent had visited the police station. The respondent responded that she
had lodged a police report against the appellant and repeated the contents of
the police report to the reporters.

d) On 3 March 2012, the Harian Metro published an article about the contents
of the police report made by the respondent. The appellant commenced legal
proceedings against the respondent for defamation in relation to the
impugned words uttered by the latter to the reporters, which was
subsequently published in Harian Metro.

e) The appellant contended that the impugned words referred to him, and that in
their natural and ordinary meaning the words meant that he was dishonest
and immoral.

f) The appellant further contended that the impugned words, which were false
and maliciously published, had tainted his reputation and affected his
opportunity to get a new job.

g) The respondent raised the defence of justification and absolute privilege. She
said she had entrusted the cash sum of RM200,000 with the appellant to be
banked into her bank account and that the impugned words enjoyed ancillary
privilege as it was a regurgitation of the police report which was protected by
absolute privilege.

h) The respondent also counterclaimed for the return of RM200,000. The High
Court found that the impugned words, which referred to the appellant, were
clearly defamatory and that the appellant had proved on the balance of
probabilities, his claim of defamation against the respondent.

i) The High Court also found that the impugned words were not covered by
absolute privilege and that the respondent had failed to prove the defence of
justification. As such, the High Court allowed the appellant’s claim and
awarded him general damages in the sum of RM150,000 with costs of
RM40,000 and dismissed the respondent’s counterclaim.
 j) On appeal, the Court of Appeal found the impugned words in the published
article in the Harian Metro to be a regurgitation of the words in the police
report and thus held it attracted the same privilege in an ancillary manner as
that attached to the police report.

k) Further, the Court of Appeal held that the respondent had established on the
balance of probabilities the truth of the statement in her police report that the
appellant had run off with the RM200,000 that she entrusted him to bank into
her account.

l) The Court of Appeal thus allowed the respondent’s counterclaim of

RM200,000 with costs of RM50,000. Dissatisfied with this decision, the
appellant sought and obtained leave to proceed with the present appeal
wherein he raised the question of law as to whether the publication of the
contents of a police report by its maker to the public at large was protected
by absolute privilege.

2) HELD

a) Dismissing the appeal:

b) The decision of this court in Lee Yoke Yam v Chin Keat Seng (‘Lee Yoke
Yam’s case’) had made clear that on the basis of public policy consideration,
absolute privilege was accorded to statements made in a police report
irrespective of whether there was an element of malice on the part of the
complainant.

c) Thus, no action for defamation would lie against the maker of a police report.
In the instant case, there was no doubt that the contents of the statement in
the police report lodged by the respondent in their literal and ordinary
meaning were understood to mean, among others, that the appellant was a
thief.

d) Thus, if the appellant’s suit against the respondent claiming relief for
defamation and damages related only to the police report lodged by the
respondent against the appellant, it was clear that the appellant’s claim could
not succeed because the police report was absolutely privileged and therefore
not actionable for the purpose of the law of defamation. However, in the
instant case the respondent had repeated what was stated in the police report
to the reporters at a press conference.

e) The crucial difference between the present case and Lee Yoke Yam’s case
was that the claim for defamation by the appellant was based on the
subsequent publication of the contents of the police report to the public at
large that was later published in Harian Metro. Thus, although Lee Yoke
Yam’s case was not applicable to the present case, the Court of Appeal in the
present case ignored or overlooked this fact .

f) At present there seemed to be no authority to support the proposition that as a

police report was an absolutely privileged document, the subsequent
 publication of it would also enjoy the protection of absolute privilege in an
ancillary manner. Instead, the extension of absolute privilege should be
resisted unless its necessity was demonstrated.

g) Therefore, absolute privilege would not attach to the subsequent publication

of the contents of the police report to the public at large save where the
contents were made in or in connection with judicial or quasi-judicial
proceedings.

h) Further, the respondent in the present case had not demonstrated the
necessity for her to publish the contents of the police report to the public at
large. She had offered no justification or explanation as to why it was
necessary or reasonable for her to repeat the contents of the police report at
the press conference beyond saying that she merely answered the questions
posed to her by the reporters .

i) It is trite law that the defence of justification was a complete defence to a

defamation action. In the present case, the appellant’s contention that a
serious miscarriage of justice had occurred in that the Court of Appeal
misdirected itself in requiring the plaintiff to establish the defence of
justification had no merit.
j) The appellant’s complaint in this regard arose from a mistaken reading of the
judgment of the Court of Appeal.

k) Based on a careful reading of the judgment of the Court of Appeal it was

clear that what the Court of Appeal meant was that as the appellant had
instituted the defamation action, he would bear the burden of proving that the
impugned statements were in fact defamatory in nature.

l) It was wrong of the appellant to suggest that the Court of Appeal required
him to establish the defence of justification as it was trite that the burden
would lie on the respondent to establish the defence of justification. In the
circumstances, no serious miscarriage of justice had occurred to warrant
appellate intervention .