1.

0 INTRODUCTION

Based on the manual Principles of Corporate Compliance (OBM340),

defamation can be define as the publication statement that can give the effects to the
plaintiff reputation then the society will think him abuse the power. There are three
types of defamation are libel, slander, and innuendo. The definition of libel is the
defamation statement in a permanent form. Slander is means the defamatory
statement that was made orally, or in some transient form of expression, example
slander may be expressed merely by gesture. And the innuendo are statement may
be defamatory by innuendo for example even though it may not appear directly to
cast aspersion upon a person’s private character, competence, or professional
morals, it may have an indirect, hidden or extended meaning, commonly referred to
as innuendo.

From the article that we choose, this cases related with the defamation cases
which is known as the libel case. The defamation about the Lim Kit Siang sued the
Utusan Malaysia because defaming it in an article on the appointment of the party's
Central Working Committee (CEC) on 18 August 2013. On 10 December 2014 Lim
Kit Siang today won his defamation case against Utusan Malaysia’s publisher over
the paper’s “Father Augustus Chen” report, and was awarded RM250,000 in
damages by a High Court here.

2.0 BACKGROUND OF THE CASE

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2.1 THE TYPE OF CASE

The type of case that we choose is a defamatory case. Defamation shall

consists of the publication to a third party of matter in which all the circumstances
would be likely to affect a person adversely in the estimation of reasonable people
generally.

In other words, defamation is the publication of a statement which affects a

person’s reputation in that it tends to lower him in the estimation of right-thinking
members of society generally by making them shun or avoid him. The case that we
research is between Lim Kit Siang and Utusan Melayu (Malaysia) Bhd.

The reason of summoned started from the article titled “Kit Siang manipulated
CEC?” that published in Utusan Melayu (Malaysia) Bhd. dated 18 August 2013. The
case is associated with defamatory advisor Democratic Action Party (DAP) Lim Kit
Siang on election Central Executive Committee (CEC) party. Lim Kit Siang filed the
case on September, 2013. He claimed that the statement is a fake.

In addition, the type of defamation that is occurred in this case is the libel.
Libel is the defamatory statement or representation in a permanent form. In this
case, libel happened when journalist of the Utusan Melayu (Malaysia) Bhd., Kasthuri
K. Manimaran had published an article a title “Kit Siang manipulated CEC?” on the
18 August 2013 and published in Utusan Melayu (Malaysia) Bhd. newspapers.

Legal action for libel may be taken where:

i. The publication in permanent form of a false statement which tends to

expose a person to hatred, ridicule or contempt.
ii. It can be made in writing, printing or some other permanent form such as
the broadcasting of words by radio.
iii. It is not necessary for the plaintiff to prove actual damage as it can be
proved with the statement being made in the permanent form.

2.2 THE COURTS

2.2.1 The High Courts

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 The jurisdiction of the High Court is original, appellate and supervisory. It
has unlimited criminal and civil powers. Any civil matter which cannot be
determined in the subordinate courts is heard before the High Court. This case
involved the high court of Malaysia.

The High Court Judge Datuk Yeoh Wee Siam ruled that on the balance of
probability, Lim had proven his claim against Utusan Melayu and she ordered the
company to pay RM250,000 damages to Lim and also RM25,000 costs for the
court proceedings in the High Court.

2.2.2 The Court of Appeal

The Court of Appeal constitutes the President of the Court of Appeal and
up to ten Court of Appeal Judges. The Court of Appeal is heard by 3 judges or
such greater uneven number of judges. The Court of Appeal has jurisdiction to
ear and determine any appeal against any High Court decision on criminal
matters.

The case was bought to this Court of Appeal three-man panel chaired by
Justice Datuk Lim Yee Lan, in a unanimous decision, dismissed Utusan Melayu's
appeal and also ordered the company to pay RM15 000 in legal costs.

2.3 THE JUDGES

2.3.1 High Court Judge – Yeoh Wee Siam

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 Yeoh Wee Siam started her career as a Federal Counsel at the Advisory
Division, Attorney General's Chamber on April 25, 1977. Then, she served as
Senior Assistant Lawmakers of Parliament at the Drafting Division, Attorney
General's Chambers in 1998. In 1999, YA Datuk Yeoh Wee Siam was appointed
Head of Legal Division at the Ministry of Communications and Multimedia
Malaysia. She was appointed Chairman of the Malaysian Industrial Court on 01
December 2000.

Then, she assume the work of the Speaker of the Federal Court of
Malaysia in 2006. She was also appointed Judicial Commissioner of the Petaling
Jaya High Court (Criminal Division) in 2009. Appointed as High Court Judge at
the High Court of NCVC 4 (Civil Division) of the Kuala Lumpur High Court on 15
June 2012. Appointed as Court of Appeal Judge on September 23, 2017 until
now.

She also settles the case that Lim Kit Siang win the case against Utusan
on 10 December 2014. She ordered Utusan Melayu (Malaysia) Bhd. company to
pay damages RM250,000 to DAP adviser Lim Kit Siang for defaming him in an
article titled “Kit Siang manipulated CEC?” in relation to the appointment of the
party’s Central Executive Committee (CEC).

2.3.2 Court of Appeal Judge – Lim Yee Lan

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 YA Datuk Lim Yee Lan was born on 30 December 1951 in Johor Bharu,
Johor. YA Datuk obtained LLB Honors Degree (Hons) from the University of
Malaya.

YA Datuk has started her career in the field of Judicial and Legal Services
in 1976 as Legal Officer in the Attorney General's Chambers. In 1979 YA Datuk
Lim Yee Lan was appointed Legal Officer at the Ministry of Public Works and
Public Utilities of Kuala Lumpur. On 5 September 2005, YA Datuk was appointed
as High Court Judge, Kuala Lumpur and on April 4, 2012, YA Datuk was
appointed as Court of Appeal Judge, Putrajaya until now.

Datuk Lim Yee Lan also handle the case that Lim Kit Siang against Utusan
Melayu (Malaysia) Bhd. at the Court of Appeal. Datuk Lim Yee Lan, who heads
the panel of judges, said the judge who was speaking the case was wrong in
making the decision. She confirms the High Court’s decisions that decide Utusan
Melayu are guilty in defamatory Lim Kit Siang in an article.

3.0 ISSUES AND FINDINGS

3.1 FACTS OF CASES

3.1.1 The Defendant

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 In court, defendant defined as the person who gets sued or accused. They
have to defend their innocence or reputation. In criminal cases, the defendant is
the person accused of the crime. In civil matters, the defendant is refers to the
person that is being sued. In some states or in certain types of actions, the
defendant is called the respondent. The term respondent is also used to
designate the person responding to an appeal.

Based on the Lim Kit Siang case, the defendant refers to Utusan Melayu
(Malaysia) Bhd. which company that published the article and the journalist,
Kashthuri K. Manimaran, the person wrote the article about Lim Kit Siang that title
“Kit Siang manipulated CEC?.” Kashthuri said, he took the content of article from
the "Equity Report" written by “Father Augustus Chen.” The editor of article “Kit
Siang manipulasi CEC?” is Zulkifli Jalil.

Kashthuri K. Manimaran, 31 year old, fired from Rocket, then go work for
Utusan Melayu in two years.

Utusan Melayu (Malaysia) Berhad is the company engaged in the

publication, printing and distribution of newspapers. The Company's segments
include publishing, distribution and advertisements, which is engaged in publishing
and distribution of newspapers, magazines and books, and also indoor and
outdoor advertising. Printing, this is engaged in printing of magazines and books,
Information technology and multimedia, and Investment holding, management
services and others. Utusan Melayu (Malaysia) Berhad publishes newspapers,
which include Utusan Malaysia, Mingguan Malaysia, Kosmo! And Kosmo! Ahad
while magazines, it include Mastika, Saji, Infiniti and Wanita.

3.1.2 The Plaintiff

The meaning of plaintiff is the person who initiates a lawsuit. Besides,
plaintiff is a person who brings a case against another in a court of law which is

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the plaintiff commenced an action for damages. The person who initiates a
lawsuit by filing a complaint is called the plaintiff. When the document that initiates
a lawsuit is called a petition rather than a complaint. In this case, the plaintiff is
Lim Kit Siang, 77.

Lim Kit Siang is a first elected Member of Parliament for Kota Melaka in
1969, Lim Kit Siang is one of the most senior members of the august house. He
was born in February 20 1941. Apart from 1999 - 2004, Kit Siang served as MP in
various constituencies in four states:

 Bandar Melaka (1969 - 1974)

 Kota Melaka (1974 - 1978)
 Petaling Jaya (1978 -1982)
 Kota Melaka (1982 - 1986)
 Tanjong (1986 – 1999)
 Ipoh Timur (since 2004)

He also represented:
 Kubu, Melaka (1974 - 1982)
 Kampong Kolam, Penang (1986 - 1990)
 Padang Kota, Penang (1990 -1995) as state assemblyman.

Being the fearless voice of the people inside and outside parliament and
state assemblies, advocating their aspirations and hopes, he was repeatedly
politically persecuted by his opponents in the ruling class.

In 1969 Kit Siang was detained under the Internal Security Act for 18
months. Ten years later he was convicted of five charges under Official Secrets
Act for exposing an inappropriate arms deal between the government and a Swiss
company. He was again a victim of the Internal Security Act in Operation Lallang
in 1987 and was held without trial for 17 months. Kit Siang first emerged on
Malaysian political scene when he was National Organizing Secretary of the DAP
from 1966 to 1969.
At the same time he was also entrusted to edit the party's organ, the
Rocket. The course of the political landscape changed when he was promoted to
Secretary General in 1969 after being acting SG for a short period during a

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 turbulent period in the country's history. He led the party in that capacity until
1999 when he was elected Party Chairman.

From 2004 on he was tasked to lead the party's parliamentary caucus in

the newly created position of Chairman of the Central Policy and Strategic
Planning Commission. Kit Siang is currently the DAP Parliamentary Leader. He
published 34 books since 1978.

3.2 THE CHRONOLOGY OF THE CASE

18 August 2013

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 Utusan Melayu (M) Bhd. has published an article titled “Kit Siang Manipulasi
CEC?” during that date. The article wrote by journalist Kasturi K Manimaran.
The contents of that article cited from the book 'Equity Reports' defamatory Kit
Siang in the election of the Central Executive Committee (CEC) in 2012,
supposedly to secure its position in the party. One of the charges was that 753
delegates were not informed of the DAP Congress, as well as the existence of
547 phantom voters from Penang.

21 August 2013
 DAP gives 48 hours to Utusan Malaysia to prove his allegations against DAP
parliamentary chief Lim Kit Siang and DAP secretary general Lim Guan Eng.

27 September 2013
 Lim Kit Siang filed the defamation suit against Utusan Melayu for printing the
article, “Kit Siang Manipulasi, Pemilihan CEC” (Kit Siang manipulated the CEC
election) in Mingguan Malaysia ― which he said has damaged his reputation.

3 January 2014
 Utusan Melayu (M) Bhd denied slandering DAP adviser Lim Kit Siang over the
party's central executive committee (CEC) election.

21 August 2014
 The Kuala Lumpur High Court has set a copy of the pamphlet which has been the
basis for the Malaysian Mingguan press defamation against DAP MP Lim Kit
Siang not to be a proof of trial. This is because a copy of the book titled 'Equity
Report', written by an individual named 'Father Augustus Chen' could not be
authenticated
 Lim Kit Siang as the first plaintiff’s witness had testified that the allegations were
a “figment of imagination” and “blatant and outright lies”, also claiming that
“Father Augustus Chen” was a “total invention” and the Utusan article was part of
“a plot” against him and DAP leaders.

26 September 2014

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 Utusan Malaysia’s reporter Kasthuri K Manimaran insisted that the purported
“Father Augustus Chen” figure exists, but admitted that she had never met or
spoken personally to this person.

27 September 2014
 Writer of the Malaysian weekly defamation against Lim Kit Siang, Kasturi K
Manimaran admitted that the article was aimed at bringing about a reputation and
aggravating the image of the DAP veteran in the eyes of the people. He admitted
that when asked by Kit Siang lawyer, Gobind Singh Deo at the Kuala Lumpur
High Court, Jalan Duta this morning.
 The Gelang Patah MP filed a lawsuit against Utusan Melayu (M) Bhd, following
the publication of the article. In his statement of claim, he described the article
defamatory and sought for general damages, severe damages and exemplary
damages as a result of the defamation

10 December 2014
 Lim Kit Siang won his defamation case and was awarded RM250,000 in
damages by a KL High Court.
 High Court Judge Datuk Yeoh Wee Siam ruled that on the balance of probability,
Lim had proven his claim against Utusan Melayu and she ordered the company
to pay RM250,000 damages to Lim and also RM25,000 costs for the court
proceedings in the High Court.

3.3 THE JUDGMENTS

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 Firstly, the case was bought to this Court of Appeal three man panel chaired
by Justice Datuk Lim Yee Lan, in a unanimous decision, dismissed Utusan Melayu
(Malaysia) Bhd. appeal and also ordered the company to pay RM15,000 in legal
costs.

High Court Judge Datuk Yeoh Wee Siam ruled that in the probable
coincidence, Lim Kit Siang had proven his allegations against Utusan Melayu. The
High Court judge ordered the company to pay RM250,000 to pay the penalty to Lim
Kit Siang for defamation.

Other than that, The Court of Appeals decided that Utusan Melayu would pay
RM25,000 to pay the cost of Lim Kit Siang's proceedings in Court.

However, the defamatory case of Lim Kit Siang and Utusan Melayu
(Malaysia) Bhd. is under the defences of qualified privilege. Qualified privilege is if
the plaintiff can prove that the defamatory statement complained of was made
maliciously. For example, by giving undue publication, a plea of qualified privilege is
of no avail to the defendant.

If however, malice is not proven, qualified privilege extends to the following:

 Fair and accurate reports of proceedings in Parliament, appearing in
newspaper or elsewhere.
 Fair and accurate reports of judicial proceedings to which the public has
access.
 Fair and accurate reports of public meetings, if publication is for the benefit of
the public.
 Fair and accurate reports of proceedings of certain courts and legislatures
contained in newspapers and certain periodicals.

Based on the case of Lim Kit Siang and Utusan Melayu, it can related with the
qualified privilege where Utusan Melayu has filed a defamatory article on Lim Kit

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Siang entitled "CEC manipulation Kit Siang?" in the weekly Malaysian newspaper
under the Utusan Melayu company. Lim Kit Siang has denied the statement written in
the article and he has proved to the High Court that the content in the article is
incorrect.

4.0 CONCLUSION

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The status of the case
In conclusion, the defamation case between Lim Kit Siang and Utusan
Melayu (Malaysia) Bhd. was been solved by the High Court.

The High Court make a decision that the company Utusan Melayu (Malaysia)
Bhd. is guilty when that company failed to prove that the “Father Augustus Chen” is
exist. This is because, journalist Kashthuri K. Manimaran said, her took the content
of article from the “Equity Report” written by “Father Augustus Chen.”

In addition, the Court of Appeal confirm the High Court’s decision that decide
Utusan Melayu are guilty in defamatory Lim Kit Siang in an article.

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