CRIMINAL DEFAMATION AS PROVIDED IN SECTION 499 OF THE PENAL CODE

499. Whoever, by words either spoken or intended to be read or by signs, or by visible

representations, makes or publishes any imputation concerning any person, intending to
harm, or knowing or having reason to believe that such imputation will harm the reputation
and shall also be liable to fine of such person, is said, except in the cases hereinafter
excepted, to defame that person.

First Exception: It is not defamation to impute anything which is true concerning any person,
if it is for the public good that the imputation should be made or published. Whether or not
it is for the public good is and shall also be liable to fine a question of fact.

Second Exception: It is not defamation to express in good faith any opinion whatever
respecting the conduct of a public servant in the discharge of his public functions, or
respecting his character, so far as his character appears in that conduct, and no further.

Third Exception: It is not defamation to express in good faith any opinion whatever
respecting the conduct of any person touching any public question, and respecting his
character, so far as his character appears in that conduct, and no further.

Fourth Exception: It is not defamation to publish a substantially true report of the

proceedings of a Court, or of any Legislative Assembly, or of the result of any such
proceedings.

Fifth Exception: It is not defamation to express in good faith any opinion whatever
respecting the merits of any case, civil or criminal, which has been decided by a Court, or
respecting the conduct of any person as a party, witness or agent, in any such case, or
respecting the character of such person, as far as his character appears in that conduct, and
no further.

Sixth Exception: It is not defamation to express in good faith any opinion respecting the
merits of any performance which its author has submitted to the judgment of the public,
or respecting the character of the author so far as his character appears in such
performance, and no further.

Seventh Exception: It is not defamation in a person having over another any authority,
either conferred by law, or arising out of a lawful contract made with that other, to pass in
good faith any censure on the conduct of that other in matters to which such lawful
authority relates.

Eighth Exception: It is not defamation to prefer in good faith an accusation against any
person to any of those who have lawful authority over that person with respect to the
subject matter of accusation.

Ninth Exception: It is not defamation to make an imputation on the character of another,

provided that the imputation be made in good faith for the protection of the interests of
the person making it, or of any other person, or for the public good.

Tenth Exception: It is not defamation to convey a caution, in good faith, to one person
against another, provided that such caution be intended for the good of the person to
whom it is conveyed, or of some person in whom that person is interested, or for the public
good.

In proving the existence of circumstances as a defence under the 2nd, 3rd, 5th, 6th, 7th, 8th,
9th, or 10th exception, good faith shall be presumed unless the contrary appears.
 PP V MOHAMAD BIN SABU [2017] 10 MLJ 273

The accused was charged with the offence of criminal defamation under s 499 of the
Penal Code and punishable under s 500 of the same. The accused was also offered an
alternative charge for the same offence. The said offence was allegedly committed by the
accused in his political speech during a public lecture on 21 August 2011. The accused stated
in the said speech, in relation to Bukit Kepong film produced by Jins Shamsudin, that the
Bukit Kepong police was British police and the attackers were the warriors of independence
headed by Mat Indera but the film depicted the attackers of Bukit Kepong police stations as
traitors. The said speech was televised in TV3 and reported in the front-page headline of the
‘Utusan Malaysia’ newspaper under the caption ‘Mat Sabu Hina Pejuang’ on 27 August
2011.
The court dismissed the appeal and affirmed the decision of the sessions court.

A. THE ELEMENTS OF CRIMINAL DEFAMATION UNDER SECTION 499 OF THE PENAL CODE

“[31] The public prosecutor has conceded that all of the following elements as held by
Amelia Tee Hong Geok J in PP v Ab Latif Muda [2014] 1 LNS 1450 following Ratanlal &
Dhirajlal’s Law of Crimes (26th Ed) must be proved beyond reasonable doubt to convict the
accused:
(i) the imputation in question consisted of words, spoken or intended to be read or of
signs;
(ii) the imputation concerned the complainant;
(iii) the imputation emanated from the accused;
(iv) the accused made or published it; and
(v) the accused intended thereby to harm the reputation of the complainant or that he
knew or had reason to believe that it would do so.
Elements (i)-(iv) are the actus reus whilst element (v) is the mens rea.”

B. THE PUBLICATION MUST BE EXAMINED AS A WHOLE

 “[33] It is my view that generally in an action for defamation; be it civil or criminal, the
publication must be examined as a whole. In Keith R Evans The Law of Defamation in
Malaysia & Singapore (2nd Ed), it is provided as follows:
In considering whether such ordinary inferences arise from the words, the whole publication
must be examined, including among other things, the context in which the words are
used, the nature of the publication and the emphasis placed on any particular words.

Thus in Binaan Sentosa Sdn Bhd v Ng In Kun & Anor [2011] MLJU 897; [2012] 1 CLJ 232 , See
Mee Chun JC (now J) held as follows:
[11] I am mindful too that in determining whether the words complained of are defamatory
one must take into account not only the actual words but the context in which they were
used. This is because there may be other words which take away the sting. Refer to Soh
Chun Seng v CTOS-Emr Sdn Bhd [2004] 5 CLJ 46 …”
.
.
“[37] Since the context of the impugned statements in the political speech of the accused did
not concern the complainants, it follows that element (ii) of the offence as conceded to by
the public prosecutor in para 31 is unmet.”

C. THE PUBLICATION MUST BE EMANATED FROM THE ACCUSED

“It is only natural in my view that the complainants became infuriated and reacted in the
way they did after reading the article. However in fairness to the accused, these passages
were never uttered by him in the speech and it is doubtful that he intended to injure the
reputation or even to harm the feelings of the complainants in the way made out by
Utusan Malaysia when he made that speech.
[41] In the premises, I am of the view the learned sessions court judge properly and correctly
held that the prosecution has not sufficiently proven its case when the complainant
themselves did not personally hear the political speech. It is clear to me that elements (iii)
and (v) of the offence conceded to in para 31 above have hence in this regard not been
established by the prosecution”
 HARBAN SINGH SIDHU V PUBLIC PROSECUTOR [1973] 1 MLJ 41

This was an appeal against the conviction of the appellant for an offence of
defamation under section 500 of the Penal Code. The criminal proceedings against the
appellant were started on a complaint filed by the Attorney-General who in his complaint
alleged that the appellant defamed Mr. Lee Kuan Yew, the Prime Minister, by spoken words.
On appeal it was contended (1) that the learned trial judge had not directed his mind to the
question whether the words alleged to be defamatory were true; (2) that the learned judge
failed to direct his mind to the question whether or not the impugned words were spoken in
good faith and (3) that the learned trial judge had exercised his discretion wrongly and acted
contrary to section 173(m) of the Criminal Procedure Code in refusing the appellant's
application to issue a subpoena to the Prime Minister of Singapore.
The appeal against conviction and sentence is dismissed.

A. BURDEN OF PROOF IN PROVING THE BENEFIT OF EXCEPTIONS

“Under section 105 of the Evidence Act, if an accused person claims the benefit of
Exceptions, the burden of proving his plea that his case falls under any of the Exceptions is
on the accused. That burden is discharged if the accused person succeeds in proving a
preponderance of probability. Thus for the appellant at the trial to succeed on the First
Exception, the onus was on him to prove that the impugned words spoken by him were
true.”

B. DEFINITION & REQUIREMENT OF THE GOOD FAITH

“…The expression "good faith" where it appears in the Penal Code is defined by section 52
which provides that "nothing is said to be done or believed in good faith which is done or
believed without due care and attention". On the requirement of good faith section 500
also provides as follows: –
"Explanation to Exceptions – In proving the existence of circumstances as a defence under the 2nd,
3rd, 5th, 6th, 7th, 8th, 9th or 10th exception good faith shall be presumed unless the contrary
appears".”
.
.
“…As Gajendragadkar C.J. who delivered the judgment of the Supreme Court of India in H
Singh v State of Punjab [1966] CLJ 82 at p 88 said at page 88: –
"Thus, it would be clear that in deciding whether an accused person acted in good faith
under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a
question to be considered on the facts and circumstances of each case – what is the nature
of the imputation made; under what circumstances did it come to be made; what is the
status of the person who makes the imputation; was there any malice in his mind when he
made the said imputation; did he make any enquiry before he made it; are there reasons
to accept his story that he acted with due care and attention and was satisfied that the
imputation was true? These and other considerations would be relevant in deciding the plea
of good faith made by an accused person who claims the benefit of the Ninth Exception."
 REG V STRAITS TIMES PRESS (MALAYA) LTD & ANOR [1960] 1 MLJ 113

This was an appeal from the District Judge who acquitted the respondents on the
ground that they had established a case under Exceptions 3 and 6 of section 499 of the
Penal Code. The appellant contended that the learned District Judge was premature in
acquitting the accused and asked that the matter should be remitted for completion and
determination according to law.
The appeal dismissed and the order of acquittal affirmed.

A. PRESUMPTION OF GOOD FAITH

“Further, there is no reason to believe and no ground for supposing that the newspaper
report was inaccurate or compiled without due care and attention; nor is there anything in
the circumstances of the matter to rebut the presumption of good faith.

In my opinion no injustice has resulted from the action of the learned District Judge in
acquitting the accused without calling upon their defence, in that it would seem that he
appears to have formed the view, with which I am not disposed to disagree, that the record
of the prosecution case itself discloses a situation from which it may reasonably be
inferred that the relevant exceptions to section 499 of the Penal Code are applicable.”
POINTS FOR DEFENCE

1. ESTABLISH THE DOUBT WITHIN THE ELEMENTS OF THE OFFENCE

2. ESTABLISH THE PROVE TO PUT THE CASE WITHIN THE EXCEPTIONS
3. ESTABLISH THE PRESUMPTION OF “GOOD FAITH” AS PROVIDED IN SECTION 499