IN THE COURT OF
APPEAL OF MALAYSIA
(Appellate
Jurisdiction)
CIVIL APPEAL NO.
S-02-691-03/2012
BETWEEN
DATUK YONG TECK
LEE
(Sued in his
personal capacity and as
an officer of the
2nd Appelant)
... 1st APPELLANT
SABAH PROGRESSIVE
PARTY
... 2nd APPELLANT
AND
DATUK HARRIS MOHD
SALLEH
... RESPONDENT
In the matter of
Suit No. K22-128-2010 in the High Court in Sabah
and Sarawak at
Kota Kinabalu
Between
Datuk Harris Mohd
Salleh
... Plaintiff
and
Datuk Yong Teck
Lee
Sued in his
personal capacity and as
an officer of the
2nd Defendant)
... 1st Defendant
Sabah Progressive
Party
... 2nd Defendant
CORAM:
LINTON ALBERT, JCA
ANANTHAM
KASINATHER, JCA
ZAKARIA BIN SAM,
JCA
ANANTHAM
KASINATHER, JCA
DELIVERING
JUDGMENT OF THE COURT
BACKGROUND FACTS
1. On 6th June 1976, two Nomad aircraft were scheduled to
return to Kota Kinabalu (K.K), one via Kudat and the other directly to KK. The
nomad aircraft scheduled to return to KK directly, never made it back as it
crashed near Sembulan. A substantial number of the cabinet members of the then
ruling party of the State Government of Sabah namely the Berjaya party
including the then Chief Minister of the State Tun Fuad Stephens were killed in
the crash.
2. There was an air of unease concerning the crash
because there were rumours that two prominent West Malaysians and the then
Chief Minister of Sarawak, who were in the original passenger list for this
flight disembarked just before this Nomad aircraft departed for KK. One of the
two prominent West Malaysians was the then Finance Minister of Malaysia Tengku Razaleigh.
The rumours concerned the role played by the respondent in the disembarkation
of the aforesaid three passengers. The role played by the respondent was of
considerable public interest partly because the respondent was about the only
senior member of the State Cabinet to be not on the flight and the respondent
assumed the role of Chief Minister following the crash.
3. The cause of the crash naturally formed the subject
matter of investigations conducted by the Federal Government of Malaysia and
the State Government of Sabah. Although the results of these investigations
were never made public, books bearing the title “Harris Salleh of Sabah” and
“The Sabahan-The Life and Death of Tun Fuad Stephen” speculated on the causes
of the crash. The contents of these books and other contemporaneous literature
on this subject in the media only
served to fuel speculation on the real causes of the
crash, in the absence of an official report. There is no doubt that sabotage
was one of the many causes speculated by the public. It is safe to say that the
speculation over the causes for this crash was on the wane by the year 2010
although on 6th June every year, there is an Official State Memorial conducted
by senior state officials and members of the victim’s family at the crash site
to commemorate the crash. However, this whole issue was reignited by the speech
of one of the two West Malaysians who had disembarked from the aircraft on that
fateful day. The incident that reignited interest on this subject was the visit
to Sabah of Tengku Razaleigh and a speech that he delivered on 2nd April 2010.
On this date, Tengku Razaleigh
addressing an audience at a forum at Penampang, Sabah
revealed for the first time in public that he was already seated and strapped
to his seat in the aircraft together with the late Tun Fuad and the Tengku
Bendahara Pahang when the respondent came on board and invited him to leave the
aircraft
and board another aircraft to visit the respondent’s
cattle farm in Banggai. Tengku Razaleigh then, in turn, according to Tengku’s
speech at this forum, invited Tun Rahman Yaakub and Tengku Bendahara Pahang to
join him to visit the cattle Farm.
5. Although the appellant was not a member of the
audience, several witnesses who were present at this forum, claimed that there
was complete silence following Tengku’s revelation of this information. The
revelation was quickly picked up by the local media and subsequently published
in the Daily Express on 4th April 2010. The appellant upon receiving this
information, according to him, immediately checked to verify the fact of this
revelation from persons present at the forum. Thereafter the appellant issued a
statement on 4th April 2010 and which statement was published in the Daily
Express on 5th April 2010 under the caption “SAPP WANTS FILE ON TRIPLE SIX
TRAGEDY PROBE REOPENED”. This statement essentially called for a reinvestigation
of the crash in the light of this new information. Two other persons namely (DW
3) and (DW 6) also made similar statements.
6. On 7th April 2010, the respondent issued a statement
disputing Tengku Razaleigh’s version of the events that transpired on 6th June
1976. By this statement, the respondent also challenged the appellant to repeat
his earlier statement with the threat to institute proceedings against him for
defamation if he dared to repeat his statement. The appellant in purported acceptance
of this challenge repeated his call for a reinvestigation of the causes behind
the crash by issuing a second statement and which statement was published in
the Daily Express on 8th April 2010 under the caption “BASIS TO REOPEN DUE TO
NEW INFO: YONG”. By this second statement, the appellant set out the reasons
behind his call for the reinvestigation of the crash.
According to the appellant, his main objective in calling
for there investigation of the crash was to remove all doubts about the causes
behind the crash. The appellant speculated that such
reinvestigation may either produce something big and
explosive or nothing at all. The appellant’s statement of 8th April 2010 was
published in Daily Express on 9th April 2010.
7. The respondent having threatened to commence legal
proceedings if the appellant repeated his statement, then, carried out his
threat by commencing legal proceedings against the appellant for libel claiming
the sum of RM 15 million in damages. The trial of the respondent’s claim commenced
on 16th November 2011 and was completed on 22nd November 2011. The Learned
Trial Judge ruled in favour of the respondent on 29th February 2012 and ordered
the appellant to pay the sum of RM 1 million as damages to the Plaintiff. The
appellant was also restrained by injunction from printing and publishing
further the statements attributed to him in the Daily Express.
JUDGMENT OF THE COURT
8. The appellant raised numerous defences in resisting
the libel claim including asserting that the press releases did not refer to
the respondent and that the contents of his two statements were not defamatory.
The Learned Trial Judge dismissed the first defence since the second statement:
“was made in response to the Plaintiff’s challenge to the
1st defendant. By issuing the second statement in response to the Plaintiff’s
challenge the 1st defendant could not have been referring to any person other
than the Plaintiff. I find it proved that the statements refer to the
Plaintiff”.
As regards the second defence, His Lordship in ruling the
two statements to be defamatory described the sting in the statements to be
beneath the surface. To put it in His Lordship’s own words:
“Read between the lines and in the context of the speech
by Tengku Razaleigh the 1st defendant’s call for re-investigation was in pith
and substance a call to investigate the Plaintiff for a possible involvement in
a criminal act. There is nothing wrong for the 1st defendant to call for a
re-investigation of the double six tragedy but when he insinuated that the
Plaintiff had blood on his hand without making any attempt to verify the truth
of the alleged new information revealed by Tengku Razaleigh, the 1st defendant
had crossed the line separating fair comment and malice aforethought”.
9. Whilst we have no reason to question the correctness
of His Lordship’s ruling that the statements were defamatory and that the
defence of justification did not avail the appellant, we allowed this appeal
because we are satisfied that the defence of qualified privilege was not
properly considered by the Learned Trial Judge and the law on the subject not
properly applied to the facts of this case. His Lordship after correctly
spelling out the scope of the defence of qualified privilege in law by citing
the following:
“On grounds of public policy the law affords protection
on certain occasions to a person acting in
good faith and without any improper motive who makes a
statement about another person which is in fact untrue and defamatory. Such
occasions are called occasions of qualified privilege. As a general rule, there
must be a common interest and corresponding duty or interest between the person
who makes the communication and the person who receives it.” (see the book
titled ‘In Words and Phrases Legally Defined Vol. 3’)
and quoting Lord Atkinson in Adam v Ward [1917] AC 309
“a privilege is, in reference to qualified privilege, an
occasion where the person who makes a
communication has an interest or duty, legal, social, or
moral, to make it to the person to whom it is
made, and the person to whom it is so made has a
corresponding interest or duty to receive it. This
reciprocity is essential”. (page 22 of the High Court judgment) then, in
our judgment, with respect, incorrectly, applied the law to the facts.
10. His Lordship ruled that the appellant had failed to
establish the defence of qualified privilege because:
“similarly in the present case the defendants had no duty
to communicate the information to the press and neither the press nor the world
at large had common interest to receive the information which in the way it was
presented by the 1st defendant was in truth and substance an insinuation of
criminal conduct on the part of the Plaintiff”.
(page 24 of the
High Court judgment)
11. In our opinion, the first ingredient of the defence
of qualified privilege was whether the occasion which caused the appellant to
issue the two statements and the subsequent publication of the same was a
privileged occasion. The answer to this question, in turn, depends on whether
the appellant had an interest or duty, legal, social or moral to issue the
statements to the public at large and whether the public in turn had a
corresponding interest in receiving this information. In our
judgment, the answer to this question is in the
affirmative for the following reasons:
a) neither the Federal Government nor the State
Government had released a formal report of the
causes of the crash. For this reason, the cause of the
crash was still not a matter that could be
considered settled in the minds of the citizens of the
State of Sabah. To the extent different theories for the crash were included in
the two books cited by His Lordship and the media, it is safe to assume that
the public would be interested to know of any other theory particularly since
the earlier theories surfaced during the period when the respondent was the
Chief Minister of Sabah and for this reason arguably favourable to him;
b) the respondent was apparently the only senior member
of the Berjaya cabinet to be not in the fatal flight. This fact coupled with
the fact that the respondent was to return to KK on the same day but in another
aircraft must necessarily fuel public interest in any revelation concerning the
circumstances leading to three of the passengers leaving
this aircraft for the aircraft which included
the respondent as a passenger. Against this background,
the revelations of Tengku Razaleigh
that the respondent was the person who was instrumental
in him being required to leave the fatal
aircraft is clearly of a nature which would interest the
leader of a political party in the state and for him to communicate these
revelations to the members of the public through the publication of his
statements in the media; and
c) it is not in dispute that the revelations of Tengku
Razaleigh were previously unknown to the public
and in all likelihood not available to the inquiry
committees which investigated the crash, at least, to
the knowledge of the appellant. The fact that the
respondent saw the need to promptly dispute
Tengku Razaleigh’s version by issuing a statement of his
own in the news media itself reflects
continued public interest in the crash and more
particularly the causes behind the crash.
12. In our judgment, the law on the defence of qualified
privilege has been refined to protect disclosures by the maker of a statement
so long as the maker is able to satisfy the Court that
it is in the interest of the public to receive frank and
uninhibited communication of particular information. Lord Nicholls of
Birkenhead expounded this defence in the following terms in
the leading judgment of the House of Lords in the case of
Reynolds v. Times Newspaper Ltd [1999] 4 AER 609:
“the requirement that both the maker of the statement and
the recipient must have an interest or
duty draws attention to the need to have regard to the
position of both parties when deciding whether an occasion is privileged. But
this should not be allowed to obscure the rationale of the underlying public
interest on which privilege is founded. The essence of this defence lies in the
law’s recognition of the need, in the public interest, for a particular
recipient to receive frank and uninhibited communication of particular
information from a particular source. That is the end the law is concerned to
attain. The protection afforded to the maker of the statement is the means by
which the law seeks to achieve that end. Thus the Court has to assess whether,
in the public interest, the publication should be protected in the absence of
malice.
In determining whether an occasion is regarded as
privileged the Court has regard to all the
circumstances: see, for example the explicit statement of
Lord Buckmaster LC in London
Association for Protection of Trade v. Greenlands Ltd
[1916] 2 AC 15 at 23, [1916-17] All ER Rep 452
at 456 (‘every circumstance associated with the origin
and publication of the defamatory matter’).
And circumstances must be viewed with today’s eyes. The
circumstances in which the public interest
requires a communication to be protected in the absence
of malice depend upon current social
conditions. The requirements at the close of the
twentieth century may not be the same as those of
earlier centuries or earlier decades of this century.
Privilege and publication to the world at large
Frequently a privileged occasion encompasses publication
to one person only or to a limited group
of people. Publication more widely, to persons who lack
the requisite interest in receiving the
information, is not privileged. But the common law has
recognised there are occasions when the public interest requires that
publication to the world at large should be privileged. In Cox v Feeney [1863]
4F & F 13 at 19, 176 ER 445 at 448 Cockburn CJ approved an earlier
statement by Lord Tenterden CJ that ‘a man has a right to publish, for the
purpose of giving the public information, that which it is proper for the
public to know. Whether the public interest so requires depends upon an
evaluation of the particular information in the
circumstances of its publication. Through the cases
runs the strain that, when determining whether the public
at large had a right to know the particular
information, the Court has regard to all the
circumstances. The Court is concerned to assess
whether the information was of sufficient value to the
public that, in the public interest, it should be
protected by privilege in the absence of malice”
(at page 616 and 617 of the judgment)
13. In our judgment, in the face the facts set out in
paragraph 11 above and applying the law expounded by Lord Nichols, the
appellant’s statements were issued on a privileged occasion
since the respondent had a duty or, at the least, an
interest as a politician and the leader of a political party to communicate to
the public at large through his first and second statements, the
contents of the Tengku Razaleigh’s revelations and to
call for the fresh inquiry into the causes of the crash. In our judgment, a
careful examination of the reason advanced by His Lordship in refuting proof of
the first ingredient of this defence was merely to conclude that:
“similarly in the present case the defendants had no duty
to communicate the information to the press and neither the press nor the world
at large had common interest to receive the information in the way it was
presented by the 1st defendant was in truth and substance an insinuation of
criminal
conduct on the part of the Plaintiff”.
With respect, the law is settled that the fact that the
statement is defamatory does not prevent the occasion from being a privileged
occasion. Whether the appellant abused the occasion by being actuated by malice
so as to deprive the occasion from being a privileged one, is an entirely
different
issue.
MALICE
14. We now propose to examine the facts to ascertain
whether the appellant was actuated by malice. The appellant’s explanation for
issuing the two statements was that:
“I am involved in politics. The said plane crash took the
lives of some very prominent political leaders in Sabah which is a very
significant event in Sabah. The public would and should be given the chance to
know on whether it is true that the Plaintiff was the one who at the very last
minute requested the said Tengku Razaleigh to board another plane and what was
the real cause of the air crash”.
(page 25 of the Judgment of the High Court)
15. The Learned Trial Judge dismissed this explanation on
two grounds. The first ground was that:
a) “Thus the basis of the 1st defendant’s call for a
re-investigation was that the public should be given the chance to know if it
was true that it was the Plaintiff who at the very last minute
requested Tengku Razaleigh to board the other plane.
However, the 1st defendant admitted during cross examination that he did not
verify with Tengku Razaleigh on the accuracy of his revelation. He should have,
because Tengku Razaleigh was available and it was easy for him to do so. It is
obvious that the 1st defendant did not care whether the revelation by Tengku
Razaleigh was true or not. He is therefore to be treated as if he knew the
revelation to be false. This indifference and couldn’t care less attitude is
evidence of malice on the part of the 1st defendant and by extension t he 2nd
defendant”.
(pages 25& 26 of the Judgment of the High Court)
The second ground was that:
b) “Was it a bona fide call for a fresh investigation or
was it a call to investigate thePlaintiff for a possible criminal act? There is
a subtle difference between the two motives. It is pertinent to note that
Tengku Razaleigh in his speech did not call for a re-investigation of the air
crash, let alone to suggest that the Plaintiff was accessory to a criminal act.
What the 1stdefendant did was to give his own slant to Tengku Razaleigh’s
revelation in order to cast aspersion on the Plaintiff. It is clear that
the 1st defendant had seized on the occasion to provoke
public speculation that the Plaintiff was up to no good when he asked Tengku
Razaleigh to board another plane at the last moment. This is unfair to the
Plaintiff because the 1st defendant himself knew that there are conflicting
historical accounts of the events prior to the crash”.
(pages 26 & 27 of the Judgment of the High Court)
16. In other words, the Learned Trial Judge’s finding of
malice was on the premise that to succeed in this defence the appellant had to
prove that Tengku Razaleigh’s version was true. The appellant’s failure to
verify the truth of the revelations with Tengku Razaleigh directly was
considered by His Lordship as affording evidence of malice. With respect, this
does not represent the law. A careful examination of the law on qualified
privilege set out in paragraph 9 of this judgment reveals that the
fact that the statement “is in fact untrue and
defamatory” does not preclude this defence from availing the appellant. Indeed,
it is trite law that qualified privilege as a life issue only arises
where the statement is defamatory and untrue (see
paragraph 32 of the judgment of Lord Bingham of Cornhill in Jameel v. Wall
Street Journal [2006] 4 AER 1279 at 1290). Accordingly, in our judgment, the
Learned Trial Judge fell into serious error in dissecting the speech of Tengku
Razaleigh to ascertain the truth of the contents of the same before concluding
that to the extent the appellant had not verified the truth of the contents of
Tengku Razaleigh’s speech, “he is therefore to be treated as if he knew the
revelation to be false” (see paragraph 773 at page 26 of His Lordship’s
Judgment).
17. We acknowledge that the defence of qualified
privilege requires a factual basis. However, the factual basis on the facts of
this case is not whether the revelations of Tengku Razaleigh are true but
whether it is true that he made the revelations. There is ample evidence of
this fact as there is the unchallenged evidence of the appellant that he
verified whether Tengku Razaleigh made the revelations with several persons who
were present at the forum. Secondly, there is also the evidence of DW 4 of his
attendance at this forum and of Tengku Razaleigh’s revelations during the
course of his speech at this forum. Indeed, the Learned Trial Judge appears to
have acknowledged this fact to be true as evidenced by the following passage in
His Lordship’s judgment:
“it is pertinent to note that Tengku Razaleigh in his
speech did not call for a re-investigation of the air
crash let alone to suggest that the Plaintiff was
accessory to a criminal act. What the 1st defendant
did was to give his own slant to Tengku Razaleigh’s
revelation in order to cast aspersion on the Plaintiff” (paragraph 791 to 794
of His Lordship’s judgment).
18. The Learned Trial Judge also fell into serious error
in the ruling that the appellant acted with malice because he called for a re-opening
of investigations when this did not form part of Tengku
Razaleigh’s speech. In other words, in His Lordship’s
view, since the appellant’s call for the re-opening of the original
investigations was defamatory and this call did not form part of Tengku
Razaleigh’s revelations, the appellant cannot rely on the defence of qualified
privilege. With respect, this, in our view, is not the proper application of
the law of qualified privilege. The law requires the judge to consider the appellant’s
two statements as a whole and if the article as a whole is justifiable, then,
the defence of qualified privilege avails the appellant even if the article is
defamatory and some facts untrue. Lord Bingham in Jameel v. Wall Street Journal
(supra) considered
whether the inclusion of a particular ingredient of a
composite story can result in the loss of the defence of qualified privilege on
the grounds “that the article could have been published without the inclusion
of the particular ingredient complained of”.
His Lordship’s view was that:
“some misunderstanding may perhaps have been engendered
by Lord Nicholl’s references [1999] 4
All ER 609 at 616,619 [2001] 2 AC 127 at 195, 197) to
‘the particular information’. It is of course true that the defence of
qualified privilege must be considered with reference to the particular publication
complained of as defamatory, and where a whole article or story is complained
of no difficulty arises. But difficulty can arise where the complaint relates
to one particular ingredient of a composite story, since it is then open to a
Plaintiff to contend, as in the present case, that the article could have been
published without inclusion of the particular ingredient complained of. This
may, in some instances, be a valid point. But consideration should be given to
the thrust of the article which the publisher has published. If the thrust of
the article is true, and the public interest condition is satisfied, the
inclusion of an inaccurate fact may not have the same appearance of
irresponsibility as it might if the whole thrust of the article is untrue”.
(paragraph 34 at page 1291 of the Judgment)
19. In other words, even if the appellant’s call for the
re-opening of the investigations was defamatory, and this call did not form part
of Tengku Razaleigh’s revelations, in our judgment, to rule against the
appellant on the ingredient of malice, His Lordship ought to have considered
the two statements as a whole to determine “whether the inclusion of the defamatory
statementwas justifiable” in the light of the Tengku Razaleigh’s revelations,
the making of which is true. Lord Hoffman in His Lordship’s judgment in the
same case of Jameel v. Wall Street Journal (supra) explained this principle to
be:
“if the article as a whole concerned a matter of public
interest, the next question is whether the
inclusion of the defamatory statement was justifiable.
The fact that the material was of public
interest does not allow the newspaper to drag in damaging
allegations which serve no public
purpose. They must be part of the story. And the more
serious the allegation, the more important it is that it should make a real
contribution to the public interest element in the article. But whereas the question
of whether the story as a whole was a matter of public interest must be decided
by the
judge without regard to what the editor’s view may have
been, the question of whether the defamatory statement should have been
included is often a matter of how the story should have been presented. And on
that question, allowance must be made for editorial judgment. If the article as
a whole is in the public interest, opinions may reasonable differ over which details
are need to convey the general message. The fact that the judge, with the advantage
of leisure and hindsight, might have made a different editorial decision should
not destroy the defence. That would make the
publication of articles which are, ex hypothesi, in the public
interest, too risky and would discourage
investigative reporting”. (paragraph 51 at page 1296 of
the Judgment)
20. In our judgment, the appellant’s call for a
re-opening of the investigations was clearly justifiable in the light of the
following facts:
a) there was no official report following the investigations
conducted by the Federal and State Governments;
b) there were contrasting versions of the circumstances
under which Tengku Razaleigh had
disembarked from the aircraft and alighted the next aircraft;
c) the respondent had in the past given his version of these
circumstances but the respondent’s version differed materially from that of
Tengku Razaleigh;
and
d) there is no evidence that the source for the versions consistent
with the respondents and to be found in the two books was Tengku Razaleigh.
21. Applying Justice Hoffman’s pronouncements to the
facts of this case, in our judgment, the appellant’s call made “a real contribution
to the public interest element in the article”. The
Learned Trial Judge in answering this question in the
negative was, in our judgment, unduly influenced by His Lordship’s earlier
finding that Tengku Razaleigh’s revelations were untrue
because they were in conflict with the version to be
found in the two books. In our judgment, the answer to this question ought to
have been determined by the application of three of the ten
points test propounded by Justice Nicholls in the
Reynolds v. Times Newspaper Ltd (supra). The first test related to the seriousness
of the allegation. The principle being the more serious the charge, the more
the public is misinformed and the individual harmed, if the allegation is not
true. Secondly, the
fifth test which related to the status of the
information. The principle being that the call for the re-opening of the investigations
is unjustified if the previous investigations had reached a conclusion which
commands respect. The third test being the tone of the article. The issue being
whether the article merely raised queries or a call for investigations as
opposed to asserting false allegations in the form of a statement of fact.
22. In our judgment, the appellant’s call for the
re-opening of the investigations does not run foul of any of the aforesaid
three tests. First, because the earlier investigations did not result in the
publication of a report as regards the causes for the crash. Secondly, the
versions in the two books vary from Tengku Razaleigh’s revelations and there is
no evidence that Tengku Razaleigh is the source for the versions of the crash
contained in the two books. For this reason, his revelations clearly amounted
to new information which warranted a fresh look at the crash. Hence, the
justification for the appellant’s call for fresh investigations to clear all
doubts for the cause of the
crash. Finally, the tone of the article cannot be said to
be provocative since the appellant merely called for a re-opening of the
investigations and acknowledged the fact that the fresh investigations based on
Tengku Razaleigh’s revelations may result in nothing at all. The fact of the
matter is that the appellant’s call for the re-opening of the investigations
ties in with Tengku Razaleigh’s revelations and the inconclusive nature of the
earlier investigations.
FINDING ON LIABILITY
23. In our judgment, the Learned Trial Judge’s
misunderstanding of the law relating to the defence of qualified privilege
caused His Lordship to erroneously rule the appellant to have been actuated by
malice in making the call for fresh investigations concerning the crash. In our
view, this error on the part of His Lordship is sufficiently serious to warrant
appellate intervention.
Accordingly, we allowed this appeal and set aside His Lordship’s
judgment in favour of the respondent on the conclusion of the hearing of the
appeal. In the light of our decision that the appellant succeeds in the defence
of qualified privilege, we do not propose to consider in this judgment the remaining
defences raised by the appellant.
DAMAGES
24. In our judgment, even if we are wrong on the issue of
liability, His Lordship’s award of RM1 million by way of damages is excessive
on the particular facts of this case. In our view, His
Lordship in awarding the sum of RM1 million was
influenced by His Lordship’s earlier ruling that the appellant had failed to verify
the truth of Tengku Razaleigh’s revelations when there is no such burden since
the defence relied upon was qualified privilege/fair comment and not
justification. That this was an important consideration on the mind of His
Lordship when determining the quantum of damages is evident by His Lordship’s
pronouncements in paragraph 1190 to 1195 of the
judgment:
“the seriousness of the libel and the recklessness in the
way it is published are relevant factors in
determining the quantum of damages. In the present case
the insinuation of criminal conduct was
a very serious libel perpetrated on the Plaintiff. Nothing
can be more humiliating than to be accused
of plotting to murder a serving Chief Minster in order to
usurp his position, compounded as it was by the reckless manner in which the
defamatory statements were published”.
25. Secondly, His Lordship in arriving at the quantum of
RM1 million also placed great emphasis on the award RM3 million made by Gopal
Sri Ram JCA in the case of MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun
& Other Appeals [1995] 2 MLJ 493. We have had occasion in the case of Harry
Issacs & 2 Others v. Berita Harian Sdn Bhd & 2 Others to caution judges
of the High Court against placing too much emphasis on this award since it was
an award made during a period of unrestrained excesses on the part of the
judiciary.
26. Thirdly, it was wrong of the Learned Trial Judge to
totally disregard the award of only RM 50,000 to the respondent by way of
damages by the High Court in the case of Datuk Mohd Shafee Hj Apdal &
Others [2009] 2 CLJ 682. We opine to this effect because the respondent was
similarly the Plaintiff in that case and the respondent’s claim was for
defamation, as in the case here. Finally, with respect, since the award of
damages for defamation is very much dependent on the character of the
claimant, the pronouncements of the High Court judge in
the case of Tan Chiaw Thong J in Tun Mustapha v. YDP Negeri Sabah & Ors
[1986] 2 MLJ 420 concerning the character of the
respondent is clearly a relevant factor in determining
the damages to be awarded to the respondent. For this reason, in our opinion,
the Learned Trial Judge erred in commenting as follows:
“I can only think of one reason why the defendants drew
the Court’s attention to all these cases, and
that is to provide additional oomph to their allegation that
the Plaintiff is a person of questionable
character. The reference to the Judge’s remarks in the
Tun Mustapha case is wholly unnecessary and
unfair to the Plaintiff as he was not even a witness in
that case and therefore not in a position to defend himself against those
remarks, whatever the context they were made.” (paragraph 1300 at page 43 of
the High Court judgment)
when rejecting the submission that His Lordship should
have regard to the observation of the judge in the case of Tan Chiaw Thong J in
Tun Mustapha v. YDP Negeri Sabah & Ors (supra) concerning the character of
the respondent. Accordingly, in all 28 the circumstances of this case, in our
judgment, even if the Learned Trial Judge was right on the issue of liability,
the damages awarded to the respondent ought to have been RM100,000 and not RM1
million.
Accordingly, we allowed this appeal and set aside the
orders of the High Court. We ordered the respondent to pay costs of RM150,000
as costs here and below and further ordered the respondent to return to the
appellant within two weeks of our judgment, all damages paid by the appellant
to the respondent pursuant to the order of the High Court. The deposit to be refunded
to the appellant.
Sgd.
ANANTHAM KASINATHER
JUDGE
COURT OF APPEAL MALAYSIA
PUTRAJAYA
DATE OF DECISION: 18th NOVEMBER 2013
DATED THIS: 3rd APRIL 2014
COUNSEL FOR THE APPELLANT:
Mr. Simon Shim Kong Yip
Messrs. Shim Pang & Co
Advocates & Solicitors
Suite 308-311, 3rd Floor
Wisma Sabah, Jalan Tun Razak
88000 Kota Kinabalu, Sabah
COUNSEL FOR THE RESPONDENT:
Mr. Yussof Maringking @ Trevor Maringking
Messrs. Maringking & Co
Advocates & Solicitors
Lot 119, 2nd Floor, Gaya Street,
Wisma Bumi, P.O Box 14174
88848 Kota Kinabalu
Sabah
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