IN THE COURT OF
APPEAL OF MALAYSIA
(APPELLATE
JURISDICTION)
CIVIL APPEAL
NO.Q-01-210-06/2014
BETWEEN
1. GOVERNMENT OF
THE STATE OF SARAWAK
2. THE STATE
FINANCIAL AUTHORITY .. APPELLANTS
AND
CHONG CHIENG JEN
.. RESPONDENT
[In the matter of
Kuching High Court Suit No.KCH-21-12/4-
2013
Between
1. Government of
the State of Sarawak
2. The State
Financial Authority .. Plaintiff
And
Chong Chieng Jen
.. Defendant]
CORAM
DAVID WONG DAK
WAH, JCA
ABDUL RAHMAN
SEBLI, JCA
ZAMANI A. RAHIM,
JCA
MAJORITY JUDGMENT
[1] We heard arguments on 9 December 2015 and reserved
judgment to a date to be fixed. Having deliberated on the matter, we have come
to a split decision. Our learned brother Justice David Wong Dak Wah is in
favour of dismissing the appeal whereas my learned brother Justice Zamani A.
Rahim and I are in favour of allowing the appeal. This then is our majority
decision.
[2] This appeal is against the decision of the High Court
at Kuching that decided that although the State Government or a statutory body
can sue or be sued, that right does not extend to the right to sue for
defamation. In the result the State Government and the State Financial
Authority’s action for defamation against the respondent was dismissed with
costs.
[3] The action did not proceed to full trial as it was
decided purely on points of law pursuant to an application made by the
respondent under Order 14A of the Rules of Court, 2012 (“the Rules”). A
determination under this rule binds the parties and no
evidence is required to prove the pleaded facts in issue.
[4] There were
four questions of law posed for the High Court’s determination and they were as
follows:
(1) Whether the
1st appellant (1st plaintiff in the court below), being the State Government of
Sarawak, and/or the 2nd appellant (2nd plaintiff in the court below), being a
government department and an organ of the government have the right to sue and
to maintain an action for damages for defamation against the respondent
(defendant in the court below).
(2) Whether the
actual or precise words complained of and alleged to be defamatory of the
appellants and/or the actual original words alleged to be defamatory of the
appellants in the alleged DAP leaflet (which were written in both Chinese and
English languages) must be specifically pleaded or set out in the Amended
Statement of Claim.
(3) Whether the
words complained of and set out in paragraph 6 of the Amended Statement of
Claim derived from the alleged Malaysiakini dated 18 February 2013, are capable
of bearing any defamatory meaning, and/or are capable of being understood to
refer to the 1st and 2nd appellants as a matter of law.
(4) In an action
for libel, whether it is permissible in law to group together several articles
from different publications in the Amended Statement of Claim, without spelling
out separately and distinctly what is the precise and pleaded defamatory
meaning(s) or imputation(s) that each article is capable of conveying against
the person defamed.
[5] We are only concerned with question (1) as the other
three questions were answered in favour of the appellants and no appeal or
cross-appeal was filed by the respondent against the decision.
The respondent is therefore deemed to accept the High
Court’s determination on those issues of law.
[6] The defamatory statement attributed to the
respondent, who is a member of Parliament for Bandar Kuching and the State
Assemblyman for Kota Sentosa pertains to the alleged mismanagement of the
State’s financial affairs, where he alleged that RM11 billion of public fund had
disappeared into a “black hole”,
whatever he meant by that hole but certainly uncomplimentary of the
State Government.
[7] The statement was published in two publications,
namely the Sin Chew Daily News on 3 January 2013 and in the DAP’s leaflet both
in Chinese and English and also in an online news portal
Malaysiakini on 18 February 2013. The DAP leaflet
contains a drawing of the figure RM11,000,000,000.00” being sucked into a
whirlpool with a black hole at the centre.
[8] Among the statements attributed to the respondent as
translated into English in Appendix D was the following:
“Chong said whenever people talked about the lack of
facilities, the government always give a lame excuse of not having enough fund
but right unknown to us there is this RM11 billion disappearing into the
blackhole. Chong said this proved a point that the state does not have money
it's because state money going somewhere else and Chong warned the state
government that they may be able to get away from the Opposition questioning but
they cannot get away from the people as a whole.”
[9] In answering question (1) in the negative, the
learned judge relied on the principle laid down by the House of Lords in
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; [1993] 1
All ER 1011, which Her Ladyship aptly described as the
‘Derbyshire principle’ where it was held, affirming the decision of the Court
of Appeal, as follows:
(i) Under common law a local authority does not have the
right to maintain an action for damages for defamation as it would be contrary
to the public interest for the organs of government, whether central or local,
to have that right.
(ii) It was of the highest public importance that a
governmental body should be open to uninhibited public criticism, and a right
to sue for defamation would place an undesirable fetter on freedom of speech.
[10] The learned judge noted that the Derbyshire
principle had been applied in Malaysia in two High Court cases, namely Kerajaan
Negeri Terengganu & Ors v Dr Syed Azman Syed Ahmad Nawawi
& Ors [2013] 1 CLJ 107 and Kerajaan Negeri Terengganu
& Ors v Dr Syed Azman Syed Ahmad Nawawi & Ors (No.2) [2013] 1 CLJ 124.
These two cases went up on appeal to this court where the outcome was that the
decision in the first case was affirmed whereas the decision in the second was
reversed.
[11] Unfortunately we do not have the benefit of the
grounds of judgment of either case to enable us to know the actual reasons for the
decisions. It is interesting to note though that the two cases involved the same parties and were decided by the same
High Court judge.
[12] It is obvious that the decision of the House of
Lords in Derbyshire County Council was based on the common law of England,
which emphasized on public interest and the freedom of expression to criticize
the government and its organs, in that case the local government.
[13] The precise scope of the rule is however unclear:
see Butterworths Common Law Series by Duncan and Neill on Defamation (4th
Edition) at para 10.07. What is clear is that the decision was made against the
backdrop of a developed democracy whose social fabric and geopolitics are very
different from ours.
[14] Derbyshire County Council was followed in two other
House of Lords decisions, namely Reynolds v Times Newspapers Ltd & Ors
[2001] 2 AC 127 and Jameel & Anor v Wall Street Journal,
Europe SPRL [2006] 4 All ER 1279. Before the decision in
that case, the common law of England allowed a local government to sue for defamation
as demonstrated by the judgment of Browne J in Bagnor Regis UDC v Campion
[1972] 2 QB 94 where he ruled:
“Just as a trading company has a trading reputation which
it is entitled to protect by bringing an action for defamation, so in my view
the plaintiffs as a local government has a “governing reputation” which they
are equally entitled to protect in the same way – of course, bearing in mind
the vital distinction between defamation of the corporation and defamation of
its individual officers
or members.”
[15] The Derbyshire County Council case, decided in 1993
had thus changed the common law of England in this area of the law.
Mr. Chong Siew Chiang for the respondent submitted that
the Derbyshire principle can be applied to the present case as the common law
of England applies to defamation law in Malaysia by reason of section 3 of the
Civil Law Act, 1956 (“the Civil Law Act”) but subject to modification by the defamation Act, 1957 (Revised 1983) (“the
Defamation Act”).
[16] For this proposition he cited the following
authorities: Abdul Rahman Talib v Seenivasagam & Anor [1966] 2 MLJ 66, a
Federal Court decision and Chew Peng Cheng v Anthony Teo Tiao Gin
[2008] 1 MLJ 595, a decision of the Sibu High Court.
[17] It was strenuously argued that to allow the State
Government of Sarawak and the State Financial Authority to maintain an action for
damages for defamation against the respondent simply for criticizing them for
mismanaging public fund, which runs into billions of ringgit will go against
Article 10(1)(a) of the Federal Constitution which guarantees freedom of speech
and expression.
[18] It was further submitted that to allow the
appellants the right to sue the respondent for defamation in all the
circumstances of the case is altogether unprecedented and there is no principle
of law on which it can be founded.
[19] Datuk JC Fong for the appellants on the other hand
argued that the Derbyshire principle, based as it is on the common law of England
has no application in Malaysia, for the following two reasons:
(a) Proceedings by or against the government are not
bound by common law rules but are regulated by statute, i.e. section 3 of the
Government Proceedings Act, 1956 (”the Government Proceedings Act”).
(b) Section 3 of the Government Proceedings Act does not exclude
proceedings in libel or defamation by or against the government.
[20] Section 3 of
the Government Proceedings Act reads as follows:
“3. Subject to
this Act and of any written law where the Government has a claim against any
person which would, if such claim had arisen between subject and subject,
afford ground for civil proceedings, the claim may be enforced by proceedings
taken by or on behalf of the Government for that purpose in accordance with
this Act.”
[21] We note that the learned judge in her grounds of
judgment did not direct her mind to this provision, which is crucial for the determination
of question (1). Her focus was on section
5 of the
Defamation Act,
which provides as follows:
“5. In an action
for slander in respect of words calculated to disparage the plaintiff in any
office, profession, calling, trade or business held or carried on by him at the
time of publication, it shall not be necessary to allege or prove special damage
whether or not the words are spoken of the plaintiff in the way of his office,
profession, calling, trade or business.”
[22] Her Ladyship interpreted the word “plaintiff” in the
above provision as to mean, by virtue of section 3(4) of the Interpretation Ordinance
of Sarawak, the male and female gender. It follows,
according to the learned judge, that only a human being
can sue for defamation and not a government.
[23] There can be no argument that the Government
Proceedings Act is a special statute specially promulgated by Parliament to
give the Federal and State Governments the right to commence civil
proceedings against any person. Section 3 gives the
government the same right as a private individual to enforce a claim against another
private individual by way of civil action. It is a statutory right and not a
common law right.
[24] The term “civil proceedings” used in section 3 is
defined by section 2(2) to mean “any proceeding whatsoever of a civil nature before
a court” and the operative words in section 3 are “which would, if such claim
had arisen between subject and subject, afford ground for civil proceedings”,
meaning to say if a claim affords ground for civil proceedings between private
individuals, it will afford ground for civil proceedings between the government
and private individuals.
[25] Thus, if a claim affords ground for an action in
defamation (which is a form of civil action) between private individuals, it
will afford ground for an action in defamation between the government and
private individuals. That in our view is the proper construction to be given to
section 3 of the Government Proceedings Act and will not in any way result in
an absurdity or be in breach of any canon of statutory interpretation.
[26] The rule is that if the law does not prohibit, it
allows. There is nothing in the Government Proceedings Act, in particular
section 3 that can be construed as to prohibit the government from
proceeding with an action in defamation. Parliament would
have said so expressly if it had so intended.
[27] What is expressly prohibited by section 3 read with
section 2(2) of the Government Proceedings Act is proceedings under Chapter
VIII of the Specific Relief Act 1950, or such proceedings as would in England
be brought on the Crown side of the Queen’s Bench Division. Defamation does not
fall under either of these two categories of proceedings.
[28] If a claim for defamation were to be singled out as
a cause of action that is prohibited by section 3, then what is there to stop
the argument that some other causes of civil action by the government
are also prohibited?
[29] For example, there is nothing in the Government
Proceedings Act that expressly gives the government the right to sue for breach
of contract, in as much as it does not expressly give the government the right
to sue for defamation. What it does provide is the reverse, i.e. that an action
shall lie against the government for breach of contract, negligence or trespass
in the execution of works of construction or maintenance undertaken by the
government or any public officer in the exercise of the public duties of the
government: see section 7(1) and (3). Does this mean that the government cannot
sue for breach of contract, but only the subject can sue the government?
Certainly not.
[30] Nor does the legislative scheme of the provision
warrant such interpretation. On the contrary the provision is clearly inclusive
as it speaks of “any proceeding whatsoever of a civil nature”. We do not think
there is any alternative to the argument that a claim for defamation is a
proceeding “whatsoever of a civil nature” within the meaning of section 2(2) of
the Government Proceedings Act.
[31] The word “whatsoever” is a word of wide import and
is a derivative of the word “whatever”, which the Concise Oxford English Dictionary
(11th Edition-Revised) defines as follows:
“used to emphasise a lack of restriction in referring to
any thing, no matter what.”
[32] In the
context of section 3 of the Government Proceedings Act, it means there is no
restriction on the part of the government to sue for defamation. Having regard
to the clear and unambiguous language of
section 3, the real issue in our view is not whether the government has a right
to sue for defamation but whether the government has a reputation to protect in
order to give it a cause of action in defamation.
[33] Mr. Chong Siew Chiang submitted that it has none. We
respectfully disagree as reputation is not the exclusive right of a natural
person or a body corporate to protect. While it is true that the government
cannot be injured in its feelings, its reputation can be injured by a libel.
[34] Thus, anything that is said about the government
that has a tendency to lower its reputation in the estimation of right thinking
members of the public, or to expose it to hatred, contempt or ridicule, will
give rise to a cause of action in defamation. It is the same test that is
applicable in a claim for defamation between private individuals.
[35] We are not suggesting of course that the government
cannot be criticized. It can and that right to criticize must be protected as
it is a symbol of a functioning democracy. What cannot be done
however is to defame the government. So when Mr. Chong
Siew Chiang referred to the impugned statement as a “criticism”, we understand
him to mean it in the defamatory sense.
[36] In any event, the issue of whether the impugned
statement is defamatory or otherwise must be put to rest as the learned judge had
determined the statement to be defamatory of the appellants
and the respondent accepted it by not filing any appeal
against the determination.
[37] The learned judge relied on the Court of Appeal
stage of the Derbyshire County Council case reported in [1992] 3 All ER 65 to support
her reasoning that the government’s reputation is
adequately protected by an action for malicious falsehood
or by a prosecution for criminal libel.
[38] With due respect to the learned judge, that does not
answer the question whether the statutory right given to the government by section
3 of the Government Proceedings Act to sue for defamation is thereby abrogated
by such protection. In any case, if the government can institute criminal
proceedings for libel to protect its reputation, we see no reason why it cannot
institute civil
proceedings for the same purpose.
[39] As a matter of fact, criminal prosecution for libel
is a far more serious impediment to free speech and expression than a civil
action is. A person can be incarcerated for committing a criminal offence whereas
the worst that a person can expect if found liable for a civil wrong is to pay
damages and costs. It will hurt his pocket but he will not lose his freedom,
unless of course he defies the court order and be cited for contempt.
[40] Whether a statement is in law and in fact defamatory
of the government and whether the defendant in such action can avail himself of
the defence of fair comment, justification or qualified
privilege under the Defamation Act are matters to be
decided at the trial, or alternatively by way of determination under Order 14A
of the Rules as was done in this case. They are unrelated to the issue of whether
the government has a right to sue for defamation.
[41] The
Defamation Act, which Mr. Chong Siew Chiang said is to be read together with
section 3 of the Civil Law Act but subject to modification, does not deal with
the right of the government to
commence civil
proceedings against any person. The statute that deals with that right is the
Government Proceedings Act.
[42] It is cliché to say that the right to freedom of
speech and expression guaranteed by Article 10(1)(a) of the Federal Constitution
is not an absolute and unfettered right. It has to be so for if it were
otherwise, all laws that restrict the freedom of speech and expression will be
liable to be struck down as being unconstitutional and no such law can be
enacted by Parliament.
[43] We are not aware of any such law that has been
struck down by the court on such ground. On the contrary all such laws are perfectly
valid by reason of Article 10(2)(a) of the Federal Constitution. This
Constitutional restriction dispels any notion that the freedom of speech and
expression guaranteed by Article 10(1)(a) is absolute and unfettered.
[44] To allow
absolute and unfettered freedom to defame the government (as opposed to fair
comment or criticism) all in the name of freedom of speech and expression is to
allow lawlessness to prevail. We must not be blind to the reality that behind
every government is a political party or a coalition of political parties, with
power politics being the raison d’etre for their existence.
[45] A defamatory
attack on the government, especially by members of a rival political party will
be taken as an attack on the political party or parties behind the government.
This applies across the board to any political entity that forms the government
of the day and to those who defame it.
[46] This is not
to bring politics into the equation but merely to illustrate the point that
making unrestrained defamatory statements against the government using freedom
of speech and expression as the mantra is a dangerous political maneuvering
that can trigger a chain of negative and even violent political reactions that
can spiral out of control. We must never underestimate the destructive power of
words.
[47] When that happens it will not surprise anyone if
those responsible for starting the fire will be the first to disclaim responsibility.
If power corrupts and absolute power corrupts absolutely, the thirst for power
corrupts and corrupts absolutely in its own way.
[48] Being an
elected representative of the people does not give the respondent the right to
defame the government with impunity. A line has to be drawn between criticism
that is made in good faith and for the greater good of the people and a
statement that is unfounded and made recklessly with the sole intention of
gaining political mileage by inciting hatred towards the government. Outside of
Parliament or State Assembly in session, no member of Parliament or State
Assemblyman is immune from defamation action.
[49] The government has no better right to protect its
reputation than the respondent is to protect his reputation as a Member of Parliament,
State Assemblyman and as a private citizen from
defamatory attack by the government, who too can be sued
for defamation: see Carter-Ruck on Libel and Privacy (6th Edition) at para
8.13.
[50] We must point out however that the learned authors
of this publication also subscribe to the common law principle that the government
has no locus standi or right to maintain an action for
defamation.
[51] To the
question “Is it in the public interest to allow the government to sue for
defamation?”, our answer is simply this. If the law allows it, then it cannot
be against the public interest.
Parliament, as is
often said, does not legislate in vain. It must have had the public interest in
mind when enacting section 3 of the Government Proceedings Act by not excluding
defamation from its ambit.
[52] The cases of Abdul Rahman Talib and Chew Peng Cheng cited
by the respondent are not relevant as both are decisions on the defence of fair
comment and justification under the Defamation Ordinance, 1957 and the
Defamation Act respectively. They are not authorities for the proposition that
the government has no right of action in defamation.
[53] It was also Mr. Chong Siew Chiang’s submission,
which found favour with the learned judge, that since the tort of defamation is
an action in personam and against the private reputation of a natural or juristic
person, the proper person to sue as plaintiff is the natural person so defamed.
[54] According to Mr. Chong Siew Chiang, if that person
is the Chief Minister of Sarawak, then it is the Chief Minister of Sarawak who
must sue in his own name and in his personal capacity and not
in the name of the State Government. The judgments in Lim
Guan Eng v Utusan Melayu (M) Sdn Bhd [2012] 2 CLJ 619; [2012] 2 MLJ 394; Lee
Kuan Yew v Jeyaretnam Joshua Benjamin [1990] 1 LNS
78; Dr. Rais Yatim v Amizudin Ahmat [2011] 1 LNS 1441
were cited in support.
[55] With due respect, we do not find any merit in the
argument. Under section 22(1) of the Government Proceedings Act, civil proceedings
by the government of a State must be instituted by the State Government. Thus,
if the object of the defamatory statement is the State Government, any action
that is taken against the defamer must be in the name of the State Government
and not in
the name of any individual member of the administration.
[56] An example would be where the State Government is
wrongly accused of misusing State fund. Here, it is the integrity of the State Government
that is being called into question and not the integrity of any individual
member of the administration. It is therefore the State Government and not an
individual member of the administration that may institute the defamation
action.
[57] The statutory right of the State Government to sue
for defamation is independent of the right of any member of the administration,
including the Chief Minister to sue in his own name and in his personal
capacity.
[58] If any of them were to sue in that capacity, it will
be an action between private citizens and not between government and citizen. Such
action does not involve the affairs of the State. It is purely a
private and personal matter. An example would be where a
member of the State administration is wrongly accused of being a thief, and it
does not matter if he is accused of stealing government money or money
belonging to a private citizen. It is still a private and personal matter
between the accuser and the accused.
[59] The three cases cited by Mr. Chong Siew Chiang are
of no assistance to the respondent as again they are not authorities on the
issue of whether the government has a right of action in defamation. The
members of the administration in those cases chose to sue in their own names
and in their personal capacities and it was their right to do so as the
defamatory statements were private and personal in nature.
[60] This brings us to the question of the reception of
the common law of England in Sarawak, which is regulated by section 3(1)(c) of the
Civil Law Act which reads:
“3. (1) Save so far as other provision has been made or
may hereafter be made by any written law in force in Malaysia, the Court shall
–
(a) ……….
(b) ……….
(c) in Sarawak, apply the common law of England and the
rules of equity, together with the statutes of general application, as
administered or in force in England on 12 December 1949, subject however to subsection
(3)(ii) –
Provided always
that the said common law, rules of equity and statutes of general application
shall be applied so far only as the circumstances of the States of Malaysia and
their respective inhabitants permit and subject to such qualifications as local
circumstances render necessary.”
[61] Since the Derbyshire principle which the learned
judge used as the basis for her decision
is based on the common law of England, it is important to determine the extent
to which the common
law of England can be applied in Malaysia.
[62] The authority
on point is the then Supreme Court case of Chung Khiaw Bank Ltd v Hotel Rasa
Sayang Sdn Bhd [1990] 1 CLJ (Rep) 57; [1990] 1 MLJ 356 where Hashim Yeop Sani
CJ (Malaya) delivering the
judgment of the Court explained the position as follows at page 66:
“Section 3 of the
Civil Law Act, 1956 directs the Courts to apply the common law of England only
in so far as the circumstances permit and save where no provision has been made
by statute law. The development of the common law after 7 April 1956 (for the
States of Malaya) is entirely in the hands of the Courts of this country. We cannot
just accept the development of the common law in England. See also one of the
majority judgments in Government of Malaysia v Lim Kit Siang in [1998] 2 MLJ 12
at p. 40.” (emphasis added)
[63] His Lordship then went on to deal with the
applicability of the common law of England to illegal contracts under section
24 of the Contracts Act 1950. This is how the learned CJ (Malaya) dealt with
the issue:
“The provision of s. 24 of our Contracts Act is a
statutory direction. It may well have originated from some old common law
principle but that principle has now been converted into a statutory provision.
We are therefore unable to accept the submission of Mr.
Puthucheary that we follow what he termed as the “trend” shown by the Courts in
common law countries to be slow in
striking down illegal contracts because that contention is untenable in the
face of statute law of this country.”
[64] The
position of the law as explained in Chung Khiaw Bank is clear, that where a
provision has been made by statute, the door to the reception of the common law
of England after the dates
specified in
paragraphs (a), (b) and (c) of subsection 3(1) of the Civil Law Act is closed.
[65] After
these dates, the development of the common law in Malaysia is “entirely in the
hands of the Courts of this country” and “We cannot just accept the development
of the common law in
England”. For
the State of Sarawak, the cut off date is 12 December 1949.
[66] Mr. Chong Siew Chiang relied heavily on the proviso
to section 3(1) of the Civil Law Act to argue that the common law of England
applies to defamation law in Malaysia. With due respect, the argument is flawed
as it looks at the proviso in isolation without reading it together with the
main body of subsection (1), which sets out cut off dates for the application
of “the said common law” of
England in Peninsular Malaysia, Sabah and Sarawak.
[67] There was no argument as to what the common law of Sarawak
is in relation to an action for defamation by the State Government or by
statutory authorities post 12 December 1949. We shall therefore leave the
question open for determination at some other time on some other occasion.
[68] But whatever may be the common law of Sarawak in
this area of the law, we cannot just accept the common law of England as it stood
in 1993. We will be doing just that if we just accept the
Derbyshire principle as the applicable law and close both
eyes to section 3 of the Government Proceedings Act.
[69] It may be worth noting that the Government
Proceedings Act follows the UK Crown Proceedings Act, 1947 (“the Crown Proceedings Act”) which altered the general
rule at common law that no proceeding, civil or criminal, was maintainable
against the monarch in person, for it was said that the courts being the King’s
own, could have no jurisdiction over him. It was based on the maxim “the King
can do no wrong”.
[70] Under the Crown Proceedings Act, enforcement of
orders by or against the crown in civil proceedings are now governed by the same
rules and in the same circumstances as between subjects: see Halsbury’s Laws of
England Vol.12 (1) (5th Edition) para 1239.
[71] There is however, and this is a very important
distinction, no provision in the Crown Proceedings Act which is in pari materia
with section 3 of the Government Proceedings Act. In fact if we look at the
shoulder note and side note to the corresponding provisions in the two Acts of
Parliament, the difference in emphasis is obvious.
[72] Whereas the shoulder note to Part II of our
Government Proceedings Act under the heading “SUBSTANTIVE LAW” reads:
“Right of the Government to sue”, the side note to Part I
of the UK Crown Proceedings Act under
the same heading reads: “Right to sue the Crown.”
[73] So the emphasis is at opposite ends of the pole. In
view of such fundamental difference in emphasis, which we think cannot be trivialized
or ignored, it will be wrong to apply the common law of England as expounded in
the Derbyshire County Council case randomly without regard to the applicable
statutory provision, in this case section 3 of the Government Proceedings Act.
The Derbyshire principle must be considered from this perspective.
[74] Within our shores there are at least two decisions
of this court that expressed the view that the common law of England does not apply
to bar defamation suits by public authorities. The first is
Lembaga Kemajuan Tanah Persekutuan & Anor v Dr Tan
Kee Kwong (Civil Appeal No.W-01 (NCVC)-551-10/2011) which decided (by majority)
as follows:
“It was submitted on behalf of the respondent that the
principle in Derbyshire County Council ought to be applied as it has been
applied in several commonwealth jurisdictions. With respect, we do not find any
justification for applying the Derbyshire County Council principle here. In
particular, section
15(1) of the Act gives the appellant the right to sue and
be sued. It would be preposterous for the court to take away a statutory right
by the application of English common law principles. Even section 3(1)(a) of
the Civil Law Act which allows the application of English common law does not
contemplate its application beyond what is administered on 7th day of April,
1956.”
[75] The second
case is Tony Pua Kiam Wee v Syarikat Bekalan Air Selangor Sdn Bhd [2013] 1 LNS
1433 where the following observations were made:
“The local authorities recognize the right of private
companies involved in the provision of public services to sue in defamation.
The reasons advanced by English authorities such as Derbyshire County Council v
Times Newspapers Ltd & Ors [1993] AC 534 in denying this right to a company
performing a similar role to the respondent in the United Kingdom to institute
proceedings in defamation, has to date not been accepted by our courts as the
law of this country. As we do not consider the impugned words to be defamatory,
we do not propose in this judgment to interfere with the ruling of the Learned
Trial Judge that the respondent enjoyed the necessary locus to institute a
claim for defamation against the appellant.”
[76] It is rather unfortunate that these two cases were
not brought to the attention of the learned judge for her consideration. If
they had, her answer to question (1) might well have been different. The facts
may be distinguishable from the facts of the present case but the important point
to note is that in both cases this court refused to apply the Derbyshire
principle.
[77] Having given anxious consideration to the competing arguments,
we are inclined to agree with Datuk JC Fong that the statutory right given to
the government by section 3 of the Government Proceedings Act to sue for
defamation cannot be taken away by the application of the common law principle
propounded by the House of Lords in the Derbyshire County Council case or, for that
matter, any other common law positions in other common law jurisdictions.
[78] Further and in any event, section 3(1) of the Civil
Law Act expressly excludes the application of the common law of England where
“other provision has been made or may hereafter be made
by any written law in force in Malaysia”. Section 3 of the Government Proceedings
Act is one such “other provision” which, as we have said, does not prohibit or
exclude the government from suing for defamation. The common law of England
cannot override this statutory provision.
[79] Accordingly, we hold that the common law of England
as applicable to defamation action by the government or governmental body has no application in Sarawak by reason
of section 3(1)(c) of
the Civil Law Act and by reason of section 3 of the
Government Proceedings Act, which confers on the State Government the same right
as a private citizen to sue another private citizen for defamation by way of
civil action.
[80] For all the reasons aforesaid, we allow the appeal
with no order as to costs. The decision of the High Court dismissing the appellants’
claim is set aside. The deposit, if paid, is to be refunded
to the appellants.
[81] There remains the question of the consequential
effect of our decision, given that question (3) for the High Court’s
determination was answered in favour of the appellants and no appeal or cross-appeal
was filed by the respondent against the determination. For ease of reference,
we reproduce below question (3) in its original form:
25
“(3) Whether the words complained of and set out in paragraph
6 of the Amended statement of claim derived from the alleged Malaysiakini dated
18th February, 2013, are capable of bearing any defamatory meaning, and/or are capable
of being understood to refer to the 1st and 2nd plaintiffs as a matter of law.”
[82] By not appealing or cross-appealing against the High
Court decision on this question of law, the respondent must be taken to accept
as the truth the court’s finding that the impugned statement
attributed to him was defamatory of the appellants.
[83] Now that we
have answered question (1) in favour of the appellants, the question is whether
we should enter judgment against the respondent, or to r emit the case back to
the High Court
for the learned
judge to deal with the remaining issues, in particular the pleaded defence of
justification, fair comment and qualified privilege, none of which were posed,
let alone determined in the Order 14A application.
[84] Having given the matter serious consideration, we do
not think it will be proper for us to
remit the case back to the High Court for trial as that will defeat the whole
purpose behind the Order 14A
procedure, which is to save the expense and delay which
would otherwise arise if the action were to proceed to full trial: see Malaysian
Court Practice 2007 Desk Edition at page 140.
[85] When the learned judge decided to hear the case in accordance
with the procedure prescribed by Order 14A, she must have been satisfied that
the four questions posed by the respondent were suitable for determination
without the full trial of the action and that such determination would finally
determine the entire cause of the matter. That would also have been what the
respondent had in mind when making the application under Order 14A.
[86] Thus, when the learned judge dismissed the
appellants’ claim in its entirety after determining question (1) in favour of
the respondent and questions (2), (3) and (4) in favour of the appellants,
Her Ladyship had in fact finally determined the entire
cause of the matter pursuant to Order 14A rule (2), exactly as intended by the respondent.
Had question (1) been answered in favour of the
appellants along with question (2), (3) and (4), final
judgment would have been entered against the respondent.
[87] To now allow the case to proceed to trial despite
having been finally disposed of under Order 14A is to open the floodgates for such
applications to be made piecemeal and by installment.
Technically, it is still open to the respondent to make
another such application if we were to remit the case back to the High Court
for trial.
[88] Considering that a decision under Order 14A is a
final decision in that it finally determines the rights of the parties and
therefore appealable to this court and potentially to the Federal Court with
leave, any further appeal upon further determination
under Order 14A will further delay the final disposal of the case. We do not
think we should set a dangerous precedent by allowing trial after a
determination under Order 14A.
[89] A litigant who moves the court under Order 14A must
not pose the questions out of curiosity just to see what the court’s views will
be on the points of law that he is posing for determination. That will be an
abuse of process. Once the questions are cast in stone and determined by the court,
he is bound by the decision in the same way that the opposing party is bound by
the decision, either for the entire claim to be dismissed or for final judgment
to be entered. The matter must end there.
[90] If a litigant omits to include any question of law
that is determinative of the rights of the parties and fails in his
application, he cannot turn around and say that the case must nevertheless proceed
to trial as the court has yet to decide on the remaining issues of law that he
omitted to include in the Order 14A application.
He cannot have the best of both worlds and to approbate
and reprobate.
[91] In our view,
since all four questions have now been answered in favour of the appellants,
the claim against the respondent has been established without any further need
to hear evidence from the respondent nor for further arguments to be canvassed
before the learned High Court judge.
[92] In the
circumstances we enter judgment against the respondent in terms of prayers (1)
and (2) of the Amended Statement of Claim. Damages is to be assessed by the
Deputy Registrar of the High Court.
ABDUL RAHMAN SEBLI
Judge, Court of Appeal Malaysia
Dated: 7 April 2016
For the Appellants: Datuk JC Fong (Talat Mahmood bin
Abdul
Rashid, Mohd. Adzrul bin Adzlan, and Azreen Fasya binti
Mohamad Abu Bakar
with him) of the State Attorney General’s Chambers.
For the Respondent: Mr. Chong Siew Chiang (Carol Lua with
him)
of Messrs Chong Brothers Advocates
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