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 3 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 center.
[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 17 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: “(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 remit 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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