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IN THE HIGH COURT OF MALAYA

AT GEORGETOWN PENANG

[CIVIL SUIT NO. 23NCVC-7-09/2015]

BETWEEN

1. LIM GUAN ENG

2. PROFESSOR DR RAMASAMY PALANISAMY
… PLAINTIFFS

AND

GANESAN NARAYANAN … DEFENDANT

GROUNDS OF JUDGMENT

Introduction

[1] This is yet another defamation case involving Penang politicians

that came before me for trial after Datuk Haji Shabudin Bin
Yahaya & 3 Ors v. Dr Afif Bin Bahardin [2016] 1 LNS 291 and
Prem Anand Loganathan v. Dhinagaran Jayabalan [2016] 1
LNS 1562.

[2] The Plaintiffs here are the Chief Minister and the Deputy Chief
Minister (II) of the State of Penang respectively.

[3] The Defendant is a social activist.

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[4] The Plaintiffs’ action is premised on slander uttered by the

Defendant during a press conference held on 4 December 2013
(“Press Conference”) called and led by the Defendant.

[5] In their statement of claim in this suit, the Plaintiffs in gist

claimed for damages (general, aggravated and exemplary) as
well as for an order that the Defendant retracts and also
publishes an apology for the slander in the News Straits Times
and/or www.nst.com.my besides interest and costs.

Preliminary

[6] The trial of this suit took 6 days on 8 March, 10 April, 14, 15
and 13 June and 20 July 2017.

[7] The trial documents comprised of bundles A to H including the

documentary evidence in bundles B (save for pages 7 to 22), C,
D, E (save for pages 24 to 26) and F which were consented to by
the parties to carry status B, viz. the original document and the
maker thereof are dispensed. In the course of the trial, exhibits
P1 (bundle B page 7), P2 (bundle B pages 8 to 22), D3, D4
(bundle E pages 24 and 25) and D5 were admitted in evidence.

The Defendant strenuously objected to the admissibility of

bundle B page 7 being the CD of the audio recording of the
aforesaid Press Conference as well as bundle B pages 8 to 22
being the written transcription of the contents of the audio
recording. After hearing counsel, I ruled that both documents be
admitted in evidence and marked as exhibits P1 and P2
respectively. In this regard, the person who recorded the audio
recording to wit, Predeep Nambiar was present in court and
plainly testified that he recorded the Press Conference using his
Samsung Galaxy II handphone. He subsequently transferred the
recording to his laptop computer (belonging to his previous

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employer, The News Straits Times Press (Malaysia) Bhd and in

good working condition) and emptied the recording in his
handphone. Thereafter he burned and downloaded the recording
in his laptop computer into CDs. He confirmed that the CD
accurately recorded the Press Conference after playing and
listening to it. From the CD, he caused the production of the
written transcription of the recording from the CD. According to
him, the laptop was subsequently returned to his employer after
he left the employment of The News Straits Times Press
(Malaysia) Bhd and he no longer has it in his possession.

It is plain that an audio recording is a document as defined in s.

2 of the Evidence Act 1950. In the circumstances and since the
maker of the document was present in court, I admitted exhibit
P1 the audio CD (a secondary document) notwithstanding the
laptop that contained the hard disk (the primary document) was
not produced pursuant to s. 65(1)(c) and/or s. 73A(2)(b) read
together with s. 90A particularly s. 90A(6) of the Evidence Act
following Hanafi bin Mat Hassan v. Public Prosecutor [2006] 4
MLJ 134 to avoid undue delay of the conclusion of this suit. I
am mindful that Predeep Nambiar testified the audio CD that
was adduced at trial may not have been one of the CDs produced
by him but he confirmed that there was no tempering involved
after listening to it. I find that the CD is probably a copy from
the CD he produced that was given to the Plaintiff’s solicitors
by the solicitors of The New Straits Times Press (Malaysia) Bhd
pursuant to Penang High Court Civil Suit no. 23NCVC-15-
12/2013 (“Libel Suit”). I further admitted exhibit P2, the written
transcription of the audio recording pursuant to s. 73A(2) of the
Evidence Act on my own volition also to avoid undue delay of
the conclusion of this suit. I am satisfied that both the CD and
the written transcript are genuine reproduction of what

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transpired at the Press Conference. In this respect, I am also

mindful that there were two transcripts produced during the
Libel Suit and adduced at the trial of this suit which slightly
differed. I do not find the differences to be of any significant
consequence for purposes of this suit. The primary evidence is
still the audio CD and I placed greatest weight on what I
listened from it.

[8] The witnessed who testified are as follows:

(i.) YAB Lim Guan Eng (“PW1”), the Chief Minister of

Penang, Member of Parliament for Bagan constituency,
State Assemblyman for Air Putih constituency and
Secretary General of the Democratic Action Party and the
First Plaintiff himself;

(ii.) YB Dr. Ramasamy a/l Palanisamy (“PW2”), the Deputy

Chief Minister (II) of Penang, State Assemblyman for
Perai constituency and Deputy Secretary General of the
Democratic Action Party and the Second Plaintiff himself;

(iii.) Predeep Nambiar (“PW3”), a former journalist of The New

Straits Times Press;

(iv.) Theresa Susan Loone Sui Yin (“PW4”), an assistant news

editor of Malaysiakini.com;

(v.) Kalayselvam a/l Kandasamy (“DW1”), a control engineer;

(vi.) Suparamaniam a/l Muniandy (“DW2”), a cake seller;

(vii.) ACP Haji Nordin bin Haji Manan (“DW3”), Deputy Head
of Crime Prevention and Community Safety Department,
Royal Malaysian Police Contingent of Penang; and

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(viii.) Ganesan a/l Narayanan (“DW4”), a social activist and the

Defendant himself.

[9] After the close of the trial, the parties submitted their written
closing submissions and I heard oral arguments from counsel on
25 September 2017.

Background Facts

[10] The Defendant is an active member and spokesperson for an

interest group known as the “Concerned Citizens of the Indian
Community” and he spearheaded forums and press conferences
on behalf of this interest group.

[11] On 30 November 2013, this interest group convened a forum at

the Masyarakat Penyayang Complex, Jalan Utama, Penang
(“Forum”). According to the Defendant, the purpose of the
Forum was “to introduce information to facilitate deliberation
on the larger issues connected to the disposal of the dead of the
Hindu community.”

[12] A pandemonium broke out whilst the Forum was in progress and
the Forum was brought to a premature closure.

[13] The Defendant lodged a police report on 3 December 2013

which incorporated the following statement which is reproduced
in entirety below:

“I make this report against individuals believed to be

hired thugs associated with the Penang Chief Minister Lim
Guan Eng and Deputy Minister Ramasamy who had
threatened me on the 30 th of November 2013. In my
capacity as Head of a committee of concerned citizens, I
had organized a private meeting of Non Governmental

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Organizations and Concerned Citizens about the issue of

the Hindu Crematorium at 7.00 pm at the Masyarakat
Penyayang premises in Jalan Utama, Penang.

The meeting started with about 40-50 people and

proceeded till it was rudely and loudly disrupted by the
above mentioned thugs knows as Rajendran @ Thamby and
another Segaran and another 2 individuals (names not
known).

The purpose of the meeting was to gain consensus from the

group gathered to send a petition to the Chief Minister of
Penang YAB Lim Guan Eng about certain issues that we
wanted the Chief Minister to intervene in regarding the
Hindu Crematorium at Batu Lanchang.

I was talking to the group when these individuals started

to disrupt the meeting. Rajendran started the aggressive
behaviour first followed by Segaran. They kept shouting
that I should not proceed with the petition to the Chief
Minister.

In spite of my repeated appeal to them to be calm so that

we could proceed and that they would get an opportunity
to raise their concerns later in the meeting they insisted on
behaving in a rowdy and unruly manner.

Rajendran kept coming up to the rostrum in a threatening

manner where I was standing to get me to agree to his
demands. On seeing this, member of the audience fearing
that he may bodily harm me got up and blocked him from
getting close to me. At loud shouting match resulted with
the members of the audience asking the four of them (from

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two there were now four openly involved) to go back to

their seats.

In the process there was pushing and shoving a shuffle

broke out and Rajendran punched one of the members. The
punched meeting member was injured with cut lips. The
two, Rajendran and Segaran kept on with their threatening
shouts and also threatened me with bodily injury. They
threatened many in the crowd that they would “take care”
of them when they stepped outside the room.

I believe that these thugs were sent by Chief Minister YAB

Lim Guan Eng and the Deputy Chief Minister YB
Ramasamy to the meeting expressly to disrupt the meeting
and disallow the meeting from proceeding to get the
signatures to the petition.

I come to this conclusion based on their fierce intent to

stop the meeting by disrupting it in this violent and
threatening manner and the constant references not to
send the petition to the Penang Chief Minister. They also
justified their rowdy behaviour by accusing me of setting
the people up in the room against the State Government.

He constantly threatened me that he would “take care” of

me when I leave the hall. I finally called off the meeting
for fear that they would injure me and rest of the
participants.

I request the Police to investigate this matter as I believe

this fear tactic which I believe is used by the Chief
Minister and his Deputy are of serious concern to the
public at large.

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It is my belief that the thugs were sent by the Chief

Minister and the Deputy Chief Minister. I request the
police to investigate this incident. If police investigations
reveal the CM and his deputy are involved, it will be a
crime of significant magnitude against defenceless citizens
by a government that should be safeguarding the security
of its citizens instead of using thugs to attack them, who
are exercising no more than the constitutionally
guaranteed right. This is absolutely a dangerous and
illegal action.

That fact that there was this kind of violent of threatening

opposition to me the meeting also suggests that there may
be something to be hidden in the workings of the Hindu
Endowment Board of Penang that would surface if we
proceeded with public petition of this sort. This also needs
to be investigated for the truth of this allegation.”

[14] Subsequently on 4 December 2013, the Defendant arranged for

the Press Conference at Krystal Point, Jalan Sultan Azlan Shah,
Bayan Baru, Penang. In this connection, the Defendant invited
the following members of the media:

(i.) Predeep Nambiar of the New Straits Times;

(ii.) Ian Mcintyre of The Star;

(iii.) Susan Loone of Malaysiakini;

(iv.) Athi Shankar of Free Malaysia Today;

(v.) Pettah Wazzan Iskandar of Berita Harian;

(vi.) S. Arulldas of The Malay Mail; and

(vii.) Selvam Arjunan of TV3 News.

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[15] At the Press Conference, the Defendant made a speech that was
recorded including an audio recording by Predeep Nambiar. The
transcript of the audio recording included the following:

(i) “And from what they said, and from who they are, we
conclude they were sent in by the Chief Minister of Pulau
Pinang and his deputy Dr. Ramasamy.”;

(ii) “Where the Chief Minister and the senior politicians

in the state are actually bullying the citizens into
subservience”; and

(iii) “We understand that he is ... from Weld Quay. We

understand he is from Weld Quay. And he is closely
associated with Deputy Chief Minister Dr. Ramasamy.”

(collectively “Impugned Statements”)

[16] The Defendant’s press statement was thereafter published in

NST Online bearing caption “Indian interest group claims thugs
interrupted meeting.” and Malaysiakini bearing caption “Thugs
linked to politicians disrupted NGO meeting.” respectively on
the same day.

[17] Consequently, the Plaintiffs commenced the Libel Suit against

The New Straits Times Press (Malaysia) Bhd and Predeep
Nambiar for libel based on the passage “Based on what was said
by these thugs, we believe these thugs were sent by the Chief
Minister and his deputy P. Ramasamy.” that was published in
NST Online.

[18] In the course of the trial of the Libel Suit, Predeep Nambiar
produced his audio recording of the Defendant’s Press
Conference accompanied by a printed transcript thereof.

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[19] After having listened to the audio recording and perusing the
printed transcript, the Plaintiffs instructed their solicitors
Messrs. Mureli Navaratnam who accordingly issued a notice of
action for defamation dated 15 April 2015 to the Defendant.

[20] The Defendant’s solicitors Messrs. Karthig Shan replied by

letter dated 1 September 2015 that the Impugned Statements
were not defamatory.

[21] Hence the Plaintiffs commenced this action on 13 August 2015.

[22] In the Libel Suit, the High Court dismissed the Plaintiffs’ claim.
However on appeal, the Court of Appeal reversed the judgment
of the High Court and awarded the Plaintiffs substantial
damages for libel.

[23] Also on 3 October 2014, Ragindra a/l Sivasamy filed Penang

High Court Civil Suit no. 23NCVC-5-03/2014 (“Associated
Libel Suit”) against the Defendant, MKini Dotcom Sdn Bhd and
Gan Diong Keng for defamation. The plaintiff therein who goes
by the nickname “Weld Quay Thamby” claimed that the
Malaysiakini article that carried the press statement issued by
the Defendant on 4 December 2013 in which he was described as
a “thug” defamatory.

[24] The Associated Libel Suit was however settled on 29 March

2016 on the following terms as per the consent judgment:

“Tindakan ini dipanggil untuk pengurusan kes dalam

kehadiran Dato Ramanathan Pillai bagi pihak Plaintif dan
Encik Simon Murali menyebut bagi pihak Tetuan Kartig
Shan, peguamcara pihak Defendan Pertama dan juga
Kanesalingam & Co, peguamcara bagi Defendan Kedua
dan Ketiga.

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DENGAN PERSETUJUAN Pihak Defendan Pertama akan

menarik balik (retract) segala kenyataan yang dibuat oleh
Defendan Pertama dalam satu sidang akhbar pada
3/12/2013 terhadap Plaintif dalam bahasa Tamil
(Lampiran A) dan bahasa Inggeris (Lampiran B).

JUGA DIPERSETUJUI bahawa Defendan Pertama akan

mengiklankan Lampiran A dalam surat khabar Tamil
“Malaysian Nanban” dan Lampiran B dalam surat khabar
“The Star” dalam 14 hari dari tarikh perintah ini.

SELANJUTNYA DIPERSETUJUI bahawa Defendan Kedua

dan Ketiga akan menyiarkan Lampiran B dalam Portal
laman web “Malaysiakini” secara satu “Letters to Editor”
dengan tajuk “Statement of Retraction by N. Ganesan”
dalam 14 hari dari tarikh perintah ini.

AKHIRNYA DIPERINTAHKAN bahawa tiada Perintah

untuk kos.”

Contentions of the Parties

[25] The Plaintiffs contended that the Impugned Statements uttered

by the Defendant at the Press Conference held is slanderous.
They were spoken in the presence of members of the media who
were invited to the Press Conference as well as fellow members
of the interest group who sat with the Defendant. In addition,
the Defendant caused the Impugned Statements to be published
in an article in the NSTP website
http://www.nst.com.my/latest/Indian-interest-group-claims-
thugs-interrupted-meeting-1.4211194.

[26] According to the Plaintiffs, the natural and ordinary meaning of

the Impugned Statements are that:

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(i.) They have sent thugs to the Forum held on 30 November

2013 in which the Defendant was one of the convenor; and

(ii.) The thugs were sent to violently disrupt the meeting.

[27] Furthermore, the imputations and connotation discernable from

the Impugned Statements are as follows:

(i.) The Plaintiffs are criminals and members of illegal

organisation which are involved in triad activities;

(ii.) The Plaintiffs are individuals with criminal connections;

(iii.) The Plaintiffs abused their respective official positions to

arouse fear and intimidation among members of civil
society; and

(iv.) They are undeserving of the public office they hold in the
State of Penang and/or Malaysia.

[28] On the other side, the Defendant contended that the statements
made in the Press Conference weren’t defamatory but
alternatively if so, the Defendant is excused by the defence of
justification, qualified privilege and fair comment.

[29] In addition thereto, the Defendant contended that the Plaintiffs

action ought to be struck out in limine by reason of res judicata
and/or issue estoppel because the Plaintiffs’ claim ought to have
been pursued in the Libel Suit instituted by them but wasn’t so
pursued.

Findings of the Court

[30] The Plaintiffs’ claims herein are premised on slander as

particularized in paragraphs 11 and 12 of their statement of

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claim. I have stated in Prem Anand Loganathan v. Dhinagaran

Jayabalan (supra) that slander is defamation in a temporary and
transient form either through words or gestures. A slander is not
actionable per se unless excepted by s. 5 of the Defamation Act
1957 which provides:

“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 out by him at the time of
the publication, it shall not be necessary for the plaintiff
to prove special damage whether or not the words are
spoken of the plaintiff in the way of his office, profession,
calling, trade or business.”

[31] In JB Jeyaretnam v. Goh Chok Tong [1985] 1 MLJ 335, Thean J

said as follows in respect of s. 5 of the Singapore Defamation
Act which is in pari materia with the Malaysian Defamation
Act:

“Section 5 of our Defamation Act is in pari materia with

section 2 of the Defamation Act, 1952 of England. At
common law prior to the passing of the Act of 1952 in
order to maintain an action for slander by words spoken of
a person concerning his office, where such office was one
of honour and not of profit and where no special damage
was proved, two requirements must be fulfilled:

(i) the words must impute to that person want of integrity

or corrupt or dishonest conduct or other misconduct in the
discharge of his office, and

(ii) they must be said in the way of that office.

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Since the passing of the Act it is no longer necessary to

satisfy the second requirement but the first requirement
remains. In other words, in order to be actionable per se
without proof of special damage, the slanderous words
which are said to be calculated to disparage a person in
his office, where such office is one of honour, must
impute some want of integrity or corrupt or dishonest
conduct or other misconduct in the discharge of that
office …” (Emphasis is mine.)

[32] The elements of the tort of slander are explained by Suriyadi

Halim Omar JCA (now FCJ) as follows in the Court of Appeal
case of Pardeep Kumar a/l Om Parkash Sharma v. Abdullah
Sani Bin Hashim [2009] 2 MLJ 685:

“[24] To succeed in an action of slander, as in libel, a

plaintiff has to prove that the matter complained of,
which emanated from the defendant is defamatory, refers
to him (an issue of identification) and was transmitted to
a third person (publication). The burden of establishing
those ingredients at the outset rests on the plaintiff.
Thereafter, if the plaintiff has succeeded in establishing
the three ingredients, certain presumptions in favour of the
latter then follows, namely that the matter complained of is
true, and that in actions of slander where it is actionable
per se, damage was caused to the plaintiff. The defendant
in defence must rebut and establish that the remarks made
were true and that the plaintiff has suffered no damage.”
(Emphasis is mine.)

[33] As submitted by Mr. Simon Murali of counsel for the Plaintiffs,

I find that the Defendant herein targeted the Impugned
Statements against the Plaintiffs who are both members of the

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DAP political party who hold public offices. These statements

made specific reference to the positions held by the Plaintiffs as
the Chief Minister and Deputy Chief Minister (II) of the State of
Penang. The Defendant in this respect:

(a) caused ridicule and embarrassment to them in their

capacity as the Chief Minister and Deputy Chief Minister
(II) respectively of the State of Penang;

(b) acted hastily and disregarding the feelings and reputation

of the Plaintiffs as the top leaders of the State of Penang;
and

(c) ruined the Plaintiffs’ name and reputation jointly and

severally as the peoples’ representatives, leaders and
politicians of the State of Penang and Malaysia.

[34] Consequently Mr. Murali submitted that the slander complained

of in this case is actionable per se by virtue of s. 5 of the
Defamation Act 1957 because the uttered words were calculated
to disparage the Plaintiffs in their office, profession and calling.
He suggested that the word “office” included public office. An
instructive commentary from Bindra’s Interpretation of Statutes
7 th Edition was cited with approval by the Federal Court in All
Malaysian Estates Staff Union v. Rajesegaran [2006] 5 AMR
585 which states:

“It is a familiar rule in the construction of legal

instruments, alike dictated by authority and common sense,
that common words in a statute are to be extended to all
objects which, in their usual acceptation, they describe or
denote, unless the context indicates that such a
construction would frustrate the real intention of the
draftsman.”

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The word “office” being a common word must be extended “to

all objects which” it describes or denotes. In the absence of
anything expressed to the contrary, the word “office” must
necessarily refer to public as well as private office.

Furthermore, Mr. Murali submitted there is concrete reason

based on the Federal Constitution as to why the word “office”
must be interpreted to include public office. Article 8 of the
Federal Constitution enshrines the fundamental doctrine of
equality, which guarantees entitlement to every citizen the equal
protection of the law. A defamation suit is a legal recourse to
vindicate the name and reputation of a person who has been
defamed. The legal recourse provides a protection under the law
and facilitates the measures of vindication to bring the
wrongdoer to justice. If the expression “office” is to be
interpreted to confine only to private office, this would mean
only holders of private office can seek legal recourse. Those in
the public office can be desecrated and decimated in their
official capacity while the door of justice will be kept shut.

[35] Ms. S. Thilaga of counsel for the Defendant instead contended

that the Plaintiffs are suing the Defendant in their official
capacity as public officers and politicians particularly as seen in
paragraph 15 of the Plaintiffs’ statement of claim. As the result,
she submitted that the Plaintiffs’ action is not maintainable by
reason of the Derbyshire principle that was adopted by the Court
of Appeal in Utusan Melayu (Malaysia) Berhad v. Dato’ Sri
Diraja Haji Adnan bin Haji Yaakob [2016] MLJU 302. Idrus bin
Harun JCA held as follows therein:

“[17] We would thus summarize the principles emanating

from the decisions in the authorities discussed above as
follows:

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(a) a democratically elected government and individual

members holding office in the government and are
responsible for public administration or having conduct of
the affairs of the government should be open to uninhibited
public criticism relating to such public administration and
affairs;

(b) it would be contrary to public interest to fetter

freedom of speech by restraining public critiques of the
government and those holding public office on matters
relating to public administration and affairs;

(c) there is no public interest favouring the right of the

government and those holding office in the government and
are responsible for public administration or having
conduct of the affairs of the government to have the right
to sue for defamation because to admit such actions would
place an undesirable fetter or have an uninhibiting effect
on freedom of speech; and

(d) the above principles do not restrict the rights of

individuals holding public office from suing in a
defamation action in his personal capacity where
individual reputation is wrongly impaired.

[18] The fundamental question which has arisen in

consequence of the House of Lords’ decision in Derbyshire
County Council relates to the extent to which the principle
emerging from the said decision is applicable to our law
on defamation, in particular, where it involves the
government, any governmental body or individuals who
hold public office in the government suing for defamation.
More specifically, can the respondent maintain the action
for libel? The propositions enunciated in clear terms by

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the United States’ courts in City of Chicago v. The

Tribune Company and New York Times Co. v. Sullivan as
Lord Keith of Kinkel had rightly conceded, emanated
from the American Constitution which concerned with
securing freedom of speech whereas the proposition laid
down by the House of Lords in Derbyshire County
Council was grounded on the public interest
considerations. The decision rendered by the House of
Lords is, in our opinion, no less valid in Malaysia and
should apply alike under and be part of our defamation
law as the principle is related most directly to the
protection of the right to freedom of speech and
expression under Article 10 Clause (1)(a) of the Federal
Constitution and that public interest does not favour the
right of the government and those holding public office
to sue for libel.

[19] We consider that it is one of the fundamental

principles that, in the exercise of the right to such freedom
within the ambit of the Federal Constitution and other
relevant laws, the public should have the right to discuss
their government and public officials conducting public
affairs of the government without fear of being called to
account in the court for their expressions of opinion [The
City of Chicago v. The Tribune Company, supra]. It does
indeed go without saying that so far as the freedom of
press is concerned, it flows from the right to freedom of
speech and expression as guaranteed by Article 10 Clause
(1)(a) of the Federal Constitution the exercise of which
shall at all times be protected and respected but subject to
and no more than the permissible restrictions as may be
imposed by federal law with clear and unequivocal

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language pursuant to Clause (2)(a) thereof...” (Emphasis

is mine.)

[36] I observed that the Federal Court in Dato’ Sri Diraja Haji
Adnan bin Haji Yaakob v. Utusan Melayu (Malaysia) Berhad on
13 February 2017 however ruled that the application or
otherwise of the Derbyshire principle ought to be determined
based on the facts as found at the trial and not at an
interlocutory striking out application as was the case in the
Court of Appeal.

[37] That notwithstanding, the Court of Appeal by a majority

decision in an O. 14A application in Government of the State of
Sarawak & Anor v. Chong Chieng Jen [2016] 5 CLJ 169 went on
to hold that the Derbyshire principle ought not to be adopted.
Abdul Rahman Sebli JCA held as follows therein:

“[38] While in the process of writing this judgment, it was

brought to my notice that this court had recently dealt with
the issue of whether the Derbyshire principle applies in
our country. That occasion is the appeal against the
decision of the High Court in Dato’ Seri Diraja Hj Adnan
Hj Yaakob v. Utusan Melayu [2015] 7 CLJ 960. The
factual matrix as per the headnotes is this. The plaintiff,
the elected State Assemblyman for Pelangai and Chief
Minister (‘Menteri Besar’) of the State of Pahang, claimed
for defamation against the defendant in respect of a
newspaper article in Mingguan Malaysia. The defendant
sought to strike out the plaintiff’s writ and statement of
claim and re-amended statement of claim (encl. 34) under
O. 18 r. 19(1)(b), (c) and/or (d) and O. 92 r. 4 of the Rules
of Court 2012 (‘ROC’). The issue raised for the court’s
determination therein was whether the plaintiff had locus

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standi to institute and maintain the action against the

defendant. The defendant submitted that the plaintiff, in
his official capacity as the Menteri Besar of Pahang,
lacked the locus to initiate and maintain the suit on the
ground that the plaintiff was an elected representative who
can be subjected to public criticism.

[39] The learned judge there dismissed the application to

strike out on the ground that the plaintiff there was not
suing in his official capacity as the Menteri Besar or Chief
Minister. The learned judge had in fact applied the
Derbyshire principle and as such she had to determine, as
a matter of fact, whether the plaintiff was suing as the
Chief Minister and if so, he would be barred from
maintaining an action for defamation as the office of the
Chief Minister is a democratic elected office. After
perusing the pleadings, the learned judge found as a fact
that the plaintiff was suing in his personal capacity and
dismissed the application to strike out. On appeal to this
court, the High Court’s decision was overturned and the
case was struck out on the ground that the plaintiff is
suing in the capacity as the Chief Minister. Though no
grounds are available yet, it can also be safely assumed
that the Derbyshire principle was applied otherwise that
suit would not have been struck out. Hence we can say that
presently there are two appellate court decisions adopting
the Derbyshire principle as part of the law of defamation
in this country. I draw comfort for my view from those two
decisions of this court.

[40] Across the causeway in Singapore, the courts there

did not appear to have rejected the Derbyshire principle.
In Lee Hsien Loong v. Singapore Democratic Party and

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Others and Another Suit [2006] SGHC 220, it was argued

by the defendant there that whether the plaintiff being the
Prime Minister had the locus to sue for defamation was an
issue that should be tried. The defendant relied on the
Derbyshire principle to contend that a Government or
Public Authority cannot be defamed, thus cannot sue for
defamation. The learned judge rejected the defendant’s
argument premised on the rationale that the Derbyshire
principle did not restrict an individual’s right to sue for
defamation even though that individual holds public office.
Her Ladyship quoted with approval the legal principle
expounded by VK Rajah J in Chee Siok Chin and Others v.
Minister for Home Affairs and Another [2006] 1 SLR (R)
582 which states as follows:

The case [Derbyshire], however, makes it clear that the

decision itself does not affect the right of an individual
member or officer of a government body to sue if the
statement about the body is capable of being interpreted
as referring to the individual. Indeed, the ability of the
individual to sue seems to be regarded as a reason for
denying such right to the body: Gatley on Libel and
Slander [Sweet & Maxwell, 10 th Enclosure 2a dismissed,
2004] at para 8.20.

Needless to say the learned judge could have dismissed the

point raised by the defendant there by rejecting rather
than distinguishing the Derbyshire principle.

[41] Further, can one really say that Governments have

a reputation per se? Governments of the day are made up
of the members of the winning political party and their
reputation or popularity fluctuates due to numerous and

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varied reasons. It cannot be disputed that a Government

of the day may be so popular due to an implementation of
a particular policy that no amount of defamatory
utterances could put a dent on its reputation or
popularity. How does one measure or determine that
reputation? Such is the nebulous nature of the reputation
of a Government. In any event, the Government of the
day can always rebut whatever that is said of it in the
public domain. Lord Keith in Derbyshire, in my view, had
put this in proper perspective when he said as follows:

In the case of a local authority temporarily under the

control of one political party or another it is difficult to
say that the local authority as such has any reputation of
its own. Reputation in the eyes of the public is more
likely to attach itself to the controlling political party,
and with a change in that party the reputation itself will
change. A publication attacking the activities of the
authority will necessarily be an attack on the body of
councillors which represents the controlling party, or on
the executives who carry on the day-to-day management
of its affairs. If the individual reputation of any of these
is wrongly impaired by the publication any of these can
himself bring proceeding for defamation. Further, it is
open to the controlling body to defend itself by public
utterances and in debate in the council chamber.

Applying the above reasoning to the present case, as the

alleged defamatory utterances are related to the
management of the financial affairs of the State, the most
proximate individual, I would imagine, could be the
Minister of Finance of Sarawak in his own personal
capacity. But that said and to avoid any doubt, let me say

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that I am not making any ruling that the aforesaid Minister

is the proper person who should be embarking on this suit
of defamation against the respondent. That issue is left for
another day.” (Emphasis is mine.)

[38] It seems to be that the law on the applicability of the Derbyshire

principle is presently inconclusive and still in flux.

[39] On my careful reading of the case of Derbyshire County Council

v. Times Newspapers Ltd [1992] 3 All ER 65, the House of
Lords basically held that for public policy reason the local
authority could not maintain an action for defamation.

[40] Thus if the Derbyshire principle is strictly applied, the action

would not be maintainable if say the Majlis Bandaraya Pulau
Pinang or the Majlis Perbandaran Seberang Perai sued the
Defendant as contended by Mr. Murali. It is however doubtful if
the principle should be extended to apply to say the State
Government of Penang in view of the apparent conflict of
position seen in Government of the State of Sarawak & Anor v.
Chong Chieng Jen (supra) and Utusan Melayu (Malaysia)
Berhad v. Dato’ Sri Diraja Haji Adnan bin Haji Yaakob (supra).

[41] Be that as it may, the Plaintiffs here are individuals. It is a

question of fact as to the capacity in which the Plaintiffs are
suing the Defendant. From the evidence that emerged before me,
I find that they are suing the Defendant in personam as holders
of public office. In my view, there is a vital distinction and
difference between the Plaintiffs suing as public officers in their
official capacity and the Plaintiffs as public officers suing
officially on behalf of the State Government. In the former, they
are in fact suing in their personal capacity for having been
disparaged by the Defendant in discharge of their public office
and therefore attracted the application of s. 5 of the Defamation

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Act 1957 because I agree with Mr. Murali that the word “office”
includes both private and public offices. However in the latter,
they would instead be suing as agents on behalf of the State
Government of Penang. I further hold that the Derbyshire
principle would only be attracted (if applicable at all) in the
latter but which is not the case here. In my view, the nature of
the Plaintiffs’ action as well as the capacity as assumed by them
is no different from that in Jeyaretnam Joshua Benjamin v. Lee
Kuan Yew & Anor [1992] 2 SLR 310 that have long been
followed by the Malaysian courts including in the recent Court
of Appeal cases of Philip Lindsay Brook v. Mirza Mohamed
Tariq Beg Mirza HH Beg [2016] 1 LNS 1061 and Zaheda Mohd
Rafik v. Noor Azman Azemi [2017] 1 LNS 529. In Jeyaretnam
Joshua Benjamin v. Lee Kuan Yew & Anor (supra), the late Mr.
Lee Kuan Yew also in his capacity as holder of the public office
of Prime Minister of Singapore sued the defendant for having
defamed him. He successfully initiated and pursued other
lawsuits in similar capacity including in Lee Kuan Yew v. Davies
& Ors [1990] 1 MLJ 390, Lee Kuan Yew v. Devan Nair [1990] 3
MLJ 452 and Lee Kuan Yew v. Chin Vui Khen & Anor [1991] 3
MLJ 494.

[42] In the premises, the Defendant’s contention that the Plaintiffs’

action is un-maintainable on the Derbyshire principle cannot be
accepted. I therefore hold that the Plaintiffs’ action is
maintainable and actionable per se as excepted by s. 5 of the
Defamation Act 1957.

[43] Moving on, it is as submitted by Mr. Murali beyond a shadow of

doubt that the Impugned Statements referred to the Plaintiffs
from the contents of the statements themselves. The Press
Conference was in fact specifically called by the Defendant to
afford him the opportunity to launch ferocious assault on the

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character of the highest ranking public officer and his deputy in

the State of Penang.

[44] I listened to the audio recording in the CD several times and I

am satisfied that the Impugned Statements were in fact uttered
by the Defendant as also confirmed by Predeep Nambiar with
specific reference to the Plaintiffs. Accordingly I find that this
ingredient of the tort of the Impugned Statements referring to
the Plaintiffs is met.

[45] In respect of the publication of the Impugned Statements, Mr.

Murali also contended that this is beyond a shadow of doubt
because these statements were made to several members of the
press who were present. That aside, there were others present
too as mentioned by the Defendant himself such as:

(i.) Nandakumar, a member of Hindu Dharma Mahamandaram,

a non-governmental organisation (“NGO”);

(ii.) Jothi, a concerned citizen and a member of the same NGO;

(iii.) Jarnatanan who was introduced as another concerned

citizen;

(iv.) Samy, chairman of a Hindu temple;

(v.) Jeganathan; and

(vi.) Manimaran of the Bayan Lepas Tamil School Old Boys

Association.

[46] I am satisfied and find that the Impugned Statements were heard
by all those present in the Press Conference of no less than 12
persons. Furthermore, the slander was also published in an
article in the NSTP website
http://www.nst.com.my/latest/Indian-interest-group-claims-

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[2017] 1 LNS 2211 Legal Network Series

thugs-interrupted-meeting-1.4211194. Thus, this ingredient of

the tort on publication is also met.

[47] As to whether the Impugned Statements are defamatory, the test

of determining the defamatory nature of a statement was
elucidated as follows by Mohd Azmi J (later SCJ) in Syed Husin
Ali v. Syarikat Percetakan Utusan Melayu Berhad [1973] 2 MLJ
56:

“Thus, the test of defamatory nature of a statement is its

tendency to excite against the plaintiff the adverse opinion
of others, although no one believes the statement to be
true. Another test is: would the words tend to lower the
plaintiff in the estimation of right-thinking members of
society generally? The typical type of defamation is an
attack upon the moral character of the plaintiff attributing
crime, dishonesty, untruthfulness, ingratitude or cruelty.”

and this dicta was approved and adopted by the Court of Appeal
in Joceline Tan Poh Choo v. Dato’ V. Muthusamy [2003] 5 AMR
195.

Moreover in Ayob Saud v. T.S. Sambathamurti [1989] 1 CLJ

321, Mohamed Dzaiddin J (later CJ) quoted with approval the
following instructive passage from Gatley on Libel and Slander,
6 th ed.:

“To be defamatory, the imputation need to have no actual

effect on the person’s reputation; the law looks only to its
tendency.”

[48] Although the case of Utusan Melayu (Malaysia) Bhd v. Othman

Hj Omar [2017] 2 CLJ 413 referred to by the Defendant appears
to be an authority that the Defendant’s speech must be examined

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as a whole, I find that it was nonetheless said in the context of a

libel therein. I think this should be distinguished in the context
of a slander. A libelous material is permanently available and
accessible in its entirety. Hence fairness dictates that it must be
read as a whole. This cannot be equated with slander that is only
temporary and transient in form. The speech that contained the
slander cannot therefore objectively be reviewed by the listener
to appreciate the whole contextual setting thoroughly unlike that
of libel where the reader can read it over again and again.

[49] According to the Defendant, the Impugned Statements are not

defamatory and do not have the pleaded meaning and it is
reasonable for the Defendant to form a belief that Ragindra a/l
Sivasamy nicknamed Weld Quay Thamby and other individuals
who disrupted the Forum were indeed sent by the Plaintiffs
especially when Weld Quay Thamby yelled in Tamil that the
intended petition discussed in the Forum cannot be sent to the
First Plaintiff. These statements were made honestly out of
curiosity that did not contain any value judgment.

[50] Gopal Sri Ram JCA (later FCJ) held as follows in Chok Foo
Choo @ Chok Kee Lian v. The China Press Bhd [1999] 1 MLJ
371:

“It cannot, I think, be doubted that the first task of a court

in an action for defamation is to determine whether the
words complained of are capable of bearing a defamatory
meaning. And it is beyond argument that this is in essence
a question of law that turns upon the construction of the
words published. As Lord Morris put it in Jones v. Skelton
[1963] 3 All ER 952 at p 958:

The ordinary and natural meaning of words may be either

the literal meaning or it may be an implied or inferred or

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an indirect meaning: any meaning that does not require

the support of extrinsic facts passing beyond general
knowledge but is a meaning which is capable of being
detected in the language used can be a part of the ordinary
and natural meaning of words (see Lewis v. Daily
Telegraph Ltd [1963] 2 All ER 151). The ordinary and
natural meaning may therefore include any implication or
inference which a reasonable reader, guided not by any
special but only by general knowledge and not fettered by
any strict legal rules of construction, would draw from the
words. The test of reasonableness guides and directs the
court in its function of deciding whether it is open to a
jury in any particular case to hold that reasonable persons
would understand the words complained of in a defamatory
sense.

In my judgment, the test which is to be applied lies in the

question: do the words published in their natural and
ordinary meaning impute to the plaintiff any
dishonourable or discreditable conduct or motives or a
lack of integrity on his part? If the question invites an
affirmative response, then the words complained of are
defamatory...” (Emphasis is mine.)

Practical guidance may be sought from Gatley on Libel and

Slander 11 th ed. at paragraph 3.13 with emphasis added by me:

In ruling on meaning, the court is not determining the

actual meaning of the words but delimiting the outside
boundaries of the possible range of meanings and setting
the “ground rules” for trial Thus in Shah v. Standard
Chartered bank [1999] Q.B. 240 CA the allegations were
capable of bearing the meaning that the plaintiffs were

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[2017] 1 LNS 2211 Legal Network Series

guilty of money laundering; but the use of the

miscellaneous qualifying words such as “alleged” or
“apparently” meant that in the alternative they were
capable of imputing no more than reasonable suspicion.
The nature of the exercise has been summarized as
follows:

“(1) The governing principle is reasonableness. (2) The

hypothetical reasonable reader is not naive but he is not
unduly suspicious. He can read between the lines. He can
read in an implication more readily than a lawyer and may
indulge in a certain amount of loose thinking but he must
be treated as a man who is not avid for scandal and
someone who does not, and should not select one bad
meaning where other non-defamatory meaning are
available. (3) Over-elaborate analysis is best avoided. (4)
The intention of the publisher is irrelevant. (5) The
article must be read as a whole, and “bane and antidote”
taken together. (6) The hypothetical reader is taken to be
representative of those who read the publication in
question. (7) In delimiting the range of permissible
defamatory meanings, the court should rule out any
meaning which, ‘can only emerge as the produce of some
strained, or forced, or utterly unreasonable
interpretation…’ (8) It follows that it is not enough to say
that by some person or another the words might be
understood in a defamatory sense.”

The exercise is one of impression.”

[51] It is therefore plain to me that the Defendant’s intention in

uttering the Impugned Statements as to whether they represented

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only his belief or otherwise is immaterial. The critical factor is

the impression to the reasonable listener.

[52] The natural and ordinary meaning of the Impugned Statements

in my impression unmistakably portrayed the Plaintiffs having
sent thugs to the Forum held on 30 November 2013 to violently
disrupt the meeting. In addition, the Plaintiffs had obtained
obedience of citizens through imposition of unethical if not
illegal means. Besides by way of innuendo, the Plaintiffs were
also made out as individuals with criminal connections with
secret illegal societies and have accordingly abused their
respective official positions to arouse fear and intimidation
among members of civil society. It is objectively a callous
assault by the Defendant on the Plaintiffs’ character and
integrity. I am fortified by the following testimony of Predeep
Nambiar at trial too, excerpts of which are reproduced as
follows:

“Q (under cross examination). I repeat the question again

based on Yang Arif’s direction, that as a reporter
attending the PC on 04-12-2013, upon the completion of
the PC, did you get the impression that my client had valid
reasons to make the statements complained of by the
Plaintiffs as per paragraph 7?

A. In my opinion, I think he had every right to say

whatever he had said and I feel personally I feel based on
his explanation and the police report given to us at the
time, I am compelled to belief what the statements he
made, these three statements.

...

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[2017] 1 LNS 2211 Legal Network Series

Q (under re-examination). So, this gentleman had made

the impugned statements. When we said the impugned
statements, this is where we are complaining the
statements. “And from what they said, and from who they
are, we conclude they were sent in by the Chief Minister of
Pulau Pinang and his deputy Dr. Ramasamy.” During
cross examination, you have also informed this
Honourable Court that there was a police report which
was lodged by Mr. Ganesan and when he was making his
press conference, he already had the police report. Now,
in light of all these, what was your impression when you
heard him said this?

A. Well My lord, I was initially surprised to hear that

the existing Chief Minister would do something like that to
NGO. I was surprised but nevertheless, I thought I will
take it as a pinch of salt and let’s see what he has to say.
For instant, the police report which was shown to us later.
It kind of made more sense. So that’s the impression that
was left to me.

Q. So the impression is, what he has said is believable?

Is that what you are saying?

A. Yes, sounded real but at the same time I felt ... you
know... I had a mixed feeling probably...

Q. Now, the next impugned statement can be found at

page 10. This is what he had said and we already heard it
this morning, “Where the Chief Minister and the senior
politicians in the state are actually bullying the citizens
into subservience.” So, what was the impression you have
when you heard this from the gentleman?

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...

A. Sounded very convincing, sounded very convincing.

Q. Okay, now, I will go to the last impugned statement.

There are many other things but we focus on this. This is
the exchange or rather the q & a between Mr. Ganesan
and Ian Mcintyre which can be found at page 13 of Bundle
B, My Lord. Now, the question was from Mr. Ian Mcintyre,
“You know his background sir?” They are talking about
the so-called Weld Quay Thamby who was described as a
thug and Mr. Ganesan. Mr. Ganesan said “We understand
he is from Weld Quay. And he is closely associated with
the Deputy Chief Minister Dr. Ramasamy.” We heard that
from the audio recording as well. Please tell us at that
point when you heard this, what was your impression?

A. I was quite shocked and an academic like Mr.

Ramasamy could have associated with thugs but of course
the reporters and me we feel like okay let’s hear him out
what he has to say, we will make our judgment later.

Q. But at that point of time?

A. At that point of time I was quite shocked.

Q. When you said shocked, why were you shocked? You

will only shock when you have certain perception. That’s
what we want to know?

A. For a politician to stood (sic) so low and sending

thugs...

...

Q. So you said you were shocked?

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[2017] 1 LNS 2211 Legal Network Series

A. I was quite disturbed like wow, Deputy Chief

Minister could send thugs to stop for such a menial thing
that stood (sic) him really low. So, that’s how I felt. I was
quite shocked. But at the same time in disbelief you know.
I have attended so many press conferences. People will
allege a lot of different things. But this seems to be very
real you know because with all the police report he showed
us and the photos you know if you put two and two
together. He made a very solid argument and a case. So I
took it with a pinch of salt. So, I thought okay look, the
ultimate issue is how can you attack someone at the forum,
a peaceful forum. So that was my genuine concern.

Q. … There is a quoted test there, “based on what was

said by these thugs we believe these thugs were sent in by
Chief Minister Lim and his deputy P. Ramasamy,” he said
in a press conference in Bayan Lepas earlier. Okay, the
emphasis now is on the word ‘believe’, in the online
article is ‘believe’. Now, let us look back page 9 of the
same bundle. What we have heard today and yesterday on
the audio recording. Here, the complaint statement which I
referred just now “And from what they said, and from you
they are, we conclude...”, the word used was ‘conclude’.
Mr. Ganesan’s own word, we ‘conclude’ they were sent in
by the Chief Minister of Pulau Pinang and his deputy Dr.
Ramasamy. Now, please explain why we already heard the
audio recording, why in transcript it is ‘conclude’ but in
your online article...?

...

A. Well My Lord, I will make it simple. Why this

paragraph is different from the exact transcript, we try to

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make it we cannot go ... Although quotation supposed to

contain quotes as said or uttered exactly by that person
but sometimes we try to condense, reduce and try to you
see here it says ‘conclude’ you know over in my story I
have actually soften the blow if I may, I put ‘We believe’,
to his belief you see. How can you conclude immediately
out of thin air so I have changed it slightly but it is still
the same meaning nevertheless. And journalists are given
that kind of license, so long you stay within the same
meaning, it is allowed. You know, yes, it is within quote
and supposed to be exact words but these have been edited
into, for brevity and clarity and also for someone to get
him out of trouble. You know, we cannot conclude
immediately. There is no black and white proof. So, that is
my explanation on this.”

I am further mindful that the Court of Appeal in the appeal of

the Libel Suit on 6 September 2016 nevertheless found the
‘watered down’ article of Predeep Nambiar and published by
The New Straits Times Press (Malaysia) Bhd defamatory of the
Plaintiffs, what more the original emphatic uttered version of
the Defendant!

[53] Consequently, the reputation of the Plaintiffs might in my

opinion have been adversely lowered in the estimation of right
thinking members of society particularly Penangites.
Accordingly, I find the ingredient element of the tort that the
Impugned Statements are defamatory is also met. The Plaintiffs
have therefore successfully proved that the Defendant defamed
them.

[54] Before I consider the defences advanced by the Defendant, it is

necessary at this juncture for me to deal with Ms. Thilaga’s

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submission that the Plaintiffs action cannot be sustained

notwithstanding that they have successfully proved that the
Defendant defamed them because of res judicata or issue
estoppel.

[55] In this respect, the Defendant pointed to substantial similarities

between the Libel Suit and this suit by way of comparison of the
statement of claim filed by the Plaintiffs respectively. Ms.
Thilaga hence submitted that the central issue is one and the
same in both suits. She quoted Gopal Sri Ram JCA (later FCJ) in
the Federal Court case of Boustead Trading (1985) Sdn Bhd v.
Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 as
follows:

“The time has come for the court to recognise that the
doctrine of estoppel is a flexible principle by which justice
is done according to the circumstances of the case. It is a
doctrine of wide utility and has been resorted to in varying
fact patterns to achieve justice. Indeed the circumstances
in which the doctrine may operate are endless.”

[56] Ms. Thilaga then referred to the Federal Court case of Asia
Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995]
3 CLJ 783 on res judicata where Peh Swee Chin FCJ held as
follows:

“Thus, there are in fact two kinds of estoppel per rem

judicatum. The first type relates to cause of action
estoppel and the second, to issue estoppel, which is a
development from the first type.

The cause of action estoppel arises when rights or

liabilities involving a particular right to take a particular
action in Court for a particular remedy are determined in

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a final judgment and such right of action i.e. the cause of

action, merges into the said final judgment; in layman’s
language, the cause of action has turned into the said final
judgment. The said cause of action may not be re-litigated
between the same parties because it is res judicata.

In order to prevent multiplicity of actions and also in

order to protect the underlying rationales of estoppel per
rem judicatum and not to act against them, such estoppel
of cause of action has been extended to all other causes of
action (based on the same facts or issues) which should
have been litigated or asserted in the original earlier
action resulting in the final judgment and which were not
either deliberately or due to inadvertence.”

She further referred to the Court of Appeal case of Letchumanan

Gopal v. Pacific Orient & Co Sdn Bhd [2011] 5 CLJ 866 where
Abdul Hamid Embong JCA (later FCJ) held as follows:

“[18] Literally translated, res judicata is “the fact has

been decided”. It expresses a general public interest
policy that the same issue (or cause of action) should not
be litigated more than once even if the parties are
different. It prevents vexatious litigation and any abuse of
the courts’ process on the premise that final judgments are
binding and conclusive. (See Henderson v. Henderson
[1843] 3 Hare 100). The criminal law equivalent is the
doctrine of double jeopardy.”

She also referred to the recent Court of Appeal case of Dato

Sivananthan Shanmugam v. Artisan Fokus Sdn Bhd [2015] 2 CLJ
1062 where Idris Harun JCA held as follows:

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[2017] 1 LNS 2211 Legal Network Series

“[20] The plea of res judicata comprises two distinct forms

of estoppel that is to say, cause of action estoppel and
issue estoppel. Drake J in North West Water Ltd v. Binnie
& Partners (a firm), supra stated that cause of action
estoppel was confined to cases where the cause of action
and the parties were the same in the second suit as they
were in the first suit. In such a case the bar is absolute
(OCBC Bank (Malaysia) Bhd v. Kredin Sdn Bhd, supra ).
On the other hand, issue estoppel would involve going over
precisely the same issue or point already decided in the
first action or refer to an issue that has been previously
litigated and determined between the same parties and the
same issue is raised in a subsequent proceedings between
the same parties involving a different cause of action to
which the same issue is relevant and one of the parties
seeks to reopen the issue. The High Court decision in
Seruan Gemilang Makmur Sdn Bhd v. Badan Perhubungan
UMNO Negeri Pahang Darul Makmur [2009] 1 LNS 1457;
[2010] 8 MLJ 57 clearly shows that the requirements of
issue estoppel are that the parties to the judicial decision
or their privies were the same persons as the parties to the
proceedings in which the estoppel is raised and that the
same question had been decided. In Asia Commercial
Finance (M) Bhd v. Kawal Teliti Sdn Bhd, supra the
Supreme Court succinctly explained that the term ‘issue
estoppel’ literally meant simply an issue which a party was
stopped from raising in subsequent proceeding. Issue
estoppel prevents contradiction of a previous
determination, whereas cause of action estoppel prevents
reassertion of the cause of action (see also Chemfert Sdn
Bhd & Anor v. Lim Hua [2010] 7 CLJ 491).

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[2017] 1 LNS 2211 Legal Network Series

...

[24] In North West Water Ltd v. Binnie & Partners (a

firm), supra, three defendants namely the consultant
engineers, the water authority and the contractors were
sued for negligence but only the consultant engineers were
wholly found to be negligent. In subsequent separate
proceedings where the water authority issued proceedings
against the consultant engineers based on contract and
negligence to recover damages, the court stated that
consideration of the authorities reveal two schools of
thought on the issue of the limits which should be put on
the application of the doctrine of estoppel. One approach
was called the broad one which held that the true test of
an issue estoppel was whether for all practical purposes
the party seeking to put forward some issue had already
had that issue determined against him by a court of
competent jurisdiction, even if the parties to the two
actions were different. The conflicting approach was to
confine issue estoppel to that species of estoppel per rem
judicatam that may arise in civil actions between the
same parties or their privies. Drake J in preferring the
broader approach to a plea of issue estoppel said:

In my judgment, this broader approach to a plea of issue

estoppel is to be preferred. I find it unreal to hold that
the issues raised in two actions arising from identical
facts are different solely because the parties are different
or because the duty of care owed to different persons is in
law different. However, I at once stress my use of the
word ‘solely’. I think that great caution must be
exercised before shutting out a party from putting
forward his case on the grounds of issue estoppel or

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abuse of process. Before doing so the court should be

quite satisfied that there is no real or practical difference
between the issues to be litigated in the new action and
that already decided, and the evidence which may
properly be called on those issues in the new action.

...

[26] We would emphasise at this juncture that the present

action could have been included in the HTF suit by reason
of the fact that the relief, evidence relied on and the
witnesses are the same. In truth, the claims and relief
sought in both suits share one common object which is the
refund of RM2.3 million from Cosmotine, the appellant and
KAH which amount became liable to be refunded as a
result of the alleged breach of the agreement. The only
difference lies in the cause of action.” (Emphasis is mine.)

[57] Consequently, Ms. Thilaga submitted that the Plaintiffs’ claim

in this present suit and issue in the suit could have been
ventilated in the Libel Suit for it to be specifically determined.
However as the Plaintiffs chose not to do so, they must now be
precluded from raising the same issues which have already been
raised and determined by the Court of law earlier. According to
her, the Defendant could and ought to have been joined as a
party by the Plaintiffs in the Libel Suit based on Order 15 rule
6(2)(b) of the Rules of Court 2012 following Hee Awa & Ors v.
Syed Muhammad Sazalay & Anor [1988] 1 MLJ 300 and Chan
Yee v. Chan Yoke Fong [1990] 1 CLJ 36.

[58] Mr. Murali replied that the plea of res judicata as advanced by
the Defendant is a non starter because the fallacy of the
argument in support of the plea lies in the failure to appreciate
the distinction between the cause of action founded on libel and

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that on slander. The Libel Suit was an action on libel and the
words complained though attributed to the Defendant are
different from the Impugned Statements in this suit on slander.

[59] In addition, he submitted that there is unchallenged evidence of

the Plaintiffs on how they discovered the exact words uttered by
the Defendant during the Press Conference. As a matter of fact,
the discovery was only made during the trial of the Libel Suit in
which Predeep Nambiar who was a co-defendant there produced
the transcript of the audio recording of the Press Conference.

[60] The law on res judicata and issue estoppel is settled but their
application is in my view fact sensitive depending on the unique
circumstances of each case. Thus in Dato Sivananthan
Shanmugam v. Artisan Fokus Sdn Bhd (supra), the Court of
Appeal refused the plaintiff’s reassertion of his claim for
damages for breach of contract arising from failure to refund
deposit paid pursuant to a joint venture agreement where
summary judgment was already obtained by another related
party for dishonoured cheque on the refund of the same deposit.
It is clear that the Court of Appeal was adverse to the mischief
of double recovery of the same claim which would be patently
unjust.

[61] The law of defamation however permits an aggrieved plaintiff to

sue the defendant for slander as well as other defendants who
printed and published the slander for libel too. This is made
clear in Gatley on Libel and Slander 11th ed. at paragraph 8.2
viz:

“... Where several persons are jointly concerned in the

publication of a libel they may all be joined as co-
defendants, or any one of them may be sued separately. If
the claimant elects to sue one of them separately, it is no

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defence that others are jointly liable with him nor will
such fact mitigate the damages recoverable. Judgment
against the one defendant will not bar the claimant from
bringing an action or actions against any other person or
persons who joined in the publication which produced the
damage; but the claimant will not be entitled to the costs
of any such subsequent action unless the court is of the
opinion that there was a reasonable ground for bringing
it.”

In Carter-Ruck on Libel and Privacy 6 th ed. at paragraph 5.26,

the learned authors articulated:

“Every republication or repetition of a defamatory

imputation is a new publication and creates a fresh cause
of action in the person defamed. The person repeating the
imputation will be treated as if he had originated it. Thus,
if A speaks in a defamatory way about B to C and C
repeats the defamatory imputation to D, separate claims
will lie against both A and C. As was said in the American
case: ‘The bearer of a libel is as guilty as its author so far
as publication is concerned.’”

[62] It is therefore generally not considered double and multiple

recovery of claim in spite that the cause of action of slander and
libel arose from the same facts. The claims can be pursued
consecutively or concurrently. Therefore it is my view neither
mandatory nor necessary for the Plaintiffs here to pursue their
claims against the Defendant in the Libel Suit. Contrary to that
alleged by the Defendant, I do not think that misjoinder or non-
joinder had happened here.

[63] Be that as it may, the Impugned Statements in this suit are not
wholly identical with that in the Libel Suit as well. At best,

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there is some similarity between the first of the Impugned

Statements here that reads:

“And from what they said, and from who they are, we
conclude they were sent in by the Chief Minister of Pulau
Pinang and his deputy Dr. Ramasamy.”

and the impugned statement in the Libel Suit reads:

“Based on what was said by these thugs, we believe these

thugs were sent in by the Chief Minister Lim and his
deputy P. Ramasamy.”

It can nevertheless be seen that the tenor of the Defendant’s

reported utterance in the press wasn’t as accurate and emphatic
as that actually uttered by him. That aside, the Impugned
Statements here include:

“Where the Chief Minister and the senior politicians in the

state are actually bullying the citizens into subservience.”

and

“We understand that he is ... from Weld Quay. We

understand he is from Weld Quay. And he is closely
associated with Deputy Chief Minister Dr. Ramasamy.”

which were not pursued in the Libel Suit. They are themselves
each capable of separately sustaining an independent cause of
action of slander and resultant reliefs.

[64] I also accept the explanation of the Plaintiffs that they did not
then have the evidence of the actual utterances made by the
Defendant at the material time when they filed the Libel Suit. It
is in my view therefore not reasonable to expect them to rope in
the Defendant for slander without concrete proof of what was

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actually uttered by him. The evidence only surfaced during the

trial of the Libel Suit which would have been too late for the
Plaintiffs to then add the Defendant especially in light of the
Federal Court case of Hong Leong Finance Bhd v. Low Thiam
Hoe & Another Appeal [2015] 8 CLJ 1. Contrary to the
Defendant’s contention, the Plaintiffs could not have sought
discovery of the audio recording and transcript because they
were not aware of their existence at the material time pre-trial.

[65] In the premises, based on the facts and circumstances here, I do

not find that res judicata or issue estoppel (including cause of
action estoppel) as asserted by the Defendant is attracted to
defeat the Plaintiffs’ claims in this suit.

[66] I will now deal with the defences raised by the Defendant. The
Defendant firstly raised justification in paragraph 9 of his
amended defence as follows:

“Secara alternative Defendan menyatakan bahawa

sekiranya ada sebarang pengataan di dalam Sidang
Akhbar tersebut, ia tidak mempunyai unsur-unsur fitnah
dan merupakan satu kenyataan benar dan/atau justifikasi
mengenai tingkah laku individu tersebut yang hadir
sebagai penceroboh dan telah bertindak liar, ganas, tidak
beradab serta mengucar-kacir dan mengganggu forum
tersebut.”

[67] The law is trite that justification is a complete defence in an

action for defamation. Justification has been explained by Wan
Hamzah SCJ in the Supreme Court case of S. Pakianathan v.
Jenni Ibrahim [1988] 2 MLJ 173 as follows:

“The burden lies upon the defendant to establish

justification. The burden does not lie on the plaintiff to

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prove that the defamatory words are false, because the law
presumes this in his favour: Belt v. Lawes [1882] 51 LJQB
359 361. To establish justification, the defendant must
prove that the defamatory imputation is true. It is not
enough for him to prove that he believed that the
imputation was true: Peters v. Bradlaugh [1884] 4 TLR
467…”

Furthermore in the more recent Court of Appeal case of Dato

Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen
Malaysia Bhd & Anor [2014] 3 CLJ 560, Abang Iskandar JCA
opined as follows:

“[24] Again, perhaps we should go back to what in essence

is required to be established by a defendant who is
desirous of putting up a defence of justification in facing
up a defamation suit. In relying on the defence of
justification the burden of proof is on the defendant to
prove that the allegations made are true or are
substantially true. The defendant must prove it on the
balance of probabilities, that is, the allegation is more
likely than not to be true. For example, an allegation
published by repeating a rumour cannot be justified by
proving that there was such a rumour. A defendant is
required to prove the substance of the allegation. Since the
burden of proving the truth of an allegation is on the
defendant, claimants enjoy a distinct advantage in
defamation claims. Justification has to be used with great
care. It can often be difficult to obtain sufficient
admissible evidence to persuade the judge that the
statement is true. This will sometimes result in the media
being unable to publish allegations which are generally
believed to be true, but which they may not be able to

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prove to the standard required in court. Further, an

unsuccessful defence of justification is likely to increase
the level of any damages awarded.” (Emphasis is mine.)

Besides that, there is also the court of appeal case of Chong

Swee Huat & Anor v. Lim Shain Ghee t/a L & G Consultants &
Education Service [2009] 3 MLJ 665 where Zainun Ali JCA
(now FCJ) opined as follows in her dissenting judgment:

“[231] Our Defamation Act 1957 provides for the defence

of justification. Section 8 read:

In an action for libel or slander in respect of words

containing two or more distinct charges against the
Plaintiff a defence of justification shall not fall by reason
only that the truth of every charge is not proved if the
words not proved to be true do not materially injure the
Plaintiff’s reputation having regard to the truth of the
remaining charges.

[232] In other words a purposive approach is taken in

interpreting s. 8 - when for a defence of justification to
be upheld, it is not necessary to prove the truth of every
word in the statement said to be defamatory. What is
relevant is actually the truth of the imputation of the
overall statement.” (Emphasis is mine.)

[68] According to Mr. Murali, it is clearly provided in Order 78 rule

3(2) of the Rules of Court 2012 that the Defendant who raises
justification must plead in the defence:

(i.) particulars stating which of the words complained of he

alleges are statement of fact; and

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(ii.) particulars of the facts and matters he relies on in support

of the allegation that the words are true.

This has been made clear in Syed Husin Ali v. Syarikat

Perchetakan Utusan Melayu Berhad [1973] 2 MLJ 56 where
Mohamed Azmi J (later SCJ) held as follows:

“The defence has also sought to refer to certain statements

made by the plaintiff in a talk in Kelantan, and also to an
article written by him in a political magazine called
“Benteng”, and as well as to the fact that the plaintiff
belonged to a political party which allegedly did not
recognize the existence of Malaysia. I do not think these
matters are relevant having regard to the fact that the
defence has not pleaded justification, fair comment or
qualified privilege.”

[69] I have carefully reviewed the Defendant’s defence and hold that
it is fraught with ambiguity and undoubtedly fell short of the
mandatory requirement of the aforesaid Order 78 rule 3(2). The
salutary principle governing pleadings has been succinctly
expounded by James Foong FCJ in the Federal Court case of
RHB Bank Berhad v. Kwan Chew Holdings Sdn Bhd [2010] 2
AMR 590 as follows:

“In fact, the Court of Appeal itself has reiterated this in

Amanah Butler (M) Sdn Bhd v. Yike Chee Wah [1997] 2
CLJ 79 where Gopal Sri Ram JCA (as he then was) said:

“It is trite law that a party is bound by its pleadings”.

On this, we would like to add that it is not the duty of the

court to invent or create a cause of action or a defence
under the guise of doing justice for the parties lest it be

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accused of being biased towards one against the other. The

parties should know best as to what they want and it is not
for the court to pursue a cavalier approach to solving their
dispute by inventing or creating cause or causes of action
which were not pleaded in the first place. Such activism by
the court must be discouraged otherwise the court would
be accused of making laws rather than applying them to a
given set of facts.”

[70] That notwithstanding and in respect of first of the Impugned

Statements, I find that the Defendant failed to adduce any
credible evidence whatsoever to justify the conclusion he made
that the Plaintiffs in their respective capacities as Chief Minister
and Deputy Chief Minister (II) of the State of Penang had sent
the individuals whom the Defendant described as thugs to the
Concerned Citizens of the Indian Community Forum held on 30
November 2013. The Defendant only testified that he heard the
individual known as Weld Quay Thamby mentioned the Chief
Minister and the Defendant clarified under cross examination
that if anyone mentioned the Chief Minister, he would arrive at
the same conclusion in that the person was associated with the
Chief Minister. I find his explanation fanciful. In any event, the
Defendant did not call Ragindra a/l Sivasamy nicknamed Weld
Quay Thamby to confirm the Defendant’s conclusion. The
Defendant’s testimony in this respect is evidentially speaking
also inadmissible because of hearsay.

[71] Next as to the second of the Impugned Statements targeted at the

First Plaintiff, I find there is again not a shred of evidence led
by the Defendant to prove the truthfulness of his assertion that
the Chief Minister of Penang was actually bullying the citizens
into subservience.

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[72] In respect of the third of the Impugned Statements targeted at

the Second Plaintiff, the Defendant claimed that the Deputy
Chief Minister (II) was associated with Weld Quay Thamby. At
the Press Conference, the Defendant portrayed Weld Quay
Thamby as the leader of the thugs who disrupted the Forum
meeting as well as assaulted one of the participants of the
forum. The projection the Defendant made of Weld Quay
Thamby is hence that of a person of violent and criminal
disposition.

[73] It is paramount in the Defendant’s defence of justification that

the Defendant must prove Weld Quay Thamby is what the
Defendant alleged him to be, to wit: a man of violent and
criminal disposition. Ragindra a/l Sivasamy or Weld Quay
Thamby took offence to the Defendant’s insinuations that was
published in the Malaysiakini and initiated the Associated Libel
Suit against the Defendant and the body corporate which
operated Malaysiakini for defamation. The Associated Libel Suit
concluded in a consent judgment recorded on 29 March 2016. In
this regard, the Defendant testified as follows under re-
examination in this suit in respect of the settlement of the
Associated Libel Suit:

“I retracted the statement, the matter was settled. So,

there are many reasons other than the fact that I accepted
that what I said was defamatory, therefore I withdrew it.”

In other words, the defamatory statement made by the Defendant

against Weld Quay Thamby has been admitted by him to be
patently false. This is notwithstanding that the law also
presumes as such unless the Defendant proves otherwise. In Tun
Datuk Patinggi Haji Abdul Rahman Ya’kob v. Bre Sdn Bhd

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[1996] 1 MLJ 393 Richard Malanjum J (now CJ Sabah &

Sarawak) held as follows:

“There is no burden on a plaintiff to prove that a

defamatory statement is false. The law presumes that the
defamatory words are false.”

I am aware that the Defendant adduced evidence through ACP

Haji Nordin bin Haji Manan that Ragindran a/l Sivasamy or
Weld Quay Thamby was arrested on 12 February 2007 and
investigated under the Emergency Ordinance 1969. There was
however neither charges preferred nor any action taken against
him thereafter. In this regard, it can be not be concluded or even
presumed that he is a thug.

[74] In the premises, the Defendant failed to prove that Weld Quay
Thamby is indeed a thug. This must be proven before the
Defendant is further required to prove that the Second Plaintiff
is also associated with the Weld Quay Thamby to sustain the
defence of justification.

[75] By reason that the Defendant has failed in the first aspect, it is
strictly unnecessary to delve into the second aspect but I will
deal with it briefly. The evidence that was adduced by the
Defendant is merely several photographs that the Second
Plaintiff was photographed together with Weld Quay Thamby.
On top of that, the Defendant tried to extract an
acknowledgement from the First Plaintiff, albeit unsuccessfully,
that the Second Defendant was instrumental in selecting
Ragindra a/l Sivasamy nicknamed Weld Quay Thamby to be
conferred the Darjah Johan Negeri (DJN) award by the Tuan
Yang Terutama Yang Di-Pertua Negeri Pulau Pinang in 2015. As
testified by the First Plaintiff, the Defendant was transgressing

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into the Ruler’s prerogative of the Tuan Yang Terutama Yang

di-Pertua Negeri Pulau Pinang.

[76] I find that the so called evidence of the Defendant to be merely

postulations or conjectures without cogent proof to establish that
there was indeed close association between the Second Plaintiff
and Weld Quay Thamby. In the testimony of the Second
Plaintiff, he came to know Weld Quay Thamby 2 or 3 years after
winning the 2008 elections and the photographs depicted several
Indian community related events where they both attended. The
Defendant also relied on the testimony of his friend
Supramaniam a/l Muniandy that the Second Defendant were seen
together with Weld Quay Thamby but again that was based on
the same aforesaid several photographs produced in court. There
is nothing more to it and I so find and hold accordingly.

[77] In the circumstances, I find and hold that the Defendant has
failed to establish the defence of justification on the Impugned
Statements made.

[78] Next, I will deal with the defence of qualified privilege. The law
on qualified privilege is equally trite. In S. Pakianathan v. Jenni
Ibrahim [1988] 2 MLJ 173, Wan Hamzah SCJ held as follows:

“However, there are occasions upon which, on grounds of

public policy and convenience, a person may, without
incurring legal liability, make statements about another
which are defamatory and in fact untrue: Watt v. Longsdon
[1930] 1 KB 130. These occasions are called occasions of
qualified privilege. A communication made bona fide
upon any subject-matter in which the party
communicating has an interest, or in reference to which
he has a duty, is privileged, if made to a person having a
corresponding interest or duty although it contains a

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criminatory matter which, without this privilege, would

be slanderous and actionable: Harrison v. Bush [1885] 5
E & B 344;; 119 ER 509. The duty may be legal, social or
moral, and the person to whom the communication is made
must have a corresponding interest or duty to receive it.
The reciprocity is essential: Adam v. Ward [1917] AC 309
334…

The protection afforded by the law to a publication made

on an occasion of qualified privilege is not an absolute
protection but depends on the honesty of purpose of the
person who makes the publication. If he is malicious, that
is, if he uses the occasion for some other purpose than that
for which the law gives protection, he will not be able to
rely on the privilege. If the publication takes place under
circumstances which create a qualified privilege, in order
to succeed the plaintiff has to prove express malice on the
part of the defendant. Broadly speaking, express malice
means malice in the popular sense of or desire to injure
the person who is defamed…” (Emphasis is mine.)

[79] Mr. Murali submitted that the defence of qualified privilege

would not be available to the Defendant here who utilized the
Press Conference to spew slanderous venom plainly because the
element of reciprocity is absent. The Defendant has no duty
whatsoever, be it moral, social or legal to utter the Impugned
Statements against the holders of public office and in the same
vein, the members of the press or media have no corresponding
duty to receive such statements.

[80] Ms. Thilaga replied that the Defendant is a non partisan social
activist. He is a well qualified engineer and a former national
advisor of HINDRAF and the current chairman of a NGO known

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as the Pertubuhan Pembangunan Socio Ekonomi Golongan

Miskin, Malaysia. He is also the chairman and spokesman of the
Concerned Citizens of the Indian Community at the Forum to
deliberate on the underlying issue pertaining to the Batu
Lanchang crematorium where the incinerators were not
functioning for several months. The Batu Lanchang crematorium
is within the purview of the Hindu Endowment Board, a Federal
agency which is run by the State Government. At all material
times, the Second Plaintiff holds the office as chairman of the
Hindu Endowment Board. The Second Plaintiff had in this
respect actually acknowledged there were operational issues in
the crematorium that required trouble shooting when he made a
press statement published online by Free Malaysia Today on 14
August 2013 urging Hindu Penangites to stay patient until the
Hindu Endowment Board resolved the incinerator issues.

Consequently the Defendant did not call for the Press

Conference deliberately, wrongfully and maliciously. It was for
the purpose to highlight the attempt to stifle an initiative to
advance the issues connected to the Batu Lanchang crematorium
in public interest and concern to the general public. It was not to
deliver a hate speech against the Plaintiffs.

[81] It is not in dispute that the Defendant made a police report on 3

December 2013 after the pandemonium ensued at the Forum on
30 November 2013. The Defendant had the right as well as
arguably the duty to make his police report and he enjoyed
absolute privilege following the Federal Court case of Lee Yoke
Kam v. Chin Keat Seng [2013] 1 AMR 189 and again recently in
Dato’ Dr. Low Bin Tick v. Datuk Chong Tho Chin & Other
Appeals [2017] 8 CLJ 369.

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[82] However and just as in the case of Prem Anand Loganathan v.

Dhinagaran Jayabalan (supra), I find that the Defendant has no
further duty to ventilate his grievances and annoyance to the
media or press vide a press conference. Furthermore the media
and press also do not have the reciprocal duty to be in the Press
Conference too. In other words, the Press Conference wasn’t
made on an occasion of qualified privilege. It must not be
confused that the Press Conference unlike the Forum was not to
address the public interest issue of the Batu Lanchang
crematorium but to the pandemonium that ensued at the Forum.

[83] Even if the Defendant may avail himself to qualified privilege,

he is nonetheless subject to responsible journalism as enunciated
by the Federal Court in of Syarikat Bekalan Air Selangor Bhd v.
Tony Pua Kiam Wee [2015] 8 CLJ 477. In that case, Azahar
Mohamed FCJ held as follows:

“[22] As a matter of broad general principle, a privileged

occasion is one on which the privileged person is entitled
or permitted to do or utter something which no one who is
not within the privilege is entitled or permitted to do on
that occasion, without incurring the liability for
defamation. The defence of qualified privilege is grounded
on public policy and convenience that the law will, on
occasion, allow an individual to make statements which
are defamatory and untrue of another without incurring
legal liability (see for example Hasnul Abdul Hadi v. Bulat
Mohammed & Anor [1977] 1 LNS 33; [1978] 1 MLJ 75).

[33] In our view, the public interest defence should by no

means synonymous with journalists or media publications.
On the ground of public interest, there is a sufficient

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basis it should be in the same way extended to anyone

who publishes or discloses material of public interest in
any medium to assist the public better comprehend and
make an informed decision on matters of public interest
that affects their lives. To safeguard the extension of this
privilege is not abused, as a necessary balance, it is the
duty of the court to robustly ensure that anyone who is
accorded with the privilege meet the test of responsible
journalism, about which more will be said later in this
judgment. This, in our view, underpins the significance of
protecting the right of freedom of expression on public
interest matter and at the same time providing adequate
protection for reputation. Freedom of expression is not
absolute. Indeed, freedom of expression and the
responsibilities that comes with it is enshrined in art. 10 of
the Federal Constitution. We should like to emphasise here
that the Reynolds privilege defence places a considerable
role in the hands of judges to deliberate fairly and come to
a just decision with utmost care whether the impugned
publication amount to an occasion of privilege.

[34] The Reynolds privilege defence is predicated on

public interest and “responsible journalism”. In the
context of the present case, the Reynolds privilege
defence required the defendant first, to establish that the
impugned words were uttered on a matter of public
interest and the public had a corresponding interest in
receiving the same. Once that was established, the court
must consider whether the defendant acted reasonably in
publishing the impugned words. This second test has been
described as the test of “responsible journalism” (see
Reynolds v. Times Newspapers Ltd (supra) and Jameel And

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Another v. Wall Street Journal Europe Sprl (supra)).

Although the test refers to “journalism”, it is merely a
convenient description because as we have decided earlier
the Reynolds privilege defence is in no way limited to
journalistic publications. If the defendant passed the test
of responsible journalism, the issue would be determined
in his favour. Lord Nicholls in Reynolds v. Times
Newspapers Ltd (supra) sets out a number of factors to be
taken into account in determining the issue of responsible
journalism. These factors, which are not exhaustive, are,
inter alia, as follows:

(1) The seriousness of the allegation. The more serious the

charge, the more the public is misinformed and the
individual harmed, if the allegation is not true.

(2) The nature of the information, and the extent to which

the subject matter is a matter of public concern.

(3) The source of the information. Some informants have

no direct knowledge of the events. Some have their own
axes to grind, or are being paid for their stories.

(4) The steps taken to verify the information.

(5) The status of the information. The allegation may have

already been the subject of an investigation, which
commands respect.

(6) The urgency of the matter. News is often a perishable

commodity.

(7) Whether comment was sought from the plaintiff. He

may have information others do not possess or have not

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disclosed. An approach to the plaintiff will not always be

necessary.

(8) Whether the article contained the gist of the plaintiff’s

side of the story.

(9) The tone of the article. A newspaper can raise queries

or call for an investigation. It need not adopt allegations
as statements of fact.

(10) The circumstances of the publication, including the

timing.” (Emphasis is mine.)

[84] From the evidence adduced before me, I am not satisfied that the
Defendant met the threshold requirement of responsible
journalism. In this regard, the Defendant failed to take steps to
investigate and verify the allegations particularly as to whether
the Plaintiffs sent thugs to disrupt the Forum. If the
investigation had been surrendered to the police, then the
Defendant must in my view await the results of the police
investigation before making any further public statement on it.
The Defendant instead convened the Press Conference hurriedly
the day after the police report was lodged.

Moreover, the Defendant didn’t even bother to verify the

information with the Plaintiffs to know their side of the story.

The Defendant cannot conclude that the thugs were sent by the
Plaintiffs simply because Weld Quay Thamby allegedly
mentioned the name of the Chief Minister. As for the alleged
association between the Second Defendant and Weld Quay
Thamby, it must not be forgotten that political figures such as
the Plaintiffs by the nature of their public office have to reach
out to members of society and maintain a healthy interaction

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with the community. Hence it is not unusual for the Second

Plaintiff to be surrounded by commoners from all walks of life
including Weld Quay Thamby.

[85] In the circumstances, I find and hold that the Defendant has also
failed to establish the defence of qualified privilege.

[86] Finally as to the defence of fair comment, the law on fair

comment is also trite. In the Court of Appeal case of Dato Seri
Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia
Bhd & Anor [2014] 3 CLJ 560, Abang Iskandar JCA held:

“[50] The law on the defence of fair comment is that if a

defendant can prove that the defamatory statement is an
expression of opinion on a matter of public interest and
not a statement of fact, he or she can rely on the defence of
fair comment. The courts have said that whenever a matter
is such as to affect people at large, so that they may be
legitimately interested in, or concerned at, what is going
on or what may happen to them or to others, then it is a
matter of public interest on which everyone is entitled to
make fair comment.

[51] The comment must be based on true facts which are

either contained in the publication or are sufficiently
referred to. It is for the defendant to prove that the
underlying facts are true. If he or she is unable to do so,
then the defence will fail. As with justification, the
defendant does not to have to prove the truth of every fact
provided the comment was fair in relation to those facts
which are proved. However, fair in this context, does not
mean reasonable, but rather, it signifies the absence of
malice. The views expressed can be exaggerated, obstinate
or prejudiced, provided they are honestly held. If the

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claimant can show that the publication was made

maliciously, the defence of fair comment will not succeed.”

The ingredients of the defence of fair comment have been

summarized by Lim Beng Choon J as follows in Institute of
Commercial Management United Kingdom v. New Straits Times
Press (Malaysia) Bhd [1993] 1 MLJ 408:

“There is no doubt that it is a defence to an action of libel

that the words complained of are fair comment on a matter
of public interest. The scope of the defence of fair
comment is well-illustrated by the following observation of
Fletcher Moulton LJ in Hunt v. Star Newspaper Co Ltd 10:

The law as to fair comment, so far as is material to the

present case, stands as follows: In the first place, comment
in order to be justifiable as fair comment must appear as
comment and must not be so mixed up with the facts that
the reader cannot distinguish between what is report and
what is comment: see Andrews v. Chapman. The justice of
this rule is obvious. If the facts are stated separately and
the comment appears as an inference drawn from those
facts, any injustice that it might do will be to some extent
negatived by the reader seeing the grounds upon which the
unfavourable inference is based. But if fact and comment
be intermingled so that it is not reasonably clear what
portion purports to be inference, he will naturally suppose
that the injurious statements are based on adequate
grounds known to the writer though not necessarily set out
by him. In the one case the insufficiency of the facts to
support the inference will lead fair-minded men to reject
the inference. In the other case it merely points to the
existence of extrinsic facts which the writer considers to

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warrant the language he uses. In this relation I must

express my disagreement with the view apparently taken by
the Court of Queen’s Bench in Ireland in the case of
Lefroy v. Burnside, where the imputation was that the
plaintiffs dishonestly and corruptly supplied to a
newspaper certain information. The court treated the
qualifications ‘dishonestly’ or ‘corruptly’ as clearly
comment. In my opinion they are not comment, but
constitute allegations of fact. It would have startled a
pleader of the old school if he had been told that, in
alleging that the defendant ‘fraudulently represented’, he
was probably making the most important allegation of fact
in the whole case. Any matter, therefore, which does not
indicate with a reasonable clearness that it purports to be
comment, and not statement of fact, cannot be protected by
the plea of fair comment. In the next place, in order to give
room for the plea of fair comment the facts must be truly
stated. If the facts upon which the comment purports to be
made do not exist the foundation of the plea fails. This has
been so frequently laid down authoritatively that I do not
need to dwell further upon it: see, for instance, the
direction given by Kennedy J to the injury in Joynt v.
Cycle Trade Publishing Co, which has been frequently
approved of by the courts.

Finally, comment must not convey imputations of an evil

sort except so far as the facts truly stated warrant the
imputation.

The observation of Fletcher Moulton LJ was cited and

explained by Lord Porter in Kemsley v. Foot & Ors 11 at
pp 506-507. From the above observation, it can be seen

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that to succeed in a defence of fair comment, the

defendant must prove:

(i) the words are comment and not a statement of facts;

(ii) there is a basis of facts which are substantially true

or which the comment is made;

(iii) the comment is on matter of public interest; and

(iv) the comment is made honestly and without malice.”

(Emphasis is mine.)

[87] Mr. Murali submitted that the Impugned Statements uttered by

the Defendant are assertions of fact, and in this case, distorted
facts but not statements of opinion on facts truly stated. In
addition and since the Defendant has admitted that whatever
words spoken by him against Weld Quay Thamby in the Press
Conference was indeed defamatory as well as on the basis of
presumption of falsity, the Defendant must be taken to know
that there is no truth to his allegation of thug against Weld Quay
Thamby. In the premises the defence of fair comment must
necessarily fail.

[88] I noted Hashim Yusoff JCA (later FCJ) held as follows in the
Court of Appeal case of Bre Sdn Bhd v. Tun Datuk Patinggi Haji
Abdul Rahman Ya’kub [2005] 3 AMR 1:

“We agree with the learned judge’s findings as it is settled

law that a comment is a statement of opinion on facts truly
stated. A libellous statement of fact is not a comment or
criticism on anything. (see: Lee Kuan Yew v. JB
Jeyaretnam [1979] 1 MLJ 281)”

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I have reviewed the Impugned Statements and I find that they

are assertions of fact by the style and emphatic manner in which
the Defendant uttered them to the press and media at the Press
Conference. They were furthermore not qualified subject to
certain factual background and basis.

[89] That aside and even assuming that the assertions are comments,
I am satisfied that the factual basis upon which the comments
were based is false because there was no credible foundation
advanced whatsoever by the Defendant that Weld Quay Thamby
is a thug as alleged by him.

[90] As to the matter of public interest, I am doubtful too by reason

that I find the Press Conference was convened predominantly in
the personal interest of the Defendant rather than in the public
interest. I reiterate that must be no confusion that the Press
Conference unlike the Forum is not to address the public interest
issue of the Batu Lanchang crematorium but to the
pandemonium that ensued at the Forum.

[91] Consequently by reason that the three crucial elements of fair

comment are not made out, I find that the Defendant has failed
to prove the defence of fair comment as well.

[92] I move now to address the issue of malice which would negative
the defence of qualified privilege as well as fair comment
assuming that they have been successfully made out by the
Defendant. Again in S. Pakianathan v. Jenni Ibrahim [1988] 2
MLJ 173, Wan Hamzah SCJ held as follows:

“To destroy the privilege, the desire to injure must be the

dominant motive for the defamatory publication.
Knowledge that it will have that effect is not enough if the
defendant is nevertheless acting in accordance with a

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sense of duty or in bona fide protection of his own

legitimate interests. The mere proof that the words are
false is not evidence of malice, but proof that the
defendant knew that the statement was false or that he had
no genuine belief in its truth when he made it would
usually be conclusive evidence of malice. If the defendant
publishes untrue defamatory matter recklessly without
considering whether it be true or not, he is treated as if he
knew it to be false. In ordinary cases, what is required on
the part of the defamer to entitle him to the protection of
the privilege is honest belief in the truth of what he
published. But if he was moved by hatred or a desire to
injure and used the occasion for that purpose, the
publication would be maliciously made even though he
believed the defamatory statement to be true. Where the
defendant purposely abstained from inquiring into the
facts or from availing himself of means of information
which lay at hand when the slightest inquiry would have
shown the true situation, or where he deliberately stopped
short in his inquiries in order not to ascertain the truth,
malice may rightly be inferred: Lee v. Ritchie [1904] 6 F
(Ct of Sess) 642.” (Emphasis is mine.)

[93] In this respect, I asked the Defendant several questions in the

exercise of my power under s. 165 of the Evidence Act 1950 at
the trial. The excerpts of the questions and answers are as
follows:

“Q. No.1 is that you have made the police report three
days after the incident based on your belief that the
Plaintiffs sent thugs over. Now, my first question is that
why is there the need to hold a press conference to
publicise that you have made a police report?

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A. The need arises because if there is substance to what

I have stated in my police report, it is of public interest.
And I felt the need to let the public know that we had a
situation like what has happened in the Batu Lanchang
crematorium which I had called a meeting to correct it but
it was disrupted and now we want the police to investigate
it. We want to make sure that this matter got the attention
that it needed. You see many issues that affect our lives
don’t elicit interest on the part of the people until they are
informed. And this is a matter that has been going on and
it’s been you know brewing and we wanted to make sure
that the matter was addressed, the matter of the
crematorium, the matter of the disruption and our rights
as citizens. So, that is the reason Yang Arif.

Q. Just to follow up from there. If that being the case,

why can’t you wait until the investigation is over and then
only hold the press conference?

A. Why it so sudden, why so quickly, that’s why Yang

Arif, we discussed within our group and we said okay let’s
get the matter the attention that it requires and generally
if we understand how things work in our society, when
people who in position of authority are under pressure,
they tend to move. Otherwise we get reasons, excuses of
why things are not moving but they move when there is
public attention to this issue.”

[94] From the Defendant’s answers, it can be seen that he wasn’t sure
that the Plaintiffs were involved in causing the pandemonium
that disrupted the Forum. He needed the police to investigate it
and that’s fine as he has the right to do so by the making of the
police report. He could alternatively enquire directly from the

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Plaintiffs but he refrained from so doing for reasons best known

to him. The Defendant should ideally then have waited for the
investigation to be completed before convening the Press
Conference. Otherwise, he should only make neutral statements
at the Press Conference by only alluding to the disruption that
occurred at the Forum and a police investigation is underway
without mentioning the identity of personalities allegedly or
believed by him to be involved.

[95] However it is apparent that the Defendant was over zealous and
reckless. He got carried away uttering unfounded defamatory
statements against the Plaintiffs as well as Weld Quay Thamby
that were still being investigated. I therefore find the
Defendant’s actions malicious with the intention to injure the
Plaintiffs. On top of that, it is plain that the Defendant’s motive
in convening the Press Conference is furthermore to pressurize
the police to act swiftly in the investigation, if not also the
Plaintiffs to act swiftly in respect of the Batu Lanchang
crematorium to the satisfaction of the Defendant. I find that
malicious too.

[96] In the circumstances, I also find malice on the part of the

Defendant that would have negatived the defences of qualified
privilege and fair comment of the Defendant if established.

[97] Based on my findings, I hold that the Defendant has indeed

defamed the Plaintiffs. Besides the remedy of injunctive relief,
the other remedy is of course damages. The law on
compensatory damages including aggravated and exemplary
damages has been comprehensively set out and explained by
Gopal Sri Ram JCA (later FCJ) in the Court of Appeal case of
Chin Choon @ Chin Tee Fut v. Chua Jui Meng [2005] 3 MLJ
494 as follows:

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“5. In Defamation Law, Procedure & Practice by Price

& Duodu (3 rd ed, para 20-04 at p 208) the learned authors
set out the several factors that a court must take into
account in assessing compensatory damages. This is what
they say:

The amount of damages awarded in respect of vindication

and injury to reputation and feelings depends on a
number of factors:

(1) The gravity of the allegation.

(2) The size and influence of the circulation.

(3) The effect of the publication

(4) The extent and nature of the claimant’s reputation.

(5) The behaviour of the defendant.

(6) The behaviour of the claimant.

This list is most helpful. But it must be borne in mind

that this is not by any means exhaustive of the matters
which the court may take into account when making an
assessment.

9. On the award of aggravated damages learned

counsel for the respondent referred us to Gatley on Libel
& Slander (9 th ed, para 32-49 at p 826) which reads:

However, the defendant is not confined to evidence of

malice when seeking aggravated damages. Thus the fact
that the defendant has pleaded justification, and

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attempted at the trial to establish the plea by persisting in

the charge, can be taken into account by the jury in
assessing damages if they find that the plea is not
sustained. A fortiori if the defendant does not attempt to
establish the plea at the trial but does not abandon it.
Indeed it has been held that the mere fact that the
defendant has placed a plea of justification on the record
is a matter the jury can consider when estimating
damages, even though the defendant withdraws the plea
at trial. It has been doubted whether mere failure to make
an apology can ever justify aggravation of damages. But
the weight of recent authority is to the effect that the
absence of an apology can, depending on the facts of the
case, increase injury to feelings.

12. With respect, we do not think it a fair interpretation

of Lord Devlin’s speech when read as a whole that he
intended that grant of punitive or exemplary damages to
be limited only to cases of monetary profit. That is too
narrow an interpretation. In our judgment, any form of
advantage gained by a defendant in a defamation case
suffices. It need not produce an immediate profit in
money terms as happened in Dato Musa bin Hitam v. SH
Alatas & Ors. It may produce an immediate non-
pecuniary advantage that may translate itself into a
monetary reward sometime later. Take this very case. The
appellant by his tortuous conduct wanted to impress
members of the Chinese community that he was an
advocate who feared no one, not even a deputy minister of
the government when it came to advancing his client’s
cause. Reasonable persons who read his statement may

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well decide to retain his services because of the

impression created by him. So, he stood to gain from what
he did. This is accordingly a suitable case to make an
award of exemplary damages. We agree with the approach
adopted by Richard Malanjum J in Chong Siew Chiang v.
Chua Ching Geh & Anor [1995] 1 CLJ 173; [1995] 1 MLJ
551, where he suggested that the benefit obtained by a
defendant who libels a plaintiff may be financial or
otherwise.

13. There is one matter of some importance that this case

has raised. It appears to be the respondent’s argument that
separate awards for aggravated and exemplary damages
should be made. That is what the High Court did. With
respect, we disagree with this approach. For many years it
was thought that in all cases of tort global awards should
be made, including in claims for personal injuries.
However, only in respect of claims for personal injuries,
when the courts started awarding interest at different rates
on the different heads of damages, it became necessary for
courts to make separate awards for pain and suffering and
loss of amenities, actual loss of income, future loss and
special damages. But in defamation cases it is never the
practice to award interest on each separate head of
damages. Interest is merely granted on the single award.
In our judgment, we should, in defamation cases,
maintain the age old practice of making a global award
in order to limit the size of awards. Otherwise we will
have runaway damages once again.” (Emphasis is mine.)

[98] Based on my findings where I have found that the defence of

justification that was strenuously put up by the Defendant failed
and also malice on the part of the Defendant to gain a personal

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advantage, I hold that this is a case that justified the award of

aggravated damages in addition to that of general damages. In
the appeal of the Libel Suit, the Court of Appeal awarded
damages of a global amount of RM200,000.00 to each of the
Plaintiffs. I believe the Court of Appeal would have been taken
into account the actual nationwide publication of the article by
the first respondent therein. However taking judicial notice and
consideration that the Plaintiffs have been paid by the
respondents therein already (see
www.themalaymailonline.com/malaysia/article/nst-to-pay-guan-
eng-ramasamy-rm450000-after-dropping-defamation-appeal),
the Defendant’s advanced age and his long involvement in
public interest crusades as well as the actual limited publication
of the Defendant’s utterances to several members of the press,
media and others present only at the Press Conference, I hold
that the fair and reasonable global amount of damages payable
by the Defendant is RM50,000.00 to each of the Plaintiffs. If the
Defendant had instead conceded liability and profusely
apologized to the Plaintiffs, I would have considered the award
of perhaps only nominal damages.

Conclusion

[99] For the foregoing reasons, I find and hold that the Plaintiffs
have a meritorious case against the Defendant. Contrary to the
bare and outrageous suggestion of the Defendant, I do not find
that the Plaintiffs harboured the intention to pursue their claim
against the Defendant not because his utterances are defamatory
but to victimize and selectively prosecute the Defendant because
the issues advanced by him in his role as social activist
including criticism and comments against the administration of
the State of Penang may not gel well with the Plaintiffs.

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[100] I am mindful that in the current time and era where public
perception to accountability, transparency and good governance
in respect of people holding public office or position become
increasingly a subject matter of critical public scrutiny.
Nonetheless, public scrutiny has its bounds and limits and I
steadfastly hold that these critics do not have the carte blanche
to smear the reputation of public office holders in the guise of
public scrutiny. In such an instance, the Courts will intercede
accordingly.

[101] Consequently, I enter judgment for the Plaintiffs against the

Defendant in terms of prayers (a) for the sum of RM50,000.00
each, (b) and (c) of paragraph 16 of the amended statement of
claim and costs of RM 25,000.00 collectively.

Dated: 29 NOVEMBER 2017

(LIM CHONG FONG)

Judge
High Court Georgetown Penang

COUNSEL:

For the plaintiffs - Simon Murali; Simon Murali & Co

For the defendant - S Thilaga & S Yokinee; S Thilaga

Case(s) referred to:

Datuk Haji Shabudin Bin Yahaya & 3 Ors v. Dr Afif Bin Bahardin
[2016] 1 LNS 291

Prem Anand Loganathan v. Dhinagaran Jayabalan [2016] 1 LNS 1562

69
[2017] 1 LNS 2211 Legal Network Series

Hanafi bin Mat Hassan v. Public Prosecutor [2006] 4 MLJ 134

JB Jeyaretnam v. Goh Chok Tong [1985] 1 MLJ 335

Pardeep Kumar a/l Om Parkash Sharma v. Abdullah Sani Bin Hashim

[2009] 2 MLJ 685

All Malaysian Estates Staff Union v. Rajesegaran [2006] 5 AMR 585

Utusan Melayu (Malaysia) Berhad v. Dato' Sri Diraja Haji Adnan bin
Haji Yaakob [2016] MLJU 302

Government of the State of Sarawak & Anor v. Chong Chieng Jen

[2016] 5 CLJ 169

Derbyshire County Council v. Times Newspapers Ltd [1992] 3 All ER

65

Jeyaretnam Joshua Benjamin v. Lee Kuan Yew & Anor [1992] 2 SLR
310

Philip Lindsay Brook v. Mirza Mohamed Tariq Beg Mirza HH Beg

[2016] 1 LNS 1061

Zaheda Mohd Rafik v. Noor Azman Azemi [2017] 1 LNS 529

Lee Kuan Yew v. Davies & Ors [1990] 1 MLJ 390

Lee Kuan Yew v. Devan Nair [1990] 3 MLJ 452

Lee Kuan Yew v. Chin Vui Khen & Anor [1991] 3 MLJ 494

Syed Husin Ali v. Syarikat Perchetakan Utusan Melayu Berhad [1973]

2 MLJ 56

Joceline Tan Poh Choo v. Dato' V. Muthusamy [2003] 5 AMR 195

Ayob Saud v. T.S. Sambathamurti [1989] 1 CLJ 321

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[2017] 1 LNS 2211 Legal Network Series

Utusan Melayu (Malaysia) Bhd v. Othman Hj Omar [2017] 2 CLJ 413

Chok Foo Choo @ Chok Kee Lian v. The China Press Bhd [1999] 1
MLJ 371

Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank

Bhd [1995] 3 MLJ 331

Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995]
3 CLJ 783

Letchumanan Gopal v. Pacific Orient & Co Sdn Bhd [2011] 5 CLJ

866

Dato Sivananthan Shanmugam v. Artisan Fokus Sdn Bhd [2015] 2

CLJ 1062

Hee Awa & Ors v. Syed Muhammad Sazalay & Anor [1988] 1 MLJ
300

Chan Yee v. Chan Yoke Fong [1990] 1 CLJ 36

Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015]
8 CLJ 1

S. Pakianathan v. Jenni Ibrahim [1988] 2 MLJ 173

Dato Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen

Malaysia Bhd & Anor [2014] 3 CLJ 560

Chong Swee Huat & Anor v. Lim Shain Ghee t/a L & G Consultants &
Education Service [2009] 3 MLJ 665

RHB Bank Berhad v. Kwan Chew Holdings Sdn Bhd [2010] 2 AMR
590

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[2017] 1 LNS 2211 Legal Network Series

Tun Datuk Patinggi Haji Abdul Rahman Ya'kob v. Bre Sdn Bhd [1996]
1 MLJ 393

Lee Yoke Kam v. Chin Keat Seng [2013] 1 AMR 189

Dato' Dr. Low Bin Tick v. Datuk Chong Tho Chin & Other Appeals
[2017] 8 CLJ 369

Syarikat Bekalan Air Selangor Bhd v. Tony Pua Kiam Wee [2015] 8
CLJ 477

Institute of Commercial Management United Kingdom v. New Straits

Times Press (Malaysia) Bhd [1993] 1 MLJ 408

Bre Sdn Bhd v. Tun Datuk Patinggi Haji Abdul Rahman Ya'kub [2005]
3 AMR 1

Chin Choon @ Chin Tee Fut v. Chua Jui Meng [2005] 3 MLJ 494

Legislation referred to:

Evidence Act 1950, ss. 2, 65(1)(c), 73A(2)(b), 90A(6), 165

Defamation Act 1957, s. 5

Rules of Court 2012, O. 14A, O. 15 r. 6(2)(b), O. 78 r. 3(2)

Federal Constitution, art. 8

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