Raja Syahrir Bin Abu Bakar v Manjeet Singh Dhillon (W-02(NCVC)(W)-1640-10/2015)

1.

UTUSAN MELAYU (M) BERHAD (7170-V) … APPELLANTS [In the Matter of the High Court of Malaya at Kuala Lumpur Originating Summons No: 23 NCVC-90-09-2011 Between Manjeet Singh Dhillon … Plaintiff

And

Gobalakrishnan A/L Nagapan

Raja Syahrir Bin Abu Bakar

Utusan Melayu (M) Berhad (7170-V) Sistem Televisyen Malaysia Berhad (T-106645) … Defendants [heard together with] CIVIL APPEAL NO: W-02(NCVC)(W)-1679-10/2015 2 … APPELLANT SISTEM TELEVISYEN MALAYSIA BERHAD (T-106645) [In the Matter of the High Court of Malaya at Kuala Lumpur Originating Summons No: 23NCVC-90-09-2011 Between Manjeet Singh Dhillon … Plaintiff And

Gobalakrishnan A/L Nagapan

Raja Syahrir Bin Abu Bakar

Utusan Melayu (M) Berhad (7170-V)

Sistem Televisyen Malaysia Berhad (T-106645) … Defendants [heard together with] CIVIL APPEAL NO: W-02(NCVC)(W)-1742-10/2015 GOBALAKRISHNAN A/L NAGAPAN … APPELLANT 3 [In the Matter of the High Court of Malaya at Kuala Lumpur Originating Summons No: 23 NCVC-90-09-2011 Between GOBALAKRISHNAN A/L NAGAPAN … Plaintiff And MANJEET SINGH … Defendant] CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] These three appeals arose out of a single case in the Court below: i. Civil Appeal No. W-02(NCVC)(W)-1640-10/2015 ii. Civil Appeal No. W-02(NCVC)(W)-1679-10/2015 iii. Civil Appeal No. W-02(NCVC)(W)-1742-10/2015 4 [2] The appellant in the 2nd appeal, Civil Appeal No. W- 02(NCVC)(W)-1679-10/2015 was the plaintiff who sued four defendants vide High Court Civil Suit No. 23NCVC-90-09-2011 for damages based on the tort of defamation. His claim was allowed against all the defendants except the 3rd defendant. Being dissatisfied, the plaintiff has appealed. [3] The 2nd and 3rd defendants appealed vide the first of the three appeals, that is, Civil Appeal No. W-02(NCVC)(W)-1640-10/2015. The 1st defendant too, has appealed and his appeal is the third of the three appeals, that is, Civil Appeal No. W-02(NCVC)(W)-1742-10/2015. [4] We heard and considered both oral and written submissions from all parties together with the records of appeal and made the following decision, unanimously: i. Civil Appeal No. W-02(NCVC)(W)-1742-10/2015 was dismissed with costs; the decision of the High Court in respect of the 1st defendant was affirmed; ii. Civil Appeal No. W-02(NCVC)(W)-1640-10/2015 was also dismissed with costs; the decision of the High Court in respect of the 2nd and 3rd defendants was affirmed; iii. Civil Appeal No. W-02(NCVC)(W)-1679-10/2015 was allowed with costs. The decision of the High Court in respect of the 4th defendant is set aside. The plaintiff’s claim was found proved and thereby allowed with an order that the 4th defendant is to pay the plaintiff the sum of RM200,000.00 as 5 general damages together with interest at the rate of 5% per annum from the date of judgment to the date of realization. Background facts [5] The facts have been well set out by the learned Judge in the grounds of judgment. We will only set out what is required for a better appreciation of the issues raised in these appeals. For that purpose, we will address the parties as they were in the first instance. [6] The plaintiff was, at all material times, and still is, an advocate and solicitor of the High Court of Malaya. The 1st defendant was at the material time, a Member of Parliament for the constituency of Padang Serai. The 2nd defendant is a journalist with the 3rd defendant, the proprietor, printer and publisher of one of the national dailies, Utusan Malaysia. The 2nd defendant writes for the “Dalam Negeri” column of Utusan Malaysia. This column covers news which are of public interest and which affect the internal and external relations and security of the country. The 4th defendant is television broadcaster and owner of TV3, a television network. [7] The plaintiff’s case relates to what supposedly happened at a trial before the High Court at Shah Alam of four men accused of the murder of a prominent businesswoman in the local cosmetics industry named Sosilawati bt Lawlya, and three of her companions [Sosilawati murder trial]. The plaintiff was the lead counsel for one of the accused. 6 [8] In the proceedings of the afternoon of 16.8.2011, the plaintiff and another counsel cross-examined two police personnel on allegations of abuse and torture of the accused persons, asking questions on how the police conduct their interrogations and investigations, and on the issue of use of violence. The 4th defendant’s journalist who was in Court at the relevant time and covering the proceedings, filed a report of the account in Court. [9] In the afternoon of 16.8.2011 at the lobby of Parliament, the 1st defendant gave an interview to the media where he remarked on the plaintiff’s earlier cross examination of the police personnel in the Sosilawati murder trial. The 1st defendant then telephoned the 3rd and 4th defendants offering his views on the matter. [10] The 3rd defendant accepted and the 2nd defendant was assigned to interview the 1st defendant. The interview took place over a telephone conversation at around 6.00 p.m. of the same day. Following the telephone interview, the 2nd defendant wrote an article entitled “Manjeet selalu burukkan kerajaan” [“impugned article”]. This impugned article was published in the 3rd defendant’s Utusan Malaysia on 17.8.2011, in the Dalam Negeri column at page 8; and in the 3rd defendant’s Utusan Malaysia online version, also on 17.8.2011 [see exhibits P4 and P6]. [11] The 4th defendant similarly accepted the 1st defendant’s offer. A broadcast journalist was assigned to return the 1st defendant’s call. The 1st defendant gave a statement over the phone which was recorded by the 4th defendant. A clip of the murder trial as reported by its journalist and the telephone interview with the 1st defendant were then aired that 7 same evening on the 4th defendant’s prime time news called ‘Bulletin Utama’. Both the transcript and the audio visual recording of the broadcast on 16.8.2011 were exhibited as P5. A photograph of the plaintiff with the caption “Di-Selar” across the photo was displayed during the broadcast. All this formed “the impugned broadcast”. [12] The plaintiff found both the impugned article and the impugned broadcast and the audio video recording to be defamatory. He then sued the four defendants. [13] At paragraph 8 of his Statement of Claim, the plaintiff alleged that:

The publication of the First Defendant’s defamatory comments by the Third Defendant at page 8 of the ‘Dalam Negeri’ section of the Third Defendant’s newspaper and their extrapolation of these comments are reproduced below: Particulars of Publication of Defamatory Material Ikut rentak pembangkang, fitnah terhadap polis, mahkamah – Gobalakrishnan Manjeet selalu burukkan kerajaan Kuala Lumpur 16 Ogos – Peguambela suspek kes pembunuhan Datuk Sosilawati Lawiya, iaitu Manjeet Singh Dhillon yang mewakili tertuduh pertama, N. Pathmanabhan didakwa sentiasa cuba memburukkan imej institusi kerajaan demi kepentingan politik pembangkang. 8 Ahli Parlimen Padang Serai, N. Gobalakrishnan berkata, ini kerana Manjeet yang juga peguambela Datuk Seri Anwar Ibrahim dalam kes liwat pemimpin pembangkang itu kini semakin terikut-ikut dengan rentak pembangkang dalam membuat fitnah terhadap institusi seperti polis dan mahkamah. “Manjeet ini merupakan senjata Anwar dalam melancarkan serangan ke atas institusi awam seperti mahkamah dan polis supaya kedua-dua entity dibenci rakyat. Selain itu, taktik kotor Anwar yang digerakkan melalui Manjeet juga bertujuan menunjukkan institusi-institusi awam itu kononnya kini berada di bawah telunjuk Barisan Nasional (BN),” katanya ketika dihubungi di sini hari ini. Beliau mengulas tindakan Manjeet Singh yang beberapa kali meminta mahkamah mengenakan tindakan menghina mahkamah ke atas pihak pendakwaan kes pembunuhan tersebut. Selain itu Manjeet yang juga berada dalam barisan pembelaan Anwar dalam kes liwat Penasihat Parti Keadilan Rakyat (PKR), turut melakukan permintaan-permintaan yang cuba menunjukkan kelemahan institusi di dalam Negara. [14] The plaintiff alleged at paragraph 9 that:

By the said words, the First, Second and Third Defendants meant and were understood to mean, in the natural and ordinary meaning of 9 the words so used, that the Plaintiff is a person who is in the habit of utilizing underhand tactics to continuously demean the institutions of government, in particular the judicial system and the police force of the behest of the opposition leader Datuk Seri Anwar Ibrahim with the sole purpose of enticing public hatred against these institutions.

Furthermore and in addition, the allegations made as aforesaid were designed to impute impropriety on the part of the Plaintiff by falsely and maliciously accusing the Plaintiff of the following:

10.1 That the Plaintiff is predisposed to constantly making attempts to tarnish the image of the institution of government for the sake of opposition politics.

10.2 That the Plaintiff represents Datuk Seri Anwar Ibrahim in the current sodomy trial and has been instrumental in defaming the institutions such as those of the police and the judiciary at the behest of the opposition leader.

10.3 That the Plaintiff is Datuk Seri Anwar Ibrahim’s weapon in launching maximum attacks against public institutions such as the judiciary and the police designed to create public hatred against these two entities.

10.4 That the Plaintiff is responsible for the mobilization of Datuk Seri Anwar Ibrahim’s ‘dirty tactics’ with the purpose of showing that the public institutions referred to are supposedly under the thumb of the Barisan Nasional.

10.5 That the Plaintiff’s conduct in the ongoing trial involving Datuk N. Pathmanabhan is designed to show the weaknesses of national institutions. 10 [15] Specifically against the 4th defendant, the plaintiff alleged at paragraph 11 that “a substantial part of the entire interview with the first defendant was published by the Fourth Defendant by way of public broadcast on the TV3 news channel at approximately 8.20 p.m. on the 16.08.2011 and was potentially viewed by at least every household in Malaysia”. The plaintiff further alleged that the impugned broadcast:

11.A. … contained a summary of events which had occurred that morning in the ongoing Sosilawati murder trial at the Shah Alam High Court and included a commentary by the Fourth Defendant followed by a telephonic interview with the First Defendant. PARTICULARS OF BROADCAST CONTENT COMMENTARY “Sementara itu, hujah Manjeet Singh Dhillon yang mengatakan polis bertindak keras terhadap tertuduh - diselar Ahli Parlimen Padang Serai, N. Gobalakrishnan. Beliau menyifatkan hujah berkenaan, menampakkan usaha peguam itu dalam campur tangan bidang kuasa kepolisan. Pada masa yang sama, kenyataan itu dijangka diambil peluang oleh pembangkang untuk memanipulasi isu terbabit demi kepentingan politik mereka.” 11 Telephonic Interview with First Defendant “Dan ini adalah untuk menjauhkan polis dari membuat kerja mereka yang sebenarnya, saya nampak ini dari dulu lagi dan ini akan memberi rangsangan mereka yang mahu serang polis misalnya. Tengok ramai di kalangan pembangkang berani serang kerana polis pun terikat dan tertakluk kepada undang-undang.” Further Commentary “Pihak polis katanya, harus dihormati dan diberi kebebasan dalam menjalankan tugasan tanpa terikat kepada mana-mana pihak.” [16] The plaintiff alleged that by reason of the impugned broadcast and commentary together with the telephone interview that the 1st defendant had given the 4th defendant, the plaintiff had been portrayed:

(i) As a person of disrepute, who possesses the propensity to interfere in the responsibilities and duties of the police force.

An ordinary, reasonable person reading the impugned article would also form the impression that the plaintiff was DSAI’s tool and he was being used or mobilized to launch maximum assaults on public institutions such as the Courts and the police so as to create public hatred against these two entities. The plaintiff was also a person capable of being manipulated by DSAI to mobilize the opposition leader’s dirty tactics with the purpose of showing that those public institutions referred to are under the thumb of the Barisan Nasional. The plaintiff was portrayed in the impugned article as a person who could easily be manipulated and has no mind of his own. The plaintiff’s conduct in the Sosilawati murder trial in making applications to move the Court to cite the prosecution for contempt of Court was designed to show the weaknesses of some particular institutions in the country.” 17 [30] The learned Judge was in no doubt that the entire impugned article has cast aspersions on the integrity of the plaintiff, is an attack on his character, and that it has the effect of “casting a slur on the plaintiff’s character and reputation and has defamed the plaintiff in his professional calling which would have a tendency to excite against the plaintiff the adverse opinion of others and to lower the plaintiff in the eyes of right thinking members of the public generally. [31] With this finding, the burden shifted to the defendants to lead evidence on the defences pleaded. [32] In relation to the defences of justification, fair comment and the statutory defences under the Defamation Act 1957 [Act 286] that were relied on by the 1st, 2nd and 3rd defendants, the learned Judge did not find any of these defences established. In respect of the 2nd and 3rd defendants, the learned Judge further rejected the defences of reportage, qualified privilege and Reynolds’ defence. [33] Having reached those conclusions, the learned Judge awarded compensatory damages of RM350,000.00, out of which RM150,000.00 is to be paid by the 1st defendant and RM200,000.00 is to be paid by the 2nd and 3rd defendants. 18 ii. Impugned broadcast [34] This is specifically against the 4th defendant. In order to determine whether the impugned broadcast bears or is capable of bearing the defamatory meaning or imputation against the plaintiff as alleged, the learned Judge said that the entire transcript of the impugned broadcast and the audio visual with the word “Diselar” placed across the plaintiff’s photograph need to be examined. These were the learned Judge’s conclusions. [35] Her Ladyship found that the “first part of the transcript” contained the reports prepared by the 4th defendant’s broadcast journalist [DW4] who was in Court on the material day, that is, 16.8.2011. According to the learned Judge, the plaintiff accepted that there was nothing wrong with this first part of the transcript, and this led the learned Judge to conclude that there was nothing defamatory here. The learned Judge opined that “any ordinary and reasonable viewer presented with this first part of the impugned broadcast, would form an impression that the plaintiff was putting in the best interest of his client in keeping with the best traditions of the Bar. This is because he is fearless about taking on the police as they, to him, had abused their powers. This part of the broadcast in my view has in fact the tendency to elevate the plaintiff in the estimation of a reasonable right thinking sic members of the public.” [36] As for “the second part of the impugned broadcast” which related to paragraphs 5A to 5C of the Statement of Claim and where the 1st defendant’s comments were reported with the word “Diselar” displayed across the plaintiff’s photograph, the learned Judge held that this section 19 of the impugned broadcast “must be looked at as a whole and objectively and must be read together with the first part.” According to the learned Judge, “the main question to ask is whether it can be said that this section of the impugned broadcast is a reasonable media coverage of the Sosilawati murder trial.” [37] It was the view of the learned Judge that “an ordinary and reasonable viewer after being presented with the first part of the broadcast, would relate the first defendant’s statement to the cross examination of the police witness the plaintiff had conducted in the proceedings that day as reported by DW4. The plaintiff’s photograph with the words “diselar” therefore must necessarily mean that the plaintiff was being criticized by the first defendant for the manner in which he conducted the cross examination. An ordinary reasonable man viewing the photograph would not in my view have a negative perception of the plaintiff to the extent claimed by the plaintiff in his evidence…An ordinary reasonable viewer who is taken to understand that the plaintiff was being criticized by the first defendant for his conduct in carrying out his duties to protect his client’s interest where the client is facing a capital punishment, would not think the worse of the plaintiff. [38] As for the 1st defendant’s comments which were carried in the impugned broadcast, the learned Judge held that “an ordinary reasonable viewer who is taken to understand that the plaintiff was being criticized by the first defendant for his conduct in carrying out his duties to protect his client’s interest where the client was facing a capital punishment, would not think worse of the plaintiff.” 20 [39] Finally, the learned Judge said that: “Considering the broadcast as a whole, in its natural and ordinary meaning, part of the transcript that the plaintiff found objectionable do not in my view have the tendency to expose the plaintiff to hatred, ridicule or contempt in the eyes of a reasonable man. Nor would it have the tendency to lower the plaintiff in the estimation of right thinking members of society generally.” Our decision [40] We will deal with the appeals in the following order; first the appeal of the 1st defendant before turning to the appeals of the 2nd and 3rd defendant. Thereafter, we will deal with the plaintiff’s appeal. i. Appeal of the 1st defendant [41] Our views and decision on this first appeal is absolutely essential since outcome of this appeal obviously impacts on the other two. [42] Upon careful consideration of the learned Judge’s reasons and reasoning, the submissions of the parties and the records of appeal, we were of the unanimous view that the 1st defendant’s appeal had no merit. The appeal was consequently dismissed. These are our reasons. [43] The thrust of the 1st defendant’s submissions is that the words complained of are not defamatory; and even if they were, there was justification for the comments, and the comments made were fair. 21 [44] The law on the tort of defamation is fairly well settled. It is for the plaintiff to establish on a balance of probabilities that the words complained of are defamatory, that those words refer to the plaintiff, and those words are published – see Dato Sri Dr Mohamed Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [2018] 5 MLRA 509. In the instant appeals, the second and third elements are met. It is quite evident from the impugned article that it is the plaintiff, referred to by name, who is the person referred to in the published article. [45] The accuracy of the 1st defendant’s comments as reported in the impugned article are also not in doubt even if the 1st defendant does not recall his exact words. What then remains for consideration is the matter of whether the learned Judge is correct in rejecting the 1st defendant’s complaints on the pleadings, and in finding that the impugned article was defamatory for the reasons alleged by the plaintiff. [46] On the matter of the pleadings, having examined the Statement of Claim, we agree with the deliberations of the learned Judge in all three respects of the 1st defendant’s complaints. The plaintiff’s pleas are sufficiently precise and concise for the 1st defendant to respond; and respond he did, with ease and no embarrassment. This is quite unlike the situation in D.D.S.A. Pharmaceuticals Ltd v Times Newspaper Ltd & Anor where the Court of Appeal in England found the pleas of the plaintiff in that case to be defective and highly embarrassing. The pleas were too general, and the whole long article was impugned “… without picking out the parts which are said to be defamatory” and including parts which were clearly not defamatory. 22 [47] Further, the plaintiff’s claim of what is the natural and ordinary meaning of the 1st defendant’s words which are cited in the impugned article is not confined to what is pleaded at paragraph 9 but also to that ascribed at paragraph 10 of the Statement of Claim. The opening phrase, “Furthermore and in addition” at paragraph 10 makes that clear, that the meanings at paragraph 10 is to be read with the natural and ordinary meaning alleged at paragraph 9. There are no new or other words impugned at paragraph 10 for the 1st defendant to contend otherwise. [48] As for the learned Judge’s findings that the words used in the impugned article do indeed bear or are capable of bearing the natural and ordinary meaning as claimed, we agree with that conclusion. The learned Judge had properly addressed the issue using the objective test and considering the words and the impugned article in its entirety. We have done the same and we have reached the same conclusion as the learned Judge. [49] The following were the 1st defendant’s comments of the plaintiff-i. that in advancing the politics of the opposition, he frequently sought to tarnish or vilify the image of government institutions ii. as DSAI’s counsel in the opposition leader’s sodomy trial, he now increasingly follows the tune of the opposition in defaming institutions such as the police and the judiciary 23 iii. he is DSAI’s weapon or tool in DSAI’s wholescale attacks on public institutions such as the judiciary and the police so as to incite public hatred of these institutions iv. DSAI’s dirty tactics are intended to show that these public institutions are under the thumb of Barisan Nasional v. DSAI’s dirty tactics are mobilized through the plaintiff vi. he has moved the Court in the Sosilawati murder trial several times to institute contempt proceedings against the prosecution vii. as a member of DSAI’s defence team in the Advisor to PKR’s sodomy trial, he has also made applications to the Court which seek to publicize the weaknesses of institutions in the country. [50] We agree with the learned Judge that the natural and ordinary meaning of those comments are indeed defamatory of the plaintiff. The ordinary and reasonable man reading the 1st defendant’s comments will readily form the impression or conclude that the plaintiff has an interest in opposition politics, is in the habit of utilizing underhand or dirty tactics to demean and tarnish the image of public institutions or institutions of government, especially the police and the judiciary or has a propensity to make attempts to tarnish the image of these institutions for the sake of opposition politics; that the plaintiff has ulterior motives behind his contempt applications against the prosecution which are not connected with his duty as counsel for his client in the Sosilawati murder trial; that the plaintiff acts at the behest of DSAI as he is DSAI’s tool for the sole purpose of generating public hatred of these institutions. The ordinary 24 and reasonable man will also understand from the 1st defendant’s comments that the plaintiff is a person who is easily manipulated or is capable of being manipulated. [51] We have no doubt that such comments of the 1st defendant, considered in their entirety, taking both the bane and the antidote, and viewed objectively, attack the plaintiff’s character and reputation, cast aspersions on his integrity and certainly have the tendency to lower his esteem in the eyes of right thinking members of the public. There is much sting in both the obvious natural and ordinary meanings of the words used as well as in the inference that may be readily made from those comments – see Lewis and Another v Daily Telegraph Ltd [1963] 2 All ER 151; Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362; Charleston v Newsgroup Newspaper Ltd [1995] 2 AC 65. We also find that these words and comments of the 1st defendant impute to the plaintiff dishonourable conduct, motives and a lack of integrity, which virtues are particularly precious to members of the legal profession, and the plaintiff belongs to that fraternity and is a senior member to boot, having at some time held high office as the President of the Bar Council of the West Malaysian Bar. The comments attributed to the 1st defendant do indeed produce a “bad impression on the minds of average reasonable men” as described by Farewell LJ in Leetham v Rank [1912] 57 SJ 111. [52] That being the case, we are of the firm judgment that the learned Judge was properly within her estimation in finding that the 1st defendant had defamed the plaintiff, as was the case in Chok Foo Choo v The China Press [1999] 1 CLJ 461. 25 [53] Moving then to the defences and it is for each of the defendants to prove their respective defences. [54] First, the defence of justification, a complete defence if the defendants can establish that the defamatory words are true in substance and in fact. Such defence however, has to be specifically pleaded with full and clear particulars of the facts and matters relied on. In considering this defence, section 8 of the Defamation Act 1957, where it is relied on, as is the case here, must be taken into account. Section 8 provides that a defendant who is unable to prove the truth of all the material statements in the alleged libel may nevertheless succeed in the defence of justification where the defendant can show that the words not proved to be true or truthful do not materially injure the plaintiff’s reputation. It is the truth of the imputations of the overall statement and not the truth of every word that is material – see Chong Swee Huat & Another v Lim Shian Ghee t/a L&G Consultants & Education Services [2009] 4 CLJ 113. [55] Unfortunately, in the case of the 1st defendant, he failed in this defence for several reasons. We cannot find any appealable error in the learned Judge’s reasoning, findings of fact and conclusions of law. [56] Paragraph 20.3(c) of his Defence contains the 1st defendant’s plea of justification, and the details of why and how the comments are true in substance and on the facts. A perusal of paragraph 20.3(c) shows that the pleas pertain to the plaintiff’s applications before the same Court trying the Sosilawati murder trial to cite the three Deputy Public 26 Prosecutors [DPPs] who were prosecuting in that murder trial, for contempt. A witness, U Suresh in the Sosilawati murder trial was charged for perjuring in that murder trial. The charge was brought at the Sessions Court. The plaintiff challenged the propriety of those proceedings as being in contempt of Court; arguing that such proceedings should not be initiated when the High Court in the Sosilawati murder trial had yet to resolve the question of the credibility of U Suresh through impeachment proceedings. [57] The plaintiff’s applications to cite the DPPs for contempt and to subpoena them were dismissed by the High Court on 12.9.2011. The 1st defendant claimed that the dismissal was for want of basis and merit; that it was the absolute discretion of the Public Prosecutor under Article 145 of the Federal Constitution to charge; that the three DPPs could not be in contempt as they were merely carrying out the instructions of the PP; that the plaintiff, being a senior practitioner especially in the field of criminal law, ought to have been aware of this position in law. The 1st defendant thus questioned the motive behind the plaintiff’s applications, suggesting that the applications under such conditions were unjustified. Consequently, the plaintiff’s applications must be a challenge or attack on the institutions handling such prosecutions. For these reasons, the 1st defendant was justified in his allegations of the plaintiff. [58] At the trial, the 1st defendant testified not on the matters as pleaded at paragraph 20.3(c). Instead, he related on other matters, on the contempt proceedings against the plaintiff in 1989, the plaintiff’s involvement with contempt proceedings against Zainur Zakaria in 1989, the plaintiff’s comments to Asia Sentinel and the plaintiff’s relationship 27 with Datuk Nallakaruppan – see his witness statement Q&A 13 - 28. His counsel’s cross examination of the plaintiff followed the same lines. This evidence was ignored and we agree with the learned Judge’s view that the 1st defendant, and any other party for that matter, is not entitled to rely on the pleadings of another party, here it was the defence of the 2nd and 3rd defendants, to “cure the deficiency in his own pleadings”. [59] As for the matters pleaded in paragraph 20.3(c), it is an uncontroverted fact that the 1st defendant was not in Court at the material time of the hearing of the plaintiff’s applications for contempt against the three DPPs, that is, on 11.8.2011, or even on 16.8.2011. On the afternoon of 16.8.2011, he was in Parliament. Justice Akhtar Tahir, who heard the applications, did not decide on the plaintiff’s applications until 12.9.2011; and the grounds were only made available on 26.6.2013 [exhibit D23]. The impugned comments which form the bedrock of the impugned article were however made on 16.8.2011. With this timeline, there was simply no basis or source upon which the 1st defendant can claim justification. [60] In any event, the learned Judge examined the grounds of decision of Akhtar Tahir J and found that the judgment “did not support his defence of justification.” There were no criticisms of the plaintiff; on the contrary, Akhtar Tahir J observed that “both the defence and the prosecution teams were one of the best that he had come across and both had displayed highest attitude of professionalism as well as upheld the best tradition of the Bar.” Akhtar Tahir J also did not find the plaintiff’s applications to cite the DPPs for contempt as amounting to 28 “fitnah” or had “menyisihkan undang-undang ke arah lain”, or even that the plaintiff was “attacking the police or badgering the prosecution.” [61] We understand that the 1st defendant, as were the 2nd and 3rd defendants, were in fact summoned and reprimanded by Akhtar Tahir J following his impugned comments; and this was rightly taken into consideration by the learned Judge in the plaintiff’s defamation claim. Akhtar Tahir J is reported to have told the 1st defendant that he should not comment on what transpires in an ongoing trial, adding that it was all the more serious as Gobalakrishnan had made untruthful remarks despite not being present at the hearing. His Lordship was quoted to have said: “What I am concerned about is that you have projected that the Court can be easily manipulated for political purposes…It does not mean that we are fools sitting here allowing deputy public prosecutors (DPPs) or defence counsel to do as they like. We go according to the law.” - see exhibit P9. [62] We finally must add that the plaintiff’s applications, though rare, and his conduct and handling of witnesses, are entirely matters within his professional expertise and skill, especially a counsel of his standing and repute. These matters are not wrongdoings and any departure from acceptable conduct and behavior in Court are absolutely within the jurisdiction of the trial judge to adjudge and control. As we have seen, the trial judge did not admonish the plaintiff in any way whatsoever; instead, it was the 1st, 2nd and 3rd defendants who were summoned by the trial Judge and sternly warned off. In any event, the plaintiff’s applications and cross-examination of the witnesses cannot provide any 29 backdrop or context of any extent for the 1st defendant to have commented on the plaintiff in the manner that he did. [63] As to the defence of fair comment, the 1st defendant relied on the same factual basis as that used for the defence of justification. [64] The 1st defendant complained that the learned Judge had misdirected herself on the factual foundation for this defence of fair comment, that her Ladyship had confused the events of 11.8.2011 where the plaintiff had brought contempt proceedings against the DPPs, with the events of 16.8.2011 where the plaintiff was cross-examining the police witnesses. According to the 1st defendant, he had relied on the earlier events as justifying his comments, that the public institutions were being attacked in those proceedings and by such action. [65] With respect, we disagree. The trial Judge examined the contempt proceedings separately at paragraphs 55 to 64. This examination was not merely for the purpose of dealing with the defence of justification but also fair comment. This was with the object of establishing the truth of the events relied on by the 1st defendant in paragraph 20.3(c) of his Defence. Whether in respect of the defence of justification or fair comment, it is incumbent on the 1st defendant to show that the facts relied on are true. As we will see, the 1st defendant failed in establishing the truth of the facts relied on, and that the extent of the failure was such that he could not avail himself of the benefit of section 9 of the Defamation Act. 30 [66] Now, in order to succeed, the 1st defendant will have to establish that the comments, although consisting or including inferences of fact, are actually expressions of opinion which a fair-minded person can honestly make on a matter of public interest and that such opinion is based on true facts. No person, including the 1st defendant is entitled to suggest or invent facts and then comment upon them, assuming that they are true. If the facts upon which the comments purport to be made do not exist, then this defence fails, as opined by the Privy Council in Joshua Benjamin Jeyeratnam v Goh Chok Tong [1989] 3 MLJ 1, 3. Context would therefore be relevant. [67] Further, this defence is lost if the comments are found to be made maliciously. This was explained by the Court of Appeal in Dato Sri Dr Mohamed Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [supra]: “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. It is also a requirement that 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 have to prove the truth of every fact provided that 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. [See, the case of 31 Dato Seri Mohammad Nizar Jamaluddin v Sistem Televisyen Malaysia Berhad & Anor [2014] 3 MLRA 92.” [68] We find that the applicable principles were judiciously appreciated and applied by the learned Judge. Although agreeing with the 1st defendant’s contentions that as a parliamentarian, he was entitled to comment on matters of public interest, the learned Judge cautioned that the 1st defendant was nevertheless required to “get his basic facts right and the basic facts are those which go to the pith and substance of the matter”. Specifically, the learned Judge concluded that the 1st defendant chose not to verify his facts or assumptions “because he intended to use those proceedings as a basis for the attack on the plaintiff’s reputation in order to get to DSAI.” [69] More significantly, the learned Judge found the 1st defendant “actuated with malice” when he made his charges against the plaintiff, and was actually indifferent to the truth of what he had commented on, so long as he could get to the opposition leader. For the same reasons, section 9 of the Defamation Act was not available to the 1st defendant. [70] We agree with the learned Judge. The finding of malice was with basis and we have no reason to disturb such findings of fact. The learned Judge had evaluated the entire body of evidence and had heard the testimonies of the plaintiff and the 1st defendant before concluding that she had no reason not to accept the plaintiff’s testimony that he had never known the 1st defendant. 32 [71] At the trial, the 1st defendant made numerous complaints against DSAI which the learned Judge chose to ignore as the complaints were not for her consideration. These complaints, nevertheless, evidenced the 1st defendant’s ill feelings towards the opposition leader. The learned Judge found that the 1st defendant was once a supporter of the opposition and a member of PKR but “for some reason, fell out with the leadership and left the party”. Further, the learned Judge found that whilst he admitted that he was unsure of the things that he had said about the association of the two, that is, DSAI and the plaintiff, the 1st defendant nevertheless made unsubstantiated averments about the plaintiff so as to associate the plaintiff with the opposition leader, claiming to have met the plaintiff “a couple of times, probably in early 2000 and probably at DSAI’s house when the opposition leader was released from the prison.” The learned Judge found that it was erroneous of the 1st defendant to associate the plaintiff with DSAI’s defence team and that the correction by the 3rd defendant the following day, did not alter that. [72] We further agree with the learned Judge that the 1st defendant’s comments and charges cannot in any event amount to fair comments. The 1st defendant could not claim to be an informed reader of the contempt proceedings because nothing was published until much later. He was also not in Court at the material time to follow and thereby appreciate the meaning and implications of the proceedings; that as a lay person, he “really had no idea on what was going on in the proceedings” in the Sosilawati murder trial; that he made no verification with the plaintiff or any of the lawyers involved in the trial; and while the 33 Sosilawati murder trial had attracted much public interest, not everything that happened at the trial could be said to be of public interest. [73] The records further show that on the material day, there was no attack of any kind by the plaintiff or the defence team, of any public institutions, be it the police or the judiciary. Whether in respect of the contempt applications or the conduct of the proceedings in the Sosilawati murder trial, the plaintiff was taking and acting on instructions of his client. He had set about his duty and responsibility of cross-examining a witness(s) on an issue which he, as lead counsel, felt was material and relevant in establishing his client’s case, or furthering his client’s cause or complaint. The plaintiff’s applications to cite the DPPs for contempt and decisions to do so are entirely matters of professional judgment taken together with client’s instructions and authority. Any abuse of the proceedings was well within the power and jurisdiction of the relevant judge to deal with, as he or she thinks fit. In this case, the applications were dismissed by Akhtar Tahir J who not only had made the positive comments about the plaintiff as alluded to earlier, but had on the plaintiff’s application, summoned the defendants to account for the impugned article. [74] In our view, the facts and circumstances upon which the impugned comments were made display a certain measure of callousness, indifference and even recklessness on the 1st defendant’s part. Such conduct is irresponsible and wholly reprehensible, particularly when the 1st defendant’s public office as a Parliamentarian is taken into account. We therefore find that the defence of fair comment was properly concluded to be unavailable to the 1st defendant. The learned Judge 34 was thus correct in allowing the plaintiff’s claim against the 1st defendant. The 1st defendant’s appeal is therefore without merit and must be dismissed. ii. Appeal of the 2nd and 3rd defendants [75] The plaintiff’s action against the 2nd and 3rd defendants is in respect of the impugned article. Following the Court’s findings that the 1st defendant’s words are defamatory, and since the 1st defendant’s words form the pith and substance or just about the entire article, that finding which we have just affirmed, applies and binds the 2nd and 3rd defendants. These defendants wrote down, reported and published the 1st defendant’s libelous words in which case, they are equally liable for defaming the plaintiff. In an action for libel, every person involved in defaming the individual remains liable whether that person wrote or merely passed the defamatory article or comment on to the next listener or recipient – see page 348 of Halsbury’s Laws of England, 5th Edition, Volume 32: “Every person who takes part in or procures the publication of a libel is prima facie liable jointly and severally for all the damage caused by it. Thus, if a libel appears in a newspaper, the author of the libel and the proprietor, editor printer, publisher and vendor of the newspaper are prima facie jointly and severally liable.” [76] In this case, it is pertinent to note that these defendants did not merely repeat the 1st defendant’s defamatory comments of the plaintiff; 35 they had picked up and singled out parts of the 1st defendant’s comments and given them emphasis with these words: “Ikut rentak pembangkang, fitnah terhadap polis, mahkamah – Gobalakrishnan; Manjeet selalu burukkan kerajaan”. The second headline of “Manjeet selalu burukkan kerajaan” is entirely these defendants’ comments, reached after having heard the 1st defendant’s. Hence, the facts relied on to justify their comments are by reference not to the prevailing events on 16.8.2011 but, other and earlier events. [77] We are of the view that these comments are equally defamatory of the plaintiff for the same reasons discussed earlier in relation to the 1st defendant. Learned counsel for these defendants had contended that there are no accusations made against the plaintiff. We cannot agree. The impugned article carries and is capable of the natural and ordinary meaning complained of by the plaintiff. Those complaints are not extreme but entirely reasonable and of merit. This is not a case where one bad meaning is selected where other non-defamatory meanings are available from the impugned words [as was the case in Goh Chok Tong v Jeyaretnam [1998] 3 SLR 337]; rather when the impugned article is read as a whole by the reasonable reader who has general knowledge of the political and social standing of the plaintiff, that reader will understand and see that the plaintiff’s reputation is indeed disparaged by the impugned article. Contrary to the 2nd and 3rd defendants’ contentions, we are of the view that a reasonable reader will read the impugned article as not mere adoption and republication by them, but as their affirmation of its contents, and that they share the 1st defendant’s views. As pointed out earlier, while we accept that the media such as 36 these defendants to a large extent, depend on headlines, that which was emplaced by these defendants confirm what we have just expressed. [78] What follows then for consideration is the defences of these defendants, all of which were rejected by the learned Judge. These defendants pleaded justification, fair comment, reportage, Reynold’s privilege, qualified privilege and sections 9, 11 and 12 of the Defamation Act 1957. After careful evaluation of the submissions of respective counsel for the 2nd and 3rd defendants and for the plaintiff and the records of appeal and the grounds of decision, we are of the unanimous decision that their appeal too, is without merit. [79] We pause here to make what we see as a significant point, and that is the order of defence pleaded. Although the learned Judge dealt with the defence of justification first before attending to the defences of fair comment, statutory defences, reportage and then qualified privilege, we believe the defence of reportage, perceived as a sub-specie of qualified privilege, should be dealt with first. This defence, if relied on, sits at the top of the best defences a publisher can raise. It is, however, a mutually exclusive plea and difficult to raise as an alternative due to the principles and elements involved. A view to this effect was expressed in the case of Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] MLJU 34, and we adopt the same here. [80] We add that this defence should not be given a liberal or broad interpretation given its peculiar attributes, as expressed by Jason Bosland in his paper entitled “Replication of Defamation under the 37 Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales” published in the Oxford Journal of Legal Studies, UNSW Law Research Paper No. 2010-20: “The ‘doctrine of reportage’ – the term by which this particular application of Reynolds’ privilege has since been known - essentially provides a defence for the republication of allegations originally made by a participant to a dispute or controversy of public interest. Repeating a defamatory allegation, subject to any other defence, would usually give rise to liability on the part of the republisher. Under the reportage defence however, liability will be avoided where the republisher does not adopt or present the repeated defamatory allegation as fact, but instead simply republishes the allegation as part of a story that has the effect of reporting, in the public interest, the fact that the allegation has been made.” [81] This defence of reportage was pleaded at paragraphs 19 and 24 of the Amended Defence. It is quite apparent that the learned Judge has properly appreciated this defence and its attendant principles; that as explained by the authors, Duncan and Neill on Defamation, 3rd Edition, page 210 this defence entails the following- “17.20 There may be cases in which the very fact that certain allegations are being made or that a certain controversy exists will constitute a matter of public interest. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of the allegations before publishing them. Such reports have been described as ‘neutral reportage’ and may be protected by Reynolds’ privilege. However, in reporting in any such case, the defendant will have to exercise great care to preserve an appropriate degree of neutrality if he is to prove 38 successfully that both the publication and its tone were consistent with the duty to act responsibly and fairly. [82] In other words, for the 2nd and 3rd defendants to succeed on the defence of reportage, they must be merely republishing the 1st defendant’s defamatory words or comments. There is neutrality in their tone and in the manner in which the republication was effected; with no adoption of the views or comments expressed. Republishers are permitted to raise this defence of mere reporting or reportage to a charge of defamation because of the element of public interest involved, that the defamatory comments concern a dispute, controversy or matter of public interest at the material time. This element of public interest and to a large extent, the urgency of the matter, obviates the requirement of verification, particularly with the plaintiff, before the republication is made. Entities such as the 2nd and 3rd defendants see it as their duty and responsibility to record and convey the 1st defendant’s comments out to the public; that the public interest overrides their obligation to verify. This defence reflects and acknowledges responsible journalism. [83] However, we agree with the learned Judge that on the facts, this was not a case of true reportage. No dispute or controversy between the 1st defendant and the plaintiff, or between any entities for that matter, which dispute was also one of public interest at that material time, was identified by the defendants. In fact, the learned Judge found this “basic requirement” not met as “there was never an existing controversy which required reporting to the public at large due to its importance. In fact the first defendant gave the statement to the second defendant unilaterally 39 over the telephone and this was published almost verbatim by the second and third defendants.” [84] We cannot agree with the 2nd and 3rd defendants that their reporting on the Sosilawati murder trial, though a trial attracting public attention, meant that it was a licence for them to republish defamatory material which has no public interest element whatsoever. Publishing the proceedings, especially the fact that there was rigorous cross-examination by defence counsel and reported in appropriate language, is entirely different from reporting or republishing material offered by a member of the public, even one who holds the office of a Member of Parliament, that such cross-examination is otherwise motivated or, is launched by a counsel who acts on someone other than his client’s instruction. [85] These defendants were also not neutral as they had adopted the 1st defendant’s views as being accurate and truthful. Once these defendants have crossed the threshold of neutrality and had adopted the 1st defendant’s comments as theirs, they were obliged to verify with the plaintiff. This is particularly so when the 2nd defendant had admitted that there was no urgency in the republication; that it could wait. Responsible journalism means responsible conduct. The factual circumstances simply do not support this defence. The learned Judge was consequently entitled to rule that the defence of reportage was not available to the 2nd and 3rd defendants. [86] The next defence was that of justification which relied on the following facts to justify the impugned article: 40 i. Justice Akhtar Tahir’s decision in the Sosilawati murder trial that the police investigations in that case was “world class” ii. the plaintiff’s contempt applications against the DPPs iii. the contempt proceedings against the plaintiff in relation to his statement on Tun Dato Abdul Hamid iv. the plaintiff’s Statutory Declaration in the contempt proceedings against Zainur Zakaria v. the plaintiff’s comments made to John Berthelsen on the Altantuya case in the Asia Sentinel [87] This defence too, was rejected. These defendants complained that the learned Judge failed to have regard to the context in which the impugned article was written and published, that they were merely publishing the 1st defendant’s comments in a criminal trial, the comments of which happened to be of the plaintiff. [88] At the trial, the 2nd defendant testified that with the 1st defendant a Member of Parliament and in the interest of democracy, it was his duty to report the type of news, or the 1st defendant’s comments. Learned counsel for the 2nd and 3rd defendants submitted that since the Sosilawati murder trial was perceived as “one of the most high-profile murder cases in Malaysia, possibly even in the world. It has generated a lot of publicity. Comments made in the course of this case by the respondent/plaintiff are guaranteed to attract media and political attention and thus the comment must be neutral and fair. DW3 merely reported Gobala’s words. By the paper reporting both sides of the story 41 neutrally, the appellants/defendants aim to inform the public the actual scenario.” [89] As was just expressed, the status of the 1st defendant and the fact that the criminal trial may have generated substantial interest are by no means free passes to slandering another, it is the duty to speak responsibly. We agree with the learned Judge that since the 1st defendant’s telephone interview with the 2nd defendant which was reported and published by the 3rd defendant was in connection with the plaintiff’s conduct in the Sosilawati murder trial, the context must be so related, that the comments must relate materially to those proceedings and the plaintiff’s professional conduct therein. The factual context relied on by these defendants fail in that regard. We add that our earlier observations made in respect of the 1st defendant’s defence of justification apply equally to the 2nd and 3rd defendants. [90] The 2nd and 3rd defendants were summoned by Akhtar Tahir J over their publication of the impugned article. What transpired in Court was carried in the New Straits Times on 27.8.2011 – exhibit P36, the accuracy of which is not in issue. Akhtar Tahir J is reported to have said in those proceedings as follows: “I summoned you both to inform you that you should not have published this article and make comments on the ongoing trial. Some of the applications you touched on, I haven’t even made my decision. Do you know you are not supposed to write or discuss about the case? Raja Syahrir, who had been with the daily for four years, said “yes”. Akhtar: So you knew but you still published it anyway? Raja Syahrir: I thought it was fair comment and did not know that it would lead to contempt of Court. 42 Aziz who said he had been with the publication for 27 years, also had he had no intention to be held in contempt. Akhtar pointed out that the two newsmen were not even present during the proceedings, adding that what they were reporting was inaccurate. “You want to discuss or comment the matter at a coffee shop, go ahead but you cannot publish it in the newspapers,” he said, adding they could only report what transpired in Court. He said the article not only attacked Manjeet but also the Court, making it look like the Court could be used as a political arena.” [91] Both defendants were thereafter “let off with a warning”. We find it difficult under such circumstances, to agree with the 2nd and 3rd defendants that they were justified in writing the impugned article. The impugned article carried and contained untruths from the 1st defendant which these defendants perpetrated quite irresponsibly and without justification. [92] It is interesting to note that the 2nd defendant had testified that he honestly believed that what he had written was true and accurate because of his own working knowledge of the plaintiff’s background. He claimed that he in fact, shared or held the same opinion of the plaintiff as did the 1st defendant. Now, since the impugned article has been proven to be defamatory, the second phase kicks in for the defendants to prove that the contents of the impugned article are substantially true. It is not enough that the defendants believed the allegations are true, the facts upon which the belief has arisen and not the belief itself, must now be proved to be true. 43 [93] The learned Judge questioned the 2nd defendant’s claim of working knowledge as one without basis. At paragraphs 76 and 77 of the judgment, the learned Judge found that the “working knowledge” that the 2nd defendant talked about was actually what he had learnt or gathered from reading newspaper reports, articles and cases which the plaintiff was involved in. When tested, the 2nd defendant’s working knowledge was found sorely wanting. The 2nd defendant had also claimed to be conversant with the Tun Salleh Abas’ case. Yet, the learned Judge found that the 2nd defendant was actually unaware of the existence of a dissenting judgment in that case, that there were many related events that put paid to their contentions. [94] As for his knowledge of the Sosilawati murder trial, the trial Judge found that the 2nd defendant had admitted that he was actually not reporting on the Sosilawati murder trial at any stage, that the impugned article was in fact his first article on the murder trial, that he did not even know whether the 1st defendant was present in Court during the murder trial, that he relied entirely on the 1st defendant for the statement, and, that he “would not have known all the things that the 1st defendant was ignorant of”. [95] Her Ladyship expressed “serious doubts as to the extent of the second defendant’s working knowledge to sustain his knowledge of sic the all the cases the plaintiff was involved in and about the plaintiff himself. From his testimonies in Court whilst under cross examination and even re-examination, it is obvious to me that his actual working knowledge did not go that far as what was in his pleadings and what was contained in his witness statement.” 44 [96] These are very serious observations that the learned Judge could only have validly arrived at after fully examining the details relied on, and after having heard the testimonies of these defendants. On our part, we find ourselves in full agreement with the learned Judge after examining the records of appeal. [97] These same observations led the learned Judge to draw a very significant inference, that there was malice on the part of the 2nd and 3rd defendants. After hearing the evidence of these defendants, and comparing their evidence with the materials relied on, the learned Judge concluded that it was simply not possible for the 2nd defendant to claim that he had an honest belief in the plaintiff’s background and shares the 1st defendant’s comments. The learned Judge specifically found that the impugned article had no relation with the proceedings in the Sosilawati murder trial, that these defendants were reckless to the truth of the contents of what they were about to publish. These defendants knew that they were in no hurry to publish; yet, they chose not to verify with the plaintiff so as to obtain his view or to at least check “the facts” and maintain some measure of neutrality. These findings are with basis and reason. We, thus, see no merit in disturbing that decision. [98] Despite these concerns and the findings of malice, the learned Judge proceeded to carefully consider and evaluate every factual basis that was relied on by the 2nd and 3rd defendants. This is evident from paragraphs 78 to 104 of the grounds of decision. After undertaking that exercise, the defendants were still found to have failed in their defence. We have no hesitation in agreeing with the learned Judge. We found 45 the learned Judge’s deliberations and conclusions in this respect both sound in law and correct on the facts. [99] Dealing with the 2nd and 3rd defendants’ reliance on Akhtar Tahir J’s findings as justifying their impugned article that the plaintiff’s action in demeaning the government institutions was unwarranted and defamatory of the police force, the learned Judge was quite correct in finding that these defendants had omitted citing certain parts of the judgment. Not only did Justice Akhtar say that the police investigation in the Sosilawati murder case “although … was not textbook perfect and it can never be, it was nevertheless a world class investigation carried out with the utmost care and precision”, he had also acknowledged that the “defence and prosecution teams were one of the best I have come across and both displayed highest attitude of professionalism as well as upheld the best tradition of the Bar. Arguments, submissions and examinations were of the highest quality and greatly assisted me in making a reasoned decision.” The plaintiff’s applications for contempt against the DPPs were never perceived, especially by the trial Judge in the murder trial, to be anything but professional and within the rights of the accused and as part of the conduct of his defence to the serious charge of murder. Thus, when all the relevant parts of Akhtar Tahir J’s judgment are read, these defendants’ defence of justification is readily demolished. [100] We similarly agree with the learned Judge’ findings that just because the plaintiff has a previous conviction for contempt of Court for scandalizing the Court, there was no basis for the defendants’ 46 contention that the plaintiff was in the habit of doing so. In fact, subsequent events negated these defendants’ contention. [101] The earlier contempt proceedings against the plaintiff arose from an affidavit that he had affirmed in his capacity as Secretary of the Malaysian Bar on 25.4.1989 and filed in support of the Bar’s application for leave to commit the then Lord President of the Supreme Court, Tun Hamid bin Omar – see Malaysian Bar v Tan Sri Dato Abdul Hamid Omar [1989] 1 CLJ (Rep) 92. Although the plaintiff was found guilty for contempt [Attorney General v Manjeet Singh Dhillon [1991] 1 CLJ (Rep) 22], and the Malaysian Bar continued to oppose the Lord President, the plaintiff who had by then become the President of the Bar, took the view that the Bar had to move on. The plaintiff was reported to have urged reconciliation and had made “an impassioned plea to members to recognize and acknowledge the position of Hamid as Lord President”, and to accord the Lord President the respect and courtesy that was due to his office; this plea was rejected following a vote. This led to the plaintiff’s resignation as President of the Bar – see for instance exhibits P13, P14, P15, P18, P19, P20. [102] We also agree with the learned Judge’s view on the plaintiff’s Statutory Declaration [SD] in the contempt proceedings against Zainur Zakaria. Again, the learned Judge found that the 2nd and 3rd defendants were unaware and unfamiliar with the actual events in that case, that they had not read the related judgment as reported in Zainur Zakaria v Public Prosecutor [2001] 3 MLJ 604 [exhibit P25] and the observations of Abdul Malek FCJ and Steve Shim CJSS which revealed that the reliance on this event was baseless and really an afterthought. 47 [103] The SD [exhibit P40] pertained to a private letter dated 12.10.1998 [exhibit P51] that the plaintiff wrote to the then AG, Tan Sri Mohtar Abdullah. The plaintiff explained that the letter was shown to one of the lawyers acting for DSAI but it was used in DSAI’s trial without his consent. This letter and the plaintiff’s SD became the subject matter of contempt proceedings initiated against Zainur Zakaria – see PP v Dato Seri Anwar Ibrahim (No. 4) [1999] 3 CLJ 549. Messrs Zainur Zakaria & Co had filed a motion on behalf of DSAI for orders that two named Senior DPPs be prevented, prohibited or discharged from prosecuting in that case against DSAI. The motion was supported by an affidavit affirmed by DSAI and based on the plaintiff’s SD and letter. [104] The motion was struck out by Augustine Paul J after it was found to be contemptuous. The counsel, Zainur Zakaria was then found guilty of contempt and sentenced to 3 months’ imprisonment. Augustine Paul J then issued a warrant of arrest for the plaintiff to appear before him. The plaintiff appeared voluntarily and after the plaintiff tendered his apology, the warrant was cancelled. Those proceedings were carried in the 3rd defendant’s own reports on 2.12.1998 [exhibit D37] and 3.12.1998 [exhibit P44], which reports the learned Judge found the defendants themselves had failed to appreciate. [105] As for the plaintiff’s comments made to John Berthelsen on the Altantuya case and appearing in the Asia Sentinel under article entitled “Altantuya Killer’s Appeal Up Soon” – exhibit D2, we cannot fault the learned Judge for her findings that the plaintiff’s comments do not carry the imputation suggested by the defendants. The 2nd defendant had 48 also admitted to having very little in depth knowledge of the plaintiff’s comments in this article thus leaving the defendants in no position to hold any belief as claimed. [106] The defendants’ defence of justification was quite correctly ruled to be without merit, and thereby properly rejected. We find the same to hold true in respect of the defences of fair comment, and reliance on sections 9 and 11 of the Defamation Act 1957. The impugned article cannot by any argument, be held out to be a fair, accurate and contemporaneous report of the proceedings in Court on the material date. Neither of the first three defendants were in Court at the material time, especially the 1st defendant, upon whom the 2nd and 3rd defendants depend for the accuracy of their account in the impugned article. Section 11 can only be available if the report in the article is accurate. The learned Judge had quite rightly found, as Akhtar Tahir J had found, that the contents of the impugned article were inaccurate. Consequently, we were compelled to dismiss the 2nd and 3rd defendants’ submissions in this regard. [107] Further, we agree with the learned Judge that the defences of qualified privilege of newspaper under section 12 of the Act, common law qualified privilege and Reynolds’ qualified defence were not available to the 2nd and 3rd defendants because there was a lack of honest belief in the truth of what was published. This belief is one of the requisite elements as expressed by Lord Diplock in Horrocks v Lowe [1975] AC 135. The defendants must not be seen to have published the defamatory material “recklessly, without considering or caring whether it be true or not”. If that is found to be the case, then the defendants will 49 “be treated as if he knew it to be false”. The learned Judge had found that because of the failure to procure the plaintiff’s side of the story on the statements made by the 1st defendant, it was not “possible for them to say that they held an honest belief in what was written and published.” [108] We are in full agreement with the learned Judge that with the circumstances and facts as determined by the learned Judge and as discussed earlier, the impugned article was not a “piece of responsible journalism” to which the Courts can properly afford protection and uphold the defences pleaded. The plaintiff’s claim against the 2nd and 3rd defendants was therefore properly allowed and these defendants’ respective appeal is without merit. iii. The plaintiff’s appeal [109] This brings us to the final appeal, and that is the plaintiff’s appeal against the learned Judge’s findings that the impugned broadcast was not defamatory. [110] After considering the arguments and the law, we were unanimous in our conclusion that the learned Judge had plainly erred in this regard. [111] As pointed out earlier, the learned Judge had treated the impugned broadcast as containing two parts. The first part was found to be not defamatory as it contained mere recantation of the proceedings in Court on the material date. This was acknowledged by the plaintiff. However, insofar as the second part was concerned, the learned Judge 50 opined that it must be looked at against the first part, looked at “as a whole and objectively and must be read together with the first part”; and in so doing, there is no defamation established. [112] According to the learned Judge, “an ordinary and reasonable viewer after being presented with the first part of the broadcast, would relate the first defendant’s statement to the cross examination of the police witness the plaintiff had conducted in the proceedings that day as reported by DW4. The plaintiff’s photograph with the words “diselar” therefore must necessarily mean that the plaintiff was being criticized by the first defendant for the manner in which he conducted the cross examination. An ordinary reasonable man viewing the photograph would not in my view have a negative perception of the plaintiff to the extent claimed by the plaintiff in his evidence…An ordinary reasonable viewer who is taken to understand that the plaintiff was being criticized by the first defendant for his conduct in carrying out his duties to protect his client’s interest where the client is facing a capital punishment, would not think the worse of the plaintiff.” Considered as a whole, the learned Judge did not find the complained part of the transcript to have the natural and ordinary meaning and effect of exposing the plaintiff to “hatred, ridicule or contempt in the eyes of a reasonable man. Nor would it have the tendency to lower the plaintiff in the estimation of right thinking members of society generally.” [113] With respect, we must disagree for the following reasons. 51 [114] Her Ladyship understood the impugned broadcast to incorporate the transcripts and the audio visual components. The transcripts read as follows: VT INSERT Kamay PERBICARAAN KES BUNUH JUTAWAN KOSMETIK – DATUK SOSILAWATI LAWIYA DAN 3 YANG LAIN. Aza KEUPAYAAN SEORANG PEGAWAI POLIS DARI UNIT BANTUAN TEKNIKAL D-NINE YANG MENGAMBIL MASA KIRA-KIRA 15 MINIT UNTUK MENYELESAIKAN SOAL SIASAT TERHADAP TERTUDUH KE-2 THILAIYALAGAN … DAN 45 MINIT BAGI TERTUDUH KE-4 - KATHAVARAYAN 11 SEPTEMBER TAHUN LALU DIPERSOAL PIHAK PEMBELAAN. Kamay IA, SELEPAS SAKSI MEMAKLUMKAN DIA BERSAMA 13 LAGI PEGAWAI BAWAHNYA TIDAK MEMPUNYAI PENGALAMAN KHUSUS ATAU TEKNIK TERTENTU ADALAM MENYOAL SIASAT SAKSI. WAIT FOR CUE INGESTED SOSILA PAGI / SOSILA PETANG 160811 ==cwsaksi pakai baju kemeja biru, tali leher== PERKARA ITU DIMAKLUMKAN CIF INSPEKTOR N. GOVINDAN KETIKA DISOAL BALAS PEGUAM – MANJEET SINGH DHILLON KETIKA PERBICARAAN DALAM PERBICARAAN SIANG TADI … ==cw manjeet, peguam ikat rambut beruban== YANG MEMPERTIKAIKAN KAEDAH SOAL SIASAT DIGUNAKANNYA SEHINGGA BERJAYA MENDAPATKAN MAKLUMAT DARI TERTUDUH DALAM MASA SINGKAT. WALHAL SEBELUM ITU - PEGAWAI PENYIASAT YANG LAIN MENGAMBIL MASA SEHINGGA 2 JAM UNTUK MENYOAL TERTUDUH TANPA MENDAPAT SEBARANG MAKLUMAT. ============== (Letak muka manjeet) “Aston : Saya cadangkan terdapat unsur kekerasan dan paksaan dalam soal jawab “Kamu setuju atau tidak? Manjeet Singh Dhillon / Peguam 52 TIDAK PUAS HATI DENGAN JAWAPAN DIBERIKAN - MANJEET KEMUDIAN MENCADANGKAN TERDAPATNYA UNSUR KEKERASAN DAN PAKSAAN DALAM SESI SOAL JAWAB ITU… ================ (Letak muka manjeet) “Aston : Saya tidak setuju dengan cadangan itu. Jika saya buat saya akan mengaku kepada mahkamah” Cif Inspektor N. Govindan / Saksi NAMUN DINAFIKAN GOVINDAN ================ (Letak muka manjeet) “Aston : Tiada sebarang kekerasan seperti dakwaan tertuduh sebelum ini seperti mencubit kemaluan, memukul dengan hos getah dan mengacukan pistol dibuat ketika sesi soal jawab berlangsung” Cif Inspektor N. Govindan / Saksi ==cw saksi pakai baju kemeja biru, tali leher== DIA YANG SUDAH BERKHIDMAT BERSAMA P-D-R-M SELAMA 25 TAHUN JUGA MENYANGKAL DAKWAAN TERTUDUH SEBELUM INI… TERDAPAT KEKERASAN SEPERTI MENCUBIT KEMALUAN, MEMUKUL MEREKA DENGAN HOS GETAH DAN MENGACUKAN PISTOL KETIKA SESI SOAL JAWAB ITU BERLANGSUNG. BERBICARAAN DIHADAPAN HAKIM - DATUK AKHTAR TAHIR BERSAMBUNG KHAMIS. ENDS. READOVER Kamay SEMENTARA ITU, HUJAH MANJEET SINGH DHILLON YANG MENGATAKAN POLIS BERTINDAK KERAS TERHADAP TERTUDUH – DISELAR AHLI PARLIMEN PADANG SERAI, N. GOBALAKRISHNAN Aza BELIAU MENYIFATKAN HUJAH BERKENAAN, MENAMPAKKAN USAHA PEGUAM ITU DALAM CAMPUR TANGAN BIDANG KUASA KEPOLISAN PADA MASA SAMA, KENYATAAN ITU DIJANGKA DIAMBIL PELUANG OLEH PEMBANGKANG UNTUK MEMANIPULASI ISU TERBABIT DEMI KEPENTINGAN POLITIK MEREKA. =pause= 53 =ROLLVT= INGEST PIN GOBALA *buat slide running visual kat court ke SUPER: N. GOBALAKRISHNAN / AHLI PARLIMEN PADANG SERAI IN:000354 DAN INI ADALAH UNTUK MENJAUHKAN POLIS DARI MEMBUAT KERJA MEREKA YANG SEBENARNYA, SAYA NAMPAK INI DARI DULU LAGI DAN INI AKAN MEMBERI RANGSANGAN MEREKA YANG MAHU SERANG POLIS MISALNYA. TENGOK RAMAI DI KALANGAN PEMBANGKANG BERANI SERANG KERANA POLIS PUN TERIKAT DAN TERTAKLUK KEPADA UNDANG2 OUT:000421 =continue= Kamay PIHAK POLIS KATANYA – HARUS DIHORMATI DAN DIBERI KEBEBASAN DALAM MENJALANKAN TUGASAN TANPA TERIKAT KEPADA MANA-MANA PIHAK. ENDS.” [115] The particular parts of the broadcast that were impugned are as follows:  Sementara itu, hujah Manjeet Singh Dhillon yang mengatakan polis bertindak keras terhadap tertuduh – diselar Ahli Parlimen Padang Serai, N. Gobalakrishnan.  Beliau menyifatkan hujah berkenaan, menampakkan usaha peguam itu dalam campur tangan bidang kuasa kepolisan.  Pada masa sama, kenyataan itu dijangka diambil peluang oleh pembangkang untuk memanipulasi isu terbabit demi kepentingan politik mereka.  Dan ini adalah untuk menjauhkan polis dari membuat kerja mereka yang sebenarnya, saya nampak ini dari dulu lagi dan ini akan memberi rangsangan mereka yang mahu serang polis misalnya. Tengok ramai di kalangan pembangkang berani serang kerana polis pun terikat dan tertakluk kepada undang2.  Pihak polis katanya – harus dihormati dan diberi kebebasan dalam menjalankan tugasan tanpa terikat kepada mana-mana pihak. 54 [116] The underlined parts of the impugned transcript [at paragraph 113 above] and the highlighted portion at paragraph 114 are the verbatim remarks or comments of the 1st defendant. The rest of the parts of the impugned broadcast are the 4th defendant’s comments on the 1st defendant’s remarks or comments. As the comments of the 4th defendant are being broadcasted, the plaintiff’s photo is freeze-framed with the word “Diselar” added over the photo. An audio visual copy of the impugned broadcast was produced at trial and in the appeal records/submissions. [117] The difficulty we have with the decision of the learned Judge is not so much with the approach that was adopted to determine the question of whether there is defamation - that the complained texts, photograph and the word “Diselar” had to be looked at holistically. Rather, it is in her evaluation, application of the principles and the conclusions drawn. Having said that, we remind ourselves that in the context of live TV coverage as is the case in the present appeal, holistically may have more than one meaning or imputation, and it is not necessarily that which was favoured by the learned Judge. [118] In the learned Judge’s mind, “an ordinary and reasonable viewer” is the viewer who actually watches both parts, that such a viewer would thereafter relate what is seen and heard in the second part to the first part. Having connected or related the two parts, the ordinary and reasonable viewer would then understand that the plaintiff was simply being criticized over his cross-examination of the police witness. Such 55 criticism is to be expected and is said not to lower the estimation of the plaintiff in the eyes of the ordinary and reasonable viewer. [119] With respect, this factual context is somewhat contrived. The ordinary and reasonable viewer is not necessarily the person who watched both parts. That viewer may only have watched either one of the two parts, and that part may just have been the second part. Is such a person any less the ordinary and reasonable viewer? We believe that surely cannot be so. In the context of television and primetime news, there is no opportunity for pauses, replays or rewinds. The 4th defendant must be prepared for the viewer who only views the part complained of and the ensuing question is whether such an ordinary and reasonable viewer, viewing that impugned broadcast, form a negative, disparaging view or opinion of the plaintiff? Will the plaintiff’s reputation, in the circumstances of the impugned broadcast, be lowered in the estimation of such a viewer? If the answer is in the positive, then the impugned broadcast is defamatory. [120] At the High Court, the word “Diselar” was understood to mean “strongly criticized” – see DW6’s evidence; DW6 testified for the 4th defendant. According to the learned Judge, Kamus Dewan [Edisi Keempat] construes the term “selar” to mean “mengecam, membidas (dengan kerasnya)”. Kamus Dewan [Edisi Keempat] defines the word “Diselar” as follows: “… mengecap (dgn kata-kata), mengecam, membidas (dengan kerasnya):…” 56 [121] According to Kamus Dwibahasa Oxford Fajar Inggeris – Melayu, Melayu - Inggeris [Edisi Ketiga 2001], the term “selar” in English, means “brand; mark of identification made with hot metal; menyelar: brand; mark with a brand; defame; attack the good reputation of”. All these words are words which carry strong impressions or meanings. In fact, one of the meanings to the word “selar” used as a noun is that it is a “branding-iron”; and when that same word is used as a verb, “selar-menyelar”, it means “to blame or accuse one another” – see Kamus Lengkap [Edisi Cetak Semula 1990]. [122] Each of the above meanings are the natural and ordinary meanings of the term “Diselar”. In Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362, the Privy Council held that: “The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or 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.” [123] The choice of the term is obviously deliberate by the 4th defendant, intending the same to be sensational and headline grabbing of attention following its understanding of the 1st defendant’s comments. The word “Diselar” is not reasonably capable of any positive meaning, naturally or otherwise. Consequently, we are in no doubt that an ordinary and reasonable viewer would understand the impugned broadcast to convey the ordinary and natural meaning that the plaintiff is strongly criticized, branded, censured or admonished for doing something wrong or for 57 unbecoming conduct or action. The impugned broadcast is certainly reasonably and objectively capable of the meanings complained of by the plaintiff; it would indeed lower the estimation of the plaintiff in the eyes of the TV audience of the 4th defendant. [124] Further, consistent with paragraph 11A of the Statement of Claim, it is clear from the above that the impugned broadcast includes the 1st defendant’s impugned remarks and comments. Those impugned comments were found to be defamatory by the learned Judge. Yet, in the context of the impugned broadcast, the learned Judge found those comments were not defamatory when those comments appearing in the second part of the broadcast are set against the first part of the broadcast. [125] We find this inconsistent finding unsustainable in law and on the facts, and plainly wrong. Once the defamatory remarks are reproduced or republished, those responsible for such republication of the defamation are equally liable in defamation. The defamation is not eroded republication is not neutralized We are of the further view that even if there was no other publication or no other defendant, the impugned broadcast is still defamatory. We agree with the plaintiff the impugned broadcast containing both the 1st and 4th defendants’ comments are defamatory of the plaintiff. The impugned broadcast made in the circumstances complained of, that is, with the photograph of the plaintiff and the word “Diselar”, does portray the plaintiff in the defamatory terms complained of at paragraphs 11B and 11C of the Statement of Claim. This was also confirmed by the 4th defendant’s main witness, DW6, Mohd Ashraf bin Abdullah, the Group Managing 58 Director TV & Radio. Contrary to the learned Judge’s findings, an ordinary and reasonable viewer would indeed, think worse of the plaintiff after viewing the impugned broadcast. [126] Finally, we must add that even if the two parts of the impugned broadcast were viewed together objectively, we cannot see how the effect is any less. We cannot see how the derogatory nature of the contents in the second part are in any way neutralized by those in the first part. The first part provides context to both the 1st and 4th defendants’ comments and actions, nothing more. The impugned broadcast remain published in permanent form and in defamatory terms. Implicit in the learned Judge’s findings is the acknowledgment that this second part of the transcript is defamatory, and it is. [127] We find support for this view from several authorities including the following. In Chalmers v Payne [1835] 2 Cr M&R 156, Alderson B explained about is essentially the “bane and antidote” effect upon the reading of the whole article as opposed to only reading the offending parts of an article: “But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff’s character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and the antidote must be taken together.” 59 [128] Learned counsel for the plaintiff argued that for this principle to succeed, it is the conclusion that must neutralize any negative or defamatory characterization that is to be found in the first or earlier part of the impugned broadcast. In the case of the impugned broadcast, it is the reverse; it is the second part of the transcript which is harmful of the plaintiff. [129] We agree. In Charleston & Another v News Group Newspapers Ltd & Another [1995] 2 WLR 450, Lord Bridge of Harwich gave some indication on how to treat the bane and antidote argument: “It is often a debatable question which the jury must resolve whether the antidote is effective to neutralize the bane and in determining this question the jury may certainly consider the mode of publication and the relative prominence given to different parts of it… Whether the text of a newspaper article will, in any particular case, be sufficient to neutralize the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralize it but also on the manner in which the whole of the relevant material is set out and presented. [130] The above two English decisions were cited with approval in Carole Caplin v Associated Newspapers Ltd [2011] EWHC 1567. [131] Like a story line, and as already pointed out, the first part of the impugned broadcast, is only to set the context. Beyond that, it becomes irrelevant to the point of being redundant. Thus, when balancing the two 60 parts of the impugned broadcast together, taking into account the manner in which the two parts are presented and the contents of those two parts, the re-use of the plaintiff’s photo which appeared in the first part for the second part but now with the word “Diselar” emblazoned on the photo, in our opinion, an ordinary and reasonable viewer, would actually be left in a position to think worse of the plaintiff; and to think of the plaintiff in the terms complained of. In the context of television, it would be fair and reasonable to say that it is the last visual and words that will leave an imprint. [132] With respect to learned counsel for the 4th defendant, we cannot agree with the suggestion that a reasonable man, viewing the whole news programme, will come away with the clear impression that as to be expected from a seasoned advocate, the plaintiff was simply advancing his client’s interest as far as possible, carrying out his duties as a defence counsel, with great distinction; and that where he had to be robust in attacking the police, he did so, without fear or reservation. We are in no doubt, as was the trial Judge, that the 1st defendant was not just expressing an opinion as to the effect or implication of the plaintiff’s vigorous cross-examination of the police witness; he had made a scathing, unwarranted and unprovoked criticism of the plaintiff, without even being in Court to be aware of the proceedings. Such criticism has far exceeded the realm of reasonable opinion and objectivity. We are of the opinion that viewed as a whole, the plaintiff’s complaints further do not pertain to the deployment of the word “Diselar” or to the display of his photograph alone but also to the total comments that appear in the transcripts as pleaded. 61 [133] Consequently, we are of the view that the learned Judge has fallen into grave error in this respect. The learned Judge was plainly wrong in dismissing the plaintiff’s claim against the 4th defendant. The decision of the learned Judge against the 4th defendant is therefore set aside. [134] The principal defences relied on by the 4th defendant are qualified privilege and fair comment, including the defence of absolute privilege under section 11 of the Defamation Act 1957. This was not addressed by the learned Judge since the claim was dismissed against the 4th defendant. [135] The essence of the 4th defendant’s defence is that the impugned broadcast was a reflection of their responsible journalism where the impugned broadcast was published in the public interest. In Adams v Ward [1917] AC 309, this defence of qualified privilege was explained in the following terms: “A privilege occasion is an occasion where the person who makes the communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.” [136] The law on qualified privilege is settled from the decisions of the Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 8 CLJ 477, and the Court of Appeal decisions in Dato Sri Dr Mohamad Salleh Ismail & Anor v Nurul Izzah Anwar & Anor [2018] 5 MLRA 509; Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [supra]. In fact, in Dato Sri Dr Mohamad 62 Salleh Ismail & Anor, the Court of Appeal puts it quite succinctly as thus: [55] A defence of qualified privilege is founded on the need or duty on the part of the alleged defamer to impart information to the public at large and that there is a duty on the part of the public to receive that information. In a defence of qualified privilege, unlike justification, truth is not a pre-requisite but it can only succeed if there is no malice in such publication. If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim for defamation. Although the law of defamation exists to protect reputations, it is recognized that in particular situations it is to the benefit of society generally for people to be able to communicate without fear of being sued for defamation. This is so despite the risk that a person’s reputation will be damaged and they will not be able to restore it by bringing a claim for defamation. Its rationale resides in the wider consideration that a general public good in such exercise overrides the need to protect individual reputation. [emphasis added] [137] Where there is no interest or duty on the part of the public to receive that information, the burden of proof which lies with the 4th defendant, is not discharged, and the defence is thereby, unavailable to the 4th defendant – see Jameel v Wall Street Journal [2006] 4 All ER 1279 and Flood v Times Newspaper Limited [2012] UKSC 11. [138] In the seminal decision of Reynolds v Times Newspaper Ltd & Others [2001] AC 127, the House of Lords acknowledged that this defence of qualified privilege was available to the media. That decision, 63 as submitted by learned counsel for the 4th defendant “marked a significant milestone for press freedom against defamation actions.” [139] We have no argument with that line of submission, that where media or press defendants raise the defence of qualified privilege, the thrust of their contention is that qualified privilege is accorded to the media or press as some degree of protection for their responsible journalism. The availability of this defence to such defendants was discussed in Sivabalan a/p Pasapathy v The New Straits Times [2010] 7 CLJ 885, and we agree with the views expressed therein: “…the Reynolds privilege was considered and applied by the High Court in the case of Tan Sri Dato Tan Kok Ping v The New Straits Times [2010] 3 CLJ

For myself, I would hold that his new defence is available to the defendants. I think we need to move with the times and we also need to view the situation with today’s eyes. A number of countries with common law traditions comparable to those of Malaysia have moved in recent years to modify the law of defamation to provide greater protection for communication on matters of public interest. The Reynolds’ privilege represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Malaysian society. It is clear that the law has begun to shift in favour of broader defences for press defendants most prominently in England and Canada but also in Australia.” [140] But, that defence is extended only where the principles or factors laid down by Lord Nichols in Reynolds v Times Newspaper Ltd & Others have been met. That defence is predicated on public interest and responsible journalism; that the media has a duty to disseminate information of public interest. In Jameel’s case where Wall Street 64 Journal’s defence based on the Reynolds’ principles was allowed, Lord Hoffman explained: “…Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputation of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved.” [141] The following is a list of matters to be taken into account in determining whether the defence of qualified privilege should be accorded because responsible journalism is practiced. However, as cautioned by Lord Nichols, “[T]he weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound...”:

(a) The subject matter of publication was a matter of public interest and in this regard, the 4th defendant refers to and adopts the particulars pleaded in paragraph 16 above.

(b) Further, the 4th defendant exercised responsible journalism in the production and presentation of the news programme over its TV channel on 16.8.2011 and in particular the 4th defendant avers and will contend as follows:

(i) The subject matter of the news programme was taken from Court proceedings involving the Trial in the Sosilawati matter. As such, the source of the programme was reliable.

(v) The news programme included a report of the position taken by the plaintiff as defence counsel in suggesting that the 68 investigative process by the police was defective and left much to be desired. [146] On this, we must remind that our views expressed earlier in respect of this same defence relied on by the 2nd and 3rd defendants, apply equally here. If the 4th defendant published by airing the defamatory material “recklessly, without considering or caring whether it be true or not”, then this defendant, like the 2nd and 3rd defendants, will “be treated as if he knew it to be false”. [147] Returning then to the defence, it would be fair to say that paramount is the establishment of a news item or programme which is not merely newsworthy but which is of public interest. Pursuant to paragraphs 16 and 17, the 4th defendant claims that the subject matter of the news programme is of public interest, specifically, it is the “accusations of the insidious conduct on the part of an Advocate and Solicitor including murder, deception and etc. are matters of public interest”. And, when the 1st defendant, a Member of Parliament for the ruling party makes a statement on that subject matter, the 4th defendant claims that such statement “could reasonably be taken seriously and considered to be newsworthy.” [148] We opine that while we are prepared to accept that the subject matter emanating from the Sosilawati murder trial is of public interest in the terms relied on by the 4th defendant, we are not at all, inclined to accept the other half of the proposition, that when a view or statement is expressed on that subject matter by a Member of Parliament, whether of the ruling party or otherwise, that statement “could reasonably be taken 69 seriously and considered to be newsworthy.” In our view, it depends entirely on the facts and circumstances of the statement expressed including the 10 Reynolds’ principles; more realistically and sensibly, it depends on the contents of the statement. As we have seen in this appeal, the contents of the statement issued by the 1st defendant, a Member of Parliament, is entirely defamatory and indefensible. It would be disastrous for any Court to accept the proposition of the 4th defendant, without more. Members of Parliament, like any other member of society, may have feet of clay. [149] Furthermore, when the transcript is examined, it becomes apparent that it is not the subject matter which is being criticized, or even the accused or what the responses of the witnesses were, as that treads into concerns of sub judice. The criticisms are entirely of the plaintiff. [150] For the same reasons, we also cannot agree with the 4th defendant that there is basis for any honest belief in what was broadcasted in the impugned broadcast. After all, the 4th defendant had only one source, the 1st defendant. Thus, while the subject matter may concern a matter of public interest, what is informed to the public must relate to that matter. [151] We add that we cannot accept the 4th defendant’s argument that because of the plaintiff’s impressive credentials and particular prominence at the criminal litigation bar coupled with the intensive and sensational trial that had attracted public comments, comments and criticisms from the 1st defendant, a Member of Parliament, was to be expected. And, when such criticisms are made, and reported by the 4th 70 defendant, “the ordinary reasonable man will not think worse of the plaintiff.” [152] This line of submissions appear to have found favour with the learned Judge. With respect, we cannot agree with the learned Judge that any counsel handling a criminal case, especially one that is as high profile as the Sosilawati murder trial, must expect and accept criticism over or of, his conduct or handling of the trial. In other words, criticism is expected. And, so when there is in fact criticism, the “ordinary reasonable man will not think worse of the plaintiff.” This view is in contradiction of the earlier view reached when deliberating of the claim against the first three defendants. [153] Given the seriousness of the criticisms or censuring by the 1st defendant; the stature of the plaintiff; the nature of the allegations made against such a senior and reputable counsel; the tone of the criticisms; the fact that it was the 1st defendant who approached the 4th defendant and not the other way round and the relationship of the 1st defendant with DSAI; the lack of urgency in the news, we are fully convinced that it was beholden on the 4th defendant to take steps to verify the information given by the 1st defendant. Since the 1st defendant was not in Court at the material time, it was necessary that the 4th defendant take the minimum step of verifying with the plaintiff. Instead, the evidence indicates a reckless disregard for the truth, with the 4th defendant adopting the 1st defendant’s comments and giving it underserved heightened attention. 71 [154] Contrary to the submissions of the 4th defendant, we are of the view that the principal elements of qualified privilege have not been satisfied and the defence is not available to the 4th defendant. The Reynolds’ principles, as identified, have not been met leaving us with the single conclusion that the 4th defendant has not practised responsible journalism on the facts and circumstances. [155] For the same reasons, we find that the defence of fair comment, on the principles as earlier discussed in relation to the 2nd and 3rd defendants, are equally not available to the 4th defendant. The learned Judge was plainly erroneous in not properly evaluating this part of the plaintiff’s claim and we are compelled to intervene. The claim of the plaintiff against the 4th defendant was proved on a balance of probabilities and therefore ought to have been allowed. The plaintiff’s appeal is of merit and is consequently allowed. Damages [156] The learned Judge ordered a total sum of RM350,000.00 as compensatory damages to be paid; the 1st defendant to pay the sum of RM150,000.00 while the 2nd and 3rd defendants to pay the sum of RM200,000.00. We agree that these sums are fair and adequate. [157] In relation to the 4th defendant, taking into account the factors already discussed earlier, we are of the view that the sum of RM200,000.00 as awarded against the 2nd and 3rd defendants, should also be ordered against the 4th defendant; and we so order. 72 Conclusion [158] For the reasons discussed above, we make the following orders: i. Appeal by the 1st defendant in Civil Appeal No. W- 02(NCVC)(W)-1742-10/2015 is dismissed with costs as we see no merits in the appeal. The decision of the High Court is affirmed. ii. Appeal by the 2nd and 3rd defendants in Civil Appeal No. W- 02(NCVC)(W)-1640-10/2015 is also dismissed with costs as we are also of the unanimous view that there are no merits in the appeal. The decision of the High Court is affirmed. iii. Appeal by the plaintiff in Civil Appeal No. W-02(NCVC)(W)- 1679-10/2015 is allowed with costs as we are of the unanimous view that this appeal has merits. The decision of the learned Judge in respect of the plaintiff’s claim against the 4th defendant is set aside. We agree with the plaintiff that the learned Judge is in error and we invoke our appellate powers in setting aside that part of the decision in respect of the 4th defendant. We find that the plaintiff has proved his case against the 4th defendant and that the defences relied on are not available. It therefore follows that the claim must be allowed and we order the 4th defendant to pay the plaintiff general damages of the sum of RM200,000.00 together with 73 interest at the rate of 5% per annum from the date of judgment to the date of realization. Dated: 16th January 2019 (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia Counsel/Solicitors CIVIL APPEAL NO: W-02(NCVC)(W)-1640-10/2015 For the appellants: Muhammad Shafee Abdullah (Sarah Abishaam, Shairah Hanapiah, Zahira Eleena with him) Messrs Shafee & Co Chamber Twenty-Five No. 25, Jalan Tunku Bukit Tunku, 50480 Kuala Lumpur For the respondent: Americk Sidhu Messrs Americk Sidhu North Block, Ampwalk 218 Jalan Ampang 50450 Kuala Lumpur 74 CIVIL APPEAL NO: W-02(NCVC)(W)-1679-10/2015 For the appellants: Americk Sidhu Messrs Americk Sidhu North Block, Ampwalk 218 Jalan Ampang 50450 Kuala Lumpur For the respondent: Liew Teck Huat (Lim Qi Si with him) Messrs Suflan Th Liew & Partners Level 3, Blok B, Plaza Damansara, No. 45 Medan Setia 1, Bukit Damansara, 50490 Kuala Lumpur CIVIL APPEAL NO: W-02(NCVC)(W)-1742-10/2015 For the appellants: Hasnal Rezua Merican (Muzammil Merican with him) Messrs Kamarul Hisham & Hasnal Rezua P-2-26, Plaza Damas, 60, Jalan Sri Hartamas 1, Sri Hartamas, 50480 Kuala Lumpur. For the respondent: Americk Sidhu Messrs Americk Sidhu North Block, Ampwalk 218 Jalan Ampang 50450 Kuala Lumpur